author: BISHOP, J.

text:
    THOMAS SANDERS v. COMMISSIONER OF CORRECTION
    (AC 24219)
    Lavery, C. J., and Bishop and West, Js.
    Argued March 22
    officially released June 29, 2004

      Jo Anne Sulik, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellant (respondent).

      Michael O. Sheehan, special public defender, with whom, on the brief, was Richard A. Reeve, special public defender, for the appellee (petitioner).
   Opinion

BISHOP, J.

The respondent commissioner of correction appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus that was filed by the petitioner, Thomas Sanders. The respondent claims that the court improperly (1) considered a claim that was not raised in the petition, (2) concluded that the petitioner’s trial counsel was ineffective for failing to advise the petitioner properly of a plea offer from the state at the petitioner’s underlying criminal trial and (3) concluded that the petitioner was prejudiced by counsel’s deficient performance. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The petitioner was arrested in the underlying criminal matter in June, 1991, on charges of robbery in the first degree, conspiracy to commit robbery in the first degree, carrying a pistol without a permit and assault in the first degree, as a result of a shooting on Lamberton Street in New Haven. In November, 1991, the petitioner was arrested on an additional matter, this time in connection with the robbery of two students on the Pearl Harbor Memorial Bridge, commonly referred to as the “Q Bridge” in New Haven. On both matters, the petitioner was represented by Thomas M. Conroy, a special public defender. In February, 1993, Conroy conveyed to the petitioner the state’s plea offer on both matters for an effective sentence of fifteen years incarceration, execution suspended after ten years, in exchange for guilty pleas on both pending cases. The petitioner rejected the offer and subsequently retained Ernest J. Diette, Jr., as replacement counsel. In October, 1993, after a trial by jury on the Q Bridge robbery, the petitioner was convicted of robbeiy in the first degree, conspiracy to commit robbery in the first degree and larceny in the third degree. He was sentenced on October 15,1993, to fourteen years incarceration, execution suspended after nine years, with three years probation on the robbery charges.

At the habeas hearing, Gary W. Nicholson, the assistant state’s attorney who had prosecuted the petitioner in the underlying criminal matter, testified that in February, 1993, the state extended a second plea offer to the petitioner on the underlying criminal matter. Under that offer the petitioner would have received eighteen years incarceration, suspended after twelve years, to run concurrently with the sentence on the Q Bridge robbery, to resolve the underlying criminal matter, as well as two new pending sexual assault and failure to appear charges. The offer was conveyed to Diette during a pretrial conference in the courthouse in New Haven. According to Nicholson, Diette, who did not testify at the habeas hearing, left the room, returned a short while later and informed him that the petitioner had rejected the offer. The petitioner then proceeded to trial and was convicted of attempt to commit assault in the first degree and carrying a pistol without a permit. See State v. Sanders, 54 Conn. App. 732, 738 A.2d 674, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999). He was sentenced to twenty years incarceration for attempt to commit assault in the first degree and five years for carrying a pistol without a permit, the sentence to run consecutively to the petitioner’s sentence for the Q Bridge robbery.

Following his unsuccessful appeal, the petitioner filed a two count amended petition for a writ of habeas corpus in which he alleged that trial counsel was ineffective for (1) failing to engage meaningfully in plea bargaining and to advise the petitioner in a timely manner of the state’s position regarding plea negotiations prior to trial and (2) failing to advise the petitioner of his rights to sentence review and appeal.

According to the petitioner, he was never informed of the state’s second offer that Nicholson made in February, 1993, and he would have accepted it if he had been informed of such an offer. Evidence was adduced at the habeas hearing that the petitioner, who had been incarcerated pending his trial, was not in court from the date he was sentenced on the Q Bridge robbery to the date he began selecting a jury in the underlying criminal matter. The petitioner also testified that he was never informed of or shown by Diette the statements of two witnesses against him. Additionally, he claimed that he was never informed that the statements could be used against him at trial or of the likely consequences of proceeding to trial. He also alleged that Diette never explained to him that he could apply for a review of the sentence imposed as a result of his conviction.

The court concluded that the petitioner was informed of the second offer. The court, however, also determined that the offer was not meaningfully explained to the petitioner. On that basis, the court concluded that Diette had rendered ineffective assistance by failing to explain meaningfully Nicholson’s plea offer. The court found that the petitioner had been prejudiced by his counsel’s failure and granted the petition for a writ of habeas corpus. The court ordered that the petitioner’s sentence be reduced to reflect the February, 1993 plea offer pending his entering of guilty pleas in accordance with the terms of the offer. This appeal followed.

I

The respondent first claims that the court, in granting the petition, incorrectly considered a claim that was not raised in the petition. Specifically, the respondent alleges that the petitioner’s claim that the second plea offer was not meaningfully explained to him was not properly before the court. We disagree.

We begin by addressing the legal principles that guide our assessment. It is well established that “[t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Citations omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

Contrary to the respondent’s assertion, the petitioner’s claim that the plea agreement was not meaningfully explained to him was fairly before the court. The second amended petition includes the claim that “[attorney Diette failed to convey the trial court’s position on plea bargaining as well as the likely consequences of an adverse decision by the juiy and the consequences for sentencing in this case.” Although the petition may not have expressly used the words “meaningfully explain,” a fair reading of the petition makes it clear that the petitioner was challenging his counsel’s performance as it related to the plea offer. Additionally, the petitioner’s testimony at the habeas trial regarding the state’s second plea offer provided fair notice to the respondent of the contours of the claim. Consequently, because both the petition and the petitioner’s hearing testimony put the respondent on notice as to the petitioner’s claim regarding the plea offer, the court did not render judgment on a claim that was not raised in the petition. Accordingly, that claim fails.

II

The respondent next argues that the court incorrectly concluded that the petitioner’s trial counsel rendered ineffective assistance. Specifically, the respondent claims that counsel was effective and, in the alternative, that the petitioner was not prejudiced by counsel’s ineffective assistance. We disagree.

As a prelude to our discussion, we set forth our standard of review as well as an overview of relevant habeas corpus law. “Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 797, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413 (2004).

The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. “In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn. App. 798.

A

The respondent first argues that there is no evidence in the record to support the court’s factual finding that the second plea offer was not explained meaningfully to the petitioner. After reviewing the record, we conclude that there were sufficient facts from which the court could reach its determination that the plea offer had not been meaningfully explained to the petitioner. The petitioner’s testimony was sufficient to establish that he was never informed about or shown the statements of the witnesses against him and that he was not told of the likely outcome if the case proceeded to trial. Although the petitioner never explicitly stated that the plea offer was not fully explained to him, and, in fact, he claimed that the offer was never made to him at all, the lapses in counsel’s performance about which the petitioner did testify provided an adequate basis for the court’s determination that the plea was not meaningfully explained to him. As to the respondent’s argument that the court’s conclusion that the plea offer was extended but not explained meaningfully was logically inconsistent, we note that the court, as the trier of fact, was the sole arbiter of facts and credibility and was free to believe in whole or in part the petitioner’s testimony. See Spivey v. Commissioner of Correction, 80 Conn. App. 58, 61, 832 A.2d 1204 (2003). The court also was free to draw reasonable inferences from that testimony when rendering judgment. See id. Accordingly, we conclude that the court’s factual findings in that regard were not clearly erroneous.

B

The respondent next argues that the court did not properly apply the presumption that counsel’s conduct was reasonable. Specifically, the respondent argues that the court improperly concluded that the presumption did not apply and that the court effectively relieved the petitioner of his burden of proving the allegations of his petition. We disagree.

The following additional facts are relevant to our discussion of that issue. At the habeas hearing, in addition to the evidence presented regarding the plea agreement, the court heard evidence concerning other aspects of Diette’s performance. Specifically, the petitioner testified that counsel failed to inform him of his right to seek a review of his sentence and to appeal from his conviction. The court concluded that Diette was ineffective for not having advised the petitioner regarding his right to sentence review and for not having explored that opportunity on his behalf. On the basis of that finding, as well as the court’s determination that Diette had failed to inform the petitioner about the statements of the witnesses, the likely use of those statements at trial and the potential negative consequences of going to trial, the court concluded that the presumption of competence had been rebutted. Consequently, the court did not accord a presumption of competence in its review of Diette’s performance regarding the state’s second plea offer. With those additional facts at hand, we now turn to the respondent’s claim.

It is well established that when analyzing a claim of ineffective assistance, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, supra, 466 U.S. 690. Nowhere is it said, though, that such a presumption is irrebuttable. As with any refutable presumption, the petitioner may rebut the presumption on adequate proof of sufficient facts indicating a less than competent performance by counsel. In determining whether the presumption should apply, we agree with the court that other acts of ineffective assistance in the same matter may be considered in making that determination. In light of the court’s determinations regarding counsel’s other errors, we do not believe that the court was required to hold steadfast to the Strickland presumption in its assessment of counsel’s performance regarding his communication to the petitioner of the state’s second plea offer.

We agree, of course, with the respondent that the court’s conclusion that the presumption of competence did not apply, did not relieve the petitioner of proving each of his allegations. In short, proof of ineffective assistance in one area of representation in the same matter, while eroding the presumption of competence applicable to counsel’s representation generally, does not serve to relieve the petitioner from proving that counsel’s performance was deficient in regard to the plea offer. See id. We disagree, however, with the respondent’s claim that the court relieved the petitioner of that burden. As we have noted, there was sufficient evidence to support the court’s factual conclusion that the second plea offer was not meaningfully explained to the petitioner. Consequently, that claim, too, fails.

C

Last, the respondent claims that there was no evidence to support the conclusion that the petitioner was prejudiced by his counsel's deficient performance.

Under Strickland, it is not sufficient to find that counsel rendered ineffective assistance; rather, the court also must find that the petitioner was prejudiced by that action. To satisfy Strickland, under the circumstances of this case, the petitioner had to show that he would have accepted the offer and that the court would have rendered judgment in accordance with that offer. See Cimino v. Robinson, 6 Conn. App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 (1986).

The respondent argues that the petitioner failed to prove that he would have accepted the offer had it been meaningfully explained to him. He argues that the petitioner’s statement that “had he been given the offer, he would have accepted it” is insufficient to satisfy Strickland in light of the court’s conclusion that the second plea offer was made. We glean from the respondent’s brief that the respondent claims that in order to prove prejudice in the present case, the petitioner would have had to state explicitly that he would have accepted the offer had it been meaningfully explained to him. We do not believe, however, that such an exact statement was required. As the arbiter of facts, the corut was required to evaluate the evidence and was permitted to make all reasonable and logical conclusions from the facts presented. See State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). Accordingly, it was permissible for the court to infer from the petitioner’s statement that “had the offer been made, he would have accepted it,” that he would have accepted the offer if it had been meaningfully explained. Consequently, the court’s factual conclusion was not clearly erroneous.

The respondent also argues that as a matter of law, the testimony of the petitioner alone is insufficient to satisfy the prejudice prong of Strickland. We disagree.

It is well established that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). Although testimony by the petitioner may be self-serving or suspect, it was for the court to determine the weight to be given to such testimony. We can find no support in our jurisdiction for the proposition that corroboration is required in a habeas proceeding for a court to conclude that the petitioner was prejudiced. The court was in a unique position to assess the demeanor and credibility of the petitioner, and we will not disturb its findings on appeal. See Spivey v. Commissioner of Correction, supra, 80 Conn. App. 61. Accordingly, that claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also found that the petitioner's counsel failed to advise him timely of and to apply for sentence review. That finding is not challenged on appeal.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    FRANCES S. HARTNEY v. ROBERT J. HARTNEY
    (AC 23717)
    (AC 24206)
    Dranginis, West and Stoughton, Js.

      Argued April 2
    officially released June 29, 2004

      James Colin Mulholland, for the appellant (defendant).

      Edith F. McClure, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

These consolidated appeals arise out of the dissolution of the parties’ forty year marriage. With respect to the judgment of dissolution, AC 23717, the defendant, Robert J. Hartney, claims that the trial court improperly (1) denied his motion for a new trial, (2) awarded alimony on the basis of the gross incomes rather than the net incomes of the parties, (3) ordered that he secure his alimony obligation with a policy of life insurance for the benefit of the plaintiff, (4) found that funds in a certain bank account were not his inheritance, (5) apportioned funds maintained in the parties’ bank accounts and (6) concluded that he had the greater responsibility for the breakdown of the parties’ marriage. As to the appeal from the judgment issuing a restraining order against him, AC 24206, the defendant claims that the court abused its discretion under General Statutes § 46b-15. We affirm the judgment of the trial court dissolving the parties’ marriage and dismiss as moot the defendant’s appeal from the judgment concerning the restraining order.

The following facts are relevant to our resolution of the appeals. The plaintiff, Frances S. Hartney, and the defendant were married in 1962. At the time of the dissolution hearing, the plaintiff was sixty-one years old, and the defendant was sixty-two. Both of them were in good health. They have three adult children. Until the time the dissolution action was pending, the couple had resided in the family home in Plainville. The defendant was employed as a program manager by the Pratt and Whitney division of United Technologies Corporation. The plaintiff had been employed sporadically, part-time, outside the home while the children were young. She sought more regular employment beginning in 1990. At the time of the dissolution, she was employed full-time by LensCrafters, Inc.

The defendant was of the opinion that for many years, there was nothing wrong with the parties’ marriage. The court, however, found that the marriage had been a troubled one for a long time. The defendant had been physically abusive, had an explosive temper and controlled the family’s finances. Except for the family home, the assets accumulated during the marriage were in the defendant’s name alone. The defendant admitted to being angry and depressed and that he had had a breakdown when the dissolution action was filed.

The court concluded that the marriage had broken down in 1990, if not earlier. In that year, the defendant was angry with the plaintiff and threatened to divorce her if she did not do as he wanted. The plaintiff took the defendant’s threat to heart and began saving money in order to divorce him. The plaintiff initiated a dissolution action in 1998, but withdrew it when the parties entered marriage counseling at the defendant’s request. The defendant’s behavior did not benefit from counseling, and the plaintiff commenced a second dissolution action in January, 2001. The parties continued to reside in the family home until December, 2001, when the court issued a restraining order against the defendant pursuant to § 46b-15.

On August 2, 2002, following a July, 2002 trial, the court issued a memorandum of decision containing its support orders and division of property. Through inadvertence, the court neglected to order the dissolution of the parties’ marriage. The defendant filed a motion to reargue and for reconsideration on August 20, 2002. The court issued another memorandum of decision dated November 27,2002, in which it corrected its oversight regarding the dissolution of the marriage and articulated some of its orders. The court stated that it had reconsidered the matters requested by the defendant, but declined to alter its orders regarding property distribution and the use of life insurance to secure the periodic alimony payments. The defendant thereafter filed a motion to open and to vacate the judgment, which the court denied. The defendant appealed from the judgment of dissolution.

I

APPEAL FROM THE JUDGMENT OF DISSOLUTION

The defendant raised six issues in his appeal. At the time of oral argument in this court, he withdrew his claim that the court improperly denied his motion for a new trial under General Statutes § 51-183b. We have reviewed the defendant’s remaining claims and affirm the judgment dissolving the parties’ marriage.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 7-8, 752 A.2d 1087 (1999).

“With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . [Jjudicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 530-31, 752 A.2d 978 (1998).

A

The defendant claims that the court improperly awarded the plaintiff alimony on the basis of the gross incomes, rather than the net incomes of the parties. We disagree.

In its memorandum of decision, the court found that the defendant earned $63,400 per year and the plaintiff earned $20,300 per year. The court ordered the defendant to pay the plaintiff alimony in the amount of $275 per week until the death of either party or the plaintiffs remarriage. Although the memorandum of decision did not refer to gross or net incomes, the defendant argues that the court improperly based its alimony award on the parties’ gross incomes. The plaintiff has pointed out that the court heard testimony as to the net incomes of both of the parties, and the court stated that it had considered General Statutes § 46b-82 when fashioning its award of alimony.

Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes. If the court considers the relevant statutory criteria when making its alimony and support award, the award may not be disturbed unless the court has abused its discretion. See Graham v. Graham, 25 Conn. App. 41, 45, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). Nonetheless, a “trial court must base periodic alimony . . . orders on the available net income of the parties. . . . Gross earnings is not a criterion for awards of alimony. It is the net income, which is available to the [defendant], which the court must consider.” (Internal quotation marks omitted.) Ludgin v. McGowan, 64 Conn. App. 355, 358, 780 A.2d 198 (2001).

Our review of the record, including the court’s memorandum of decision, demonstrates that the court considered the statutory criteria of § 46b-82 when making its alimony award. The court also heard evidence regarding the parties’ gross and net incomes. Furthermore, unlike the trial court in Ludgin, the court in this case did not make repeated references to or comparisons of gross income. Compare id.; see also Febbroriello v. Febbroriello, 21 Conn. App. 200, 203, 572 A.2d 1032 (1990). We therefore conclude that the court did not abuse its discretion in awarding the plaintiff periodic alimony in the amount of $275 per week.

B

The defendant’s second claim is that (1) the court’s order regarding life insurance impermissibly extended alimony payments beyond his natural life and (2) the court’s later clarification of the intent of the life insurance impermissibly changed the character of the life insurance from that of security for alimony payments to a property distribution. We are not persuaded.

The following facts are relevant to the defendant’s claim. In its August 2, 2002 memorandum of decision, the court ordered that the defendant maintain a life insurance policy in the amount of $126,000, naming the plaintiff as the irrevocable beneficiary of the policy during the term of alimony. The life insurance is to secure the alimony. In his motion for reconsideration, the defendant argued that because his obligation to pay alimony will terminate on his death, there is no need for any life insurance coverage, which is paid upon death. Also, he argued, the court’s use of the word “secure” suggests that the court was imposing an order for collateral to secure the alimony payments during his lifetime. He argued that some other type of order would be more suited to that puipose. He therefore requested that the order concerning life insurance be vacated.

In its memorandum of decision on the defendant’s motion for reconsideration, the court stated wdth respect to its life insurance order: “Contrary to the defendant’s belief, this insurance is to provide the plaintiff a sum to replace rather than ‘secure’ the expected alimony income stream in the event of the defendant’s demise. The court finds that it is appropriate where the alimony is periodic and for an uncertain, rather than a fixed duration.”

Section 46b-82 governs the award of alimony in dissolution cases and provides in relevant part that “[a]t the time of entering the [dissolution] decree, the Superior Court may order either of the parties to pay alimony to the other .... The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. ...” (Emphasis added.) General Statutes § 46b-82. “An order directing a party to maintain life insurance as security for alimony is veiy often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts.” (Internal quotation marks omitted.) Cordone v. Cordone, 51 Conn. App. 530, 533, 752 A.2d 1082 (1999).

Furthermore, our Supreme Court has determined that an order designating a spouse as the beneficiary of a life insurance policy is well within the court’s equitable power. Gallo v. Gallo, 184 Conn. 36, 47, 440 A.2d 782 (1981). “Insurance premiums are paid during a decedent’s lifetime and the proceeds flow directly to the beneficiary. This is not analogous to a claim of continued payment of periodic alimony from the estate of the deceased ex-spouse.” Id., distinguishing Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 437, 162 A.2d 182 (1960), a case on which the defendant relies.

We conclude, therefore, that the court acted well within its discretion to order the defendant to secure his alimony obligation by means of a $126,000 insurance policy that he owned at the time of the dissolution.

As to his second claim that the court, in response to his request for reargument and reconsideration, changed the character of the purpose of the life insurance policy, we point out that the defendant asked the court to reconsider its life insurance order. The court affirmatively responded to his request, but declined to vacate its life insurance order and concluded that the plaintiff should be provided with income in the event of the defendant’s demise. We can reach no conclusion other than that the defendant received what he requested, a reconsideration of the life insurance order.

c

The defendant’s third claim is that the court improperly awarded one half of the funds in a certain Sovereign Bank account to the plaintiff as a portion of the division of marital assets. He claims that this division of the funds in the account was improper because he alone owned the account, and the funds therein were an inheritance he had received from his mother. We do not agree.

General Statutes § 46b-81 (a) provides in relevant part: “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 fact that the defendant, subsequent to his marriage to the plaintiff, received an inheritance from his mother “does not operate to exclude this property from the marital assets. Cf. North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981) (property acquired by inheritance may be assigned under § 46b-81).” Watson v. Watson, 221 Conn. 698, 711, 607 A.2d 383 (1992).

Here, the defendant has cited no law to support his argument that the court may not award funds acquired by inheritance as part of a property division in a dissolution action. Furthermore, the court did not credit the defendant’s testimony that the funds in the Sovereign Bank account came wholly from his inheritance. The court found that the funds in the account came from his earnings. The court also found that the defendant’s bank accounts had a troubled history, and that he had been ordered to restore funds he had removed from the accounts while the action was pending. See DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294 (court is arbiter of credibility, facts), cert. denied, 264 Conn. 921, 828 A.2d 617 (2003).

Under the circumstances of this case, the court did not abuse its discretion or misapply the law; see Wei man v. Weiman, 188 Conn. 232, 234-35, 449 A.2d 151 (1982); when it awarded the plaintiff one half of the funds in the Sovereign Bank account.

D

The defendant’s next claim is that the court improperly divided the funds the parties maintained in various bank accounts. In its memorandum of decision regarding the defendant’s motion to reargue and for reconsideration, the court stated that it was unpersuaded by the calculations the defendant urged it to accept. According to the court, the defendant “fail[ed] to take into account what the distribution would have been without the deductions the court found the defendant should not have made.”

Factual and credibility determinations are made by the trial court. DiVito v. DiVito, supra, 77 Conn. App. 138. The defendant failed to demonstrate that the court’s findings were clearly erroneous, and he has cited no law in support of his claim. We therefore are unmoved by his argument.

E

The defendant’s final claim is that the court improperly determined that he was the greater cause of the marital breakdown. The basis of the defendant’s claim is that the court found that during an argument between the parties in 1990, the defendant threatened the plaintiff with divorce. The plaintiff thereafter saved money in a bank account in order to finance the dissolution action that she initiated in 1998. The court concluded that the marriage broke down in 1990, if not earlier, and that the defendant largely was to blame, given his outbursts of temper and controlling nature. On the basis of our review of the record, we cannot conclude that the court’s finding was clearly erroneous. See, e.g., Jewett v. Jewett, 265 Conn. 269, 692, 830 A.2d 193 (2003) (clearly erroneous standard applies to finding fault for marital breakdown).

For the foregoing reasons, we affirm the judgment of dissolution.

II

APPEAL FROM THE JUDGMENT GRANTING THE RESTRAINING ORDER

The defendant claims that it was improper for the court, postdissolution, to enter a restraining order against him, pursuant to § 46b-15, because he did not present a continuous threat of present physical pain or physical injury to the plaintiff. The plaintiff has argued that we should not address the defendant’s claim because it is briefed inadequately and because the issue is moot. Because the restraining order has been vacated, we dismiss the appeal as moot.

The following facts are relevant to the defendant’s appeal. Although the dissolution action was pending, the parties continued to reside in the marital home at 5 Kari Drive in Plainville. On December 10, 2001, however, the court entered a restraining order against the defendant, and he vacated the premises. The restraining order was continued until the time of dissolution. As part of its judgment of dissolution, the court ordered that the plaintiff quitclaim her one-half interest in the family home to the defendant upon his payment of one half of the value of the premises. The court ordered that the plaintiff have exclusive use of the premises until the defendant secured the funds necessary to purchase the plaintiffs share of the family home. In its August 2, 2002 memorandum of decision, the court ordered that the December, 2001 restraining order against the defendant be vacated because it was no longer needed.

In January, 2003, the plaintiff again filed an application for a § 46b-15 restraining order against the defendant. The court granted the application, and the defendant filed a motion for reconsideration. In its memorandum of decision denying the defendant’s motion for reconsideration, the court set forth its reasons for having granted the restraining order, including its findings that the defendant had twice broken into 5 Kari Drive, that he had stalked the plaintiff and that his appearance conveyed the impression that he could explode in anger at any time. The court concluded that his demeanor and behavior represented a present and continuous threat of physical harm to the plaintiff. The court entered the restraining order for a period of six months. The defendant appealed.

At oral argument, the parties represented that the restraining order was vacated when the defendant paid certain moneys to the plaintiff and she transferred her interest in 5 Kari Drive to the defendant. The plaintiff, therefore, claims that the appeal is moot. We agree.

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings. . . . The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).

In this instance, the subject restraining order has been vacated, and there is no practical relief that we can provide. The defendant claims, however, that the issue is reviewable under the “capable of repetition, yet evading review” exception to the mootness doctrine. See Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 747, 830 A.2d 711 (2003) (otherwise moot question reviewable if challenged action or effect is of limited duration so that question becomes moot before appeal concluded and there is reasonable likelihood question will arise again and is of public importance); In re Steven M., 264 Conn. 747, 754-55, 826 A.2d 156 (2003) (same). A moot appeal must be dismissed, unless all three prongs are met. Tappin v. Homecomings Financial Network, Inc., supra, 747; In re Steven M., supra, 755.

Although the defendant has cited the three-pronged rule, he has failed to analyze it and the facts of this case. In such instances, we deem the appellant to have abandoned the claim due to inadequate briefing. See In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000). At first blush, however, it appears that the defendant has overlooked the fact that the restraining order was vacated pursuant to an agreement of the parties. The defendant himself, therefore, was complicit in causing the question to become moot, not the court or the circumstances of a restraining order issued pursuant to § 46b-15. We therefore dismiss the appeal as moot.

The judgment of dissolution is affirmed. The appeal from the judgment regarding the restraining order is dismissed.

In this opinion the other judges concurred.

       General Statutes § 46b-82 provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. 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 . . . 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 . . . .” (Emphasis added.)

       The defendant’s financial affidavit reveals that his life was insured by a policy of insurance in the amount of $126,000.

       General Statutes § 46b-15 (a) provides: “Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.”

       The court’s order regarding the family residence at 5 Kari Drive was stayed pending the defendant’s appeal, which was addressed in part I.

       In its memorandum of decision dissolving the marriage, the court noted that the plaintiff had requested that the restraining order not be vacated.

       The plaintiff filed a motion to dismiss the appeal, claiming that because the restraining order was temporary in nature, there was no final judgment. This court denied the plaintiffs motion to dismiss the appeal from the judgment granting the restraining order because the trial court’s action constitutes a final judgment for appeal purposes.


text:
    PATRICIA MEDVEY v. ROBERT E. MEDVEY
    (AC 24142)
    Dranginis, Bishop and West, Js.
    Argued March 30
    officially released June 29, 2004

      Andrew B. Nevas, for the appellant (defendant).

      George J. Markley, with whom, on the brief, was Michael A. Meyers, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this marital dissolution action, the defendant, Robert E. Medvey, appeals from the trial court’s postdissolution judgment holding him in contempt for his failure to pay alimony in accordance with the terms of the parties’ dissolution judgment. On appeal, the defendant claims that the court improperly (1) premised its finding of contempt on an incorrect determination of his gross income for calendar year 2002, (2) found that he wilfully failed to comply with the alimony provision of the dissolution judgment and (3) awarded $7500 in counsel fees to the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues on appeal. The marriage of the parties was dissolved by judgment of the court on May 26, 1998. In its judgment, the court incorporated by reference a marital separation agreement between the parties dated May 26,1998. The agreement provided, in part, that the defendant would pay the plaintiff a base amount of alimony of $25,000 a year in twenty-four equal installments. The agreement also required the defendant to pay the plaintiff, as additional alimony, a sum equal to one third of all “Line 7 income” in excess of $130,000. While the use of the term “Line 7” in the agreement was a specific reference to line seven of schedule C of the 1997 Internal Revenue Service foim 1040, the parties’ agreement included additional language reflecting their intent that “all of the [defendant’s] earned income shall be subject to the [plaintiffs] alimony rights. . . .” The agreement defined “earned income” as “income paid to the [defendant] in consideration for goods, services or work performed or provided by him” and excluding “passive or investment income, awards, lottery earnings, gift, inheritance or other things of value received other than as compensation. . . .” Furthermore, it designated that, at the time, the defendant’s “earned income” was derived from “transactional fees; advisory fees; referral fees; commissions in connection with his occupation as a registered representative and registered financial advisor; and other commissions or compensation for services rendered. ...”

On November 21, 2002, the plaintiff filed a motion to hold the defendant in contempt for his alleged failure to pay alimony during 2002 in accordance with the terms of the marital dissolution judgment. Specifically, the plaintiff claimed that the defendant had failed to make the alimony payments required under the provision of the agreement that required the defendant to pay “additional alimony” pursuant to a formula related to his additional earned income. The defendant, in turn, filed a motion to modify the judgment, alleging that since the date of the marital dissolution, he had become a partner in a limited liability company and that he was no longer receiving income as a consultant. Specifically, the defendant alleged that income that once went directly to him was now being paid to the partnership, and the partnership, in turn, was paying all company expenses before remitting payment to the defendant. Thus, the defendant claimed that although he had continued to perform the same types of services as before the marital dissolution, his actual earned income had diminished substantially by reason of the fact that payments that used to be made to him directly were now being made to his partnership and that some of those funds were now being utilized by the partnership for company expenses. The court, however, disagreed and, after an evidentiary hearing, found the defendant in contempt.

The essence of the court’s finding was that the defendant’s new arrangement did not substantially alter the amount of funds available to him and, therefore, he owed the plaintiff “additional alimony” in the amount of $67,887.95. Specifically, the court found that even though the defendant had become an employee of a new entity, he had received less funds from his employer only because he had directed the company from which he earned commissions to remit those commissions to his new employer and not to him personally. The court further found that those remittances were, in fact, payable to the defendant and were available to him, but for his contrary instructions that they be paid to his new employer. Thus, the court assigned to the defendant as income all sums credited to him, even though they were not actually received by him during the year. As a consequence, the court found the defendant in contempt and ordered him to pay the plaintiff the sum of $67,887.95. In addition, the court ordered the defendant to pay plaintiffs counsel the sum of $7500. This appeal followed.

We begin by articulating the appropriate standard of review. The defendant raises three claims on appeal. As to his first two claims regarding the court’s determination of the amount of alimony due for 2002 and the court’s finding of contempt, our review requires a two part inquiry. First, we must determine whether the agreement entered into between the parties in conjunction with the dissolution of their marriage was clear and unambiguous. See Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). If so, then the court’s determination of the parties’ intent was a legal and not a factual conclusion, and our review of that conclusion is plenary. Id. Second, if we find that the court accurately assessed the intent of the parties regarding the alimony provisions of their marital dissolution agreement, we must then decide whether the court correctly determined that the defendant wilfully had violated its terms.

As to the first question, it is familiar law that a marital dissolution agreement is a contract. Id. Thus, in reviewing it, we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous. See Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). Here, the parties agree, as do we, that the language of the contract at hand is clear and unambiguous. Thus, the court’s conclusions regarding the intent of the parties in making the contract required legal judgment. See Amodio v. Amodio, supra, 56 Conn. App. 470. Accordingly, they are subject to plenary review. See id.

As to the second question, barring any issues of jurisdiction or authority, “[w]e note that the abuse of discretion standard applies to the trial court’s decision on [a] motion for contempt.” Legnos v. Legnos, 70 Conn. App. 349, 353 n.2, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002). If, however, the factual findings that the court relied on to conclude that the defendant was in contempt are attacked on appeal, we must review those findings under the clearly erroneous standard “[i]n addition to reviewing the propriety of the court’s decision as a general matter . . . .’’Id. With those principles in mind, we now turn to the merits of the defendant’s first two claims.

I

The defendant first claims that the court’s finding of contempt constituted an abuse of discretion because the court premised that finding on an incorrect determination of his gross income for calendar year 2002. We disagree.

As noted by the court in its thorough and comprehensive memorandum of decision, at the time of the marital dissolution, the defendant was employed as a broker and financial adviser by Commonwealth Equity Services and Investmark, Inc. (Commonwealth). Pursuant to the defendant’s employment arrangement, Commonwealth received all payments for services rendered by the defendant. From that amount, Commonwealth deducted a fee of 10 percent for providing affiliation to the defendant as the broker-dealer under which he was a registered representative and remitted an additional 30 percent to Investment Financial Services, which paid for all of the defendant’s office expenses. The remaining 60 percent of the payments was then disbursed to the defendant. The court found that in 2002, the defendant voluntarily left Commonwealth and joined The Breakwater Group (Breakwater). According to the court, under the terms of that new arrangement with Breakwater, the defendant received an annual base salary of $75,000 and the first $165,000 of Breakwater’s profits.

The court then found that although the defendant stopped receiving funds directly from Commonwealth after March, 2002, Commonwealth paid all funds due to him for the remainder of 2002 directly to Breakwater at his directive. The court also found that all of the funds paid by Commonwealth either directly to the defendant or to Breakwater pursuant to his directions represented commissions earned by the defendant. Those funds totaled $345,561.

On the basis of that finding, the court concluded that in 2002, the plaintiff should have received as alimony the sum of $71,883.95 in addition to the base sum of $25,000. Finding that the plaintiff had received only the additional sum of $3996, the court concluded that the sum of $67,887.95 was due to the plaintiff for the calendar year 2002.

The defendant contends that the court improperly included in its “additional alimony” computation the funds paid by Commonwealth to Breakwater. He posits that that computation was to be based on his net income rather than on Breakwater’s gross income and that as such, he netted only $138,641.50 in income in 2002. Thus, the defendant argues that he did not violate the dissolution judgment because he was obligated to pay the plaintiff only approximately $2900 in “additional alimony.” We are unpersuaded.

The purpose of the supplemental alimony provision in the parties’ agreement was to provide the plaintiff with a fixed percentage of the income the defendant earned in excess of the base figure of $130,000. The court found that the sums paid by Commonwealth to Breakwater constituted income paid to the defendant in 2002 that was, therefore, to be included in the “additional alimony” computation. Our review of the record comports with that finding. Thus, the court’s finding was not clearly erroneous.

Because we believe that the court accurately determined the amount of income the defendant received in 2002, we further conclude that the court’s determination regarding the sum due and owing the plaintiff was not clearly erroneous. Given the propriety of the court’s underlying factual findings, the defendant’s claim that the court’s judgment of contempt constituted an abuse of discretion must fail.

II

The defendant also challenges the court’s judgment of contempt by alleging that the court improperly found that he wilfully failed to comply with the dissolution agreement. We disagree.

The court’s memorandum of decision reflects the court’s understanding that a finding of contempt presupposes a determination of wilful noncompliance with the court’s order. Having determined the proper legal premise, the corut found that the defendant fully understood the extent of his alimony obligation and that his failure to pay in accordance with the terms of the marital dissolution judgment was wilful. Because that finding is supported by the record, we conclude that the court’s finding of contempt did not constitute an abuse of discretion. Accordingly, that claim fails.

III

The defendant’s final claim is that the court abused its discretion when it ordered him to pay the plaintiffs counsel fees in the amount of $7500. Specifically, he argues that the award (1) is inequitable because his financial affidavit does not reflect an ability to pay it and (2) lacked evidentiary support. We disagree.

At the outset, we set forth the legal principles that guide our review. General Statutes § 46b-87 provides in relevant part: “When any person is found in contempt of an order of the Superior Court entered under section . . . 46b-81 to 46b-83, inclusive . . . the court may award to the petitioner a reasonable attorney’s fee . . . .” On appeal, we review the court’s order for abuse of discretion. Bowers v. Bowers, 61 Conn. App. 75, 81-82, 762 A.2d 515 (2000), appeal dismissed, 258 Conn. 710, 784 A.2d 889 (2001).

A

The defendant first posits that because his financial affidavit did not reflect an ability to pay the attorney’s fees sought by the plaintiff, the court abused its discretion in awarding such fees. It is, however, well settled that pursuant to § 46b-87, the court has the authority to impose attorney’s fees as a sanction for noncompliance with a court’s dissolution judgment and that “ that sanction may be imposed without balancing the parties’ respective financial abilities.” (Emphasis added.) Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). As such, the defendant’s contention is without merit.

B

The defendant also argues that the court’s award of counsel fees lacked evidentiary support. The record, however, belies this claim.

Our review of the record reveals that the defendant testified that he had paid more than $13,000 in fees in conjunction with the proceedings, and the plaintiff testified that she had already paid her counsel the sum of $7500 in fees in conjunction with this postdissolution dispute. Additionally, the record discloses that the court, in making the award, was aware of the nature and extent of the efforts of the plaintiffs counsel in prosecuting the motion for contempt. Accordingly, we conclude that the court did not lack a sufficient evidentiary basis from which to determine an appropriate amount of fees to award. Because the court did not abuse its discretion, the defendant’s final claim must also fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       For the purpose of clarity, we note that “[c]ontempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court. . . . The defendant’s failure to comply with the [dissolution decree] is, therefore, an indirect contempt because it occurred outside the presence of the trial court.
      “[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 352, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

       The defendant also argues that because the court’s underlying finding of contempt was improper, the court abused its discretion in awarding the plaintiff $7500 in counsel fees. Because we affirm the court’s finding of contempt, we need not separately address that argument.

       In making that determination, we are mindful of our Supreme Court’s recent decision in Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004), concerning counsel fees generally in which the court held that in order to secure an order for counsel fees, a party must submit more than a mere demand to the court and that a party seeking counsel fees cannot rely solely on the court’s general knowledge of the reasonable range of legal fees in fashioning the award of counsel fees. We believe, however, that this case is distinguishable from Smith because here, unlike in Smith, the plaintiffs financial affidavit revealed that she had actually incurred legal fees in the amount requested, and that amount was slightly more than half the amount already paid by the defendant to his counsel for representation in the same matter. Those facts, coupled with the court’s own participation in this matter, gave it a reasonable basis for determining an appropriate award of counsel fees in this proceeding as a sanction for the defendant’s contempt.


text:
    CHRISTOPHER NEUHAUS ET AL. v. CORINNE DECHOLNOKY ET AL.
    (AC 23317)
    (AC 23946)
    Lavery, C. J., and Foti, Schaller, Dranginis, Flynn, Bishop, West, DiPentima and Dupont, Js.

      Argued March 31
    officially released June 29, 2004

      Carey B. Reilly, with whom, on the brief, was Ruth Weissman, legal intern, for the appellants (plaintiffs).

      David J. Robertson, with whom were Gaileen A. Kaufman and Bradley M. Smolkin, for the appellee (named defendant).

      Charles D. Ray, with whom were Salvatore N. Fornaciari and, on the brief, David A. Reif and Ingrid L. Moll, for the appellee (defendant Stamford Hospital).
   Opinion

BISHOP, J.

This appeal requires us to consider the application of the repose section of the statute of limitations, General Statutes § 52-584, to a medical malpractice action brought on behalf of a disabled minor child by his parents. The plaintiffs, Christopher Neuhaus and his parents, David Neuhaus and Andrea Neuhaus, individually and on behalf of Christopher, appeal from the summary judgment rendered by the trial corut in favor of the defendants, Corinne DeCholnoky, an obstetrician and gynecologist, and Stamford Hospital (hospital), on their defense that the plaintiffs’ action is time barred pursuant to § 52-584. The plaintiffs claim that summary judgment was improper because the repose section of § 52-584 (1) was tolled by the continuing course of conduct doctrine (2) was tolled by the defendants’ fraudulent concealment of their claims and (3) is unconstitutional as applied to the disabled minor child. We affirm the judgment of the trial court as to DeCholnoky and reverse it as to the hospital.

The following facts and procedural history are relevant to our discussion of the issues on appeal. The plaintiff parents instituted this action on July 25, 1996, individually and on behalf of their son, Christopher, who was delivered prematurely at the hospital on September 17, 1990, with premature lungs and thereafter developed a condition known as respiratory distress syndrome. The plaintiffs alleged that both DeCholnoky, who delivered the child, and the neonatologist, Gerald B. Rakos, an employee of the hospital, were negligent in several ways and that as a consequence, Christopher suffers from serious infirmities, including brain damage and cerebral palsy. Principally, they alleged that DeCholnoky failed to conduct adequate tests to determine the developmental readiness of the child’s lungs for birth before inducing labor at thirty-seven weeks of gestation. As a result, they alleged, Christopher was delivered before his lungs had developed adequately. The plaintiffs claim that Rakos failed to inform the plaintiff parents of the course of their child’s treatment in the hospital and failed to warn them of the known risk of future developmental motor and mental health defects stemming from respiratory distress syndrome and, as a consequence, Christopher is now afflicted with multiple, severe infirmities, including permanent brain damage.

The plaintiffs alleged that when Christopher was discharged from the hospital on October 3, 1990, he was given a clean bill of health by Rakos and that neither DeCholnoky nor Rakos told the parents that Christopher was at risk for subsequent infirmities due to respiratory distress syndrome. The plaintiffs claimed that it was only after the parents had switched pediatricians and requested Christopher’s medical charts from the hospital that they then discovered that Christopher had received numerous blood transfusions and a spinal tap while in the care of the hospital. Most notably, the plaintiffs claim that it was only on review of Christopher’s hospital records by their new pediatrician that the parents learned that brain damage is a known risk of respiratory distress syndrome.

Separately, both defendants filed motions for summary judgment, asserting that the plaintiffs’ action was barred by § 52-584, the applicable statute of limitations for medical malpractice actions, which requires that such a claim must be brought within two years of discovery of the injury, but in no event any later than three years from the act or omission. In response, the plaintiffs acknowledged that they did not bring the action within three years, but claimed that the second part of the statute, the three year repose provision, was tolled by the continuing course of conduct doctrine. In essence, they claimed that the defendants were under a continuing duty to inform the plaintiffs that Christopher was at risk for permanent medical damage resulting from respiratory distress syndrome. In the alternative, they alleged that the three year limitation of § 52-584 is unconstitutional as applied to their disabled minor child. The court rejected the plaintiffs’ claims and rendered summary judgment in favor of the defendants. This appeal followed.

I

The plaintiffs first claim that the court improperly concluded that the statute of limitations in § 52-584 was not tolled by the continuing course of conduct doctrine. Specifically, they argue that there were genuine issues of material fact as to whether Rakos and DeCholnoky had an awareness of Christopher’s risk for permanent medical damage and a continuing duty to warn them of the risks of respiratory distress syndrome after Christopher had been discharged from the hospital.

As a preliminary matter, we set forth the legal principles that shape the parameters of our inquiry. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 848, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).

Under appropriate circumstances, § 52-584 may be tolled under the continuing course of conduct doctrine. Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Our Supreme Court has established a three part test for determining whether the statute of limitations has been tolled. The test requires the plaintiffs to prove that the defendants “(1) committed an initial wrong upon the plaintiff[s]; (2) owed a continuing duty to the plaintiff[s] that was related to the alleged original wrong; and (3) continually breached that duty.” Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000).

“[I]n the medical treatment context . . . continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” (Internal quotation marks omitted.) Id., 371. In Sherwood v. Danbury Hospital, 252 Conn. 193, 206, 746 A.2d 730 (2000), a genuine issue of material fact existed as to whether the defendant hospital knew before discharging the plaintiff patient that she had received untested blood that could have contained the human immunodeficiency virus. In Witt, the physician did not inform the patient that the physician was concerned that the lump in the patient’s neck could become cancerous. Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 372-73. As the defendants in both cases were aware of the risks at the time that the plaintiffs were discharged, our Supreme Court held that the three year statute of repose was tolled until the defendants informed the plaintiffs of such risks. Witt v. St. Vincent’s Medical Center, supra, 376; Sherwood v. Danbury Hospital, supra, 209. We have held, however, that for a duty to warn to continue beyond the limitation period imposed by § 52-584, there must be probative evidence that the medical care provider actually knew of the risk before discharge. See Hernandez v. Cirmo, 67 Conn. App. 565, 572, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002); Nieves v. Cirmo, 67 Conn. App. 576, 587, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). As the underlying facts as to each defendant are unique, we address each defendant in turn.

A

Stamford Hospital

For purposes of applying the test for the imposition of a continuing duty, the court concluded that the plaintiffs had met the first requirement of demonstrating that the hospital had committed an initial wrong in failing to inform them that the diagnosis of respiratory distress syndrome carries with it the risks of serious medical repercussions, including brain injury and cerebral palsy. Because this action was filed well after the expiration of the three year statute of limitations, it could survive the hospital’s motion for summary judgment only if the plaintiffs could show that after Christopher’s discharge, and notwithstanding the hospital’s initial failure to warn, the hospital had a continuing duty to warn them of the future risks associated with respiratory distress syndrome. As stated previously, the imposition of a continuing duty to warn the plaintiffs of the risks of respiratory distress syndrome presupposes, in turn, that the hospital had actual knowledge of the risks. See, e.g., Hernandez v. Cirmo, supra, 67 Conn. App. 572. Thus, although a continuing duty may be imposed as a matter of law beyond the time periods set for filing a claim pursuant to § 52-584, a continuing duty must rest on the factual bedrock of actual knowledge.

The core issue in assessing the court’s ruling on the motion for summary judgment is whether the plaintiffs presented adequate evidence to raise a genuine issue of material fact that the hospital actually knew at the time of discharge the risks of respiratory distress syndrome. If it can be shown that the hospital was aware of the risks at the time of treatment, then the law, as we have been instructed by Witt, will impose a continuing duty on the hospital beyond the statutory period of limitation to warn the plaintiffs of such risks even after the child left the hospital’s care.

In the present case, the plaintiffs contend that they have presented a genuine issue of material fact as to whether Rakos and, thus, the hospital knew at the time of discharge that Christopher was at risk for subsequent injuries related to the initial diagnosis of respiratory distress syndrome. In opposition to the hospital’s motion for summary judgment, the plaintiffs submitted the affidavit of Marcus Hermansen, a board certified pediatrician, and the deposition of Rakos. Hermansen’s affidavit stated that the standard medical practice at the time of Christopher’s birth required that the hospital and Rakos inform the parents of the child’s course of treatment and his prognosis on discharge from the hospital. A fair reading of Rakos’ deposition testimony indicates that he was aware that Christopher had respiratory distress syndrome and that there was a slight risk that Christopher could develop subsequent injuries. Rakos claimed, however, that the normal conversation with a parent of a child at low risk for future complications would not include a discussion of the child’s future neurological prognosis. The hospital contends, on the other hand, that the affidavit submitted by Rakos demonstrates that he was not aware that Christopher would develop subsequent injuries and that he had no expectation that Christopher would suffer a permanent injury. In balance and taking the facts in the light most favorable to the plaintiffs, we conclude that there is a genuine issue of material fact as to whether, at the time of the Christopher’s discharge from the hospital, Rakos knew that Christopher was at risk for subsequent injuries resulting from respiratory distress syndrome and that Rakos chose not to discuss those risks with the adult plaintiffs. See footnote 5. Accordingly, there was a genuine issue of material fact as to the whether Rakos was aware of the possibility of a future risk of brain damage. If there was such awareness, the hospital had a continuing duty to warn the plaintiffs after Christopher’s discharge from the hospital that he was at risk for developing medical infirmities.

Having determined that there was a genuine issue of material fact regarding the hospital’s continuing duty to warn of the risks associated with the child’s diagnosis, we next turn to the question of whether there was a genuine issue of material fact with regard to whether there was a continuing breach of that duty by the hospital. The plaintiffs alleged that neither Rakos nor any employee of the hospital informed them that Christopher was at risk for subsequent injuries. As noted, Rakos acknowledged in his deposition that under the facts of this case, he generally would not have discussed Christopher’s future neurological prognosis with the parents while Christopher was in his care or upon discharge from his care. From that testimony, a jmy reasonably could conclude that the plaintiffs were not informed at the time of Christopher’s discharge, by the hospital, of the health risks presented to Christopher by respiratory distress syndrome, although Rakos was aware of their possible severity. If a jury did so conclude, the hospital would have a continuing duty to warn pursuant to the continuing course of conduct doctrine, which would constitute a continuing breach. See, e.g., Sherwood v. Danbury Hospital, supra, 252 Conn. 208-209; Blanchette v. Barrett, supra, 229 Conn. 279-80.

Because the plaintiffs have presented some evidence from which a jury could conclude that Rakos was aware that Christopher was at risk for subsequent brain injuries and failed initially and subsequently to warn the plaintiffs of that risk, there were genuine issues of material fact as to whether the repose section of § 52-584 was tolled by Rakos’ actions. Consequently, the rendering of summary judgment in favor of the hospital was improper.

B

DeChoInoky

The plaintiffs claim that the court improperly concluded that the cause of action against DeChoInoky was barred by the statute of limitations. They argue that DeChoInoky was under a continuing duty to warn them of the risks associated with respiratory distress syndrome. We disagree.

We first turn to the question of whether the plaintiffs have presented a genuine issue of material fact concerning a duty on DeCholnoky’s part to warn them of the known risks of respiratory distress syndrome. In addressing that question, we are guided by well settled principles of law. “We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 526-27, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).

Setting aside the issue of foreseeability, we conclude that as a matter of public policy, DeCholnoky did not have a duty to warn the plaintiffs of the known health risks flowing from a diagnosis of respiratoiy distress syndrome. The facts underlying the plaintiffs’ claim are undisputed. DeCholnoky cared for Andrea Neuhaus during the prenatal period and delivered Christopher at the hospital on September 17, 1990. On delivery, Christopher’s care was entrusted to the hospital and Rakos. After delivery, DeCholonky did not treat Christopher, nor did she diagnose Christopher as having respiratory distress syndrome. Rather, Christopher was diagnosed with respiratory distress syndrome three days after delivery. Finally, the plaintiffs have presented no evidence that Christopher had detectable respiratory distress syndrome in útero. The plaintiffs claim, nevertheless, that after Christopher’s birth, DeCholnoky was in constant contact with Rakos and that she was, in fact, aware of the diagnosis. On that basis, the plaintiffs assert, DeCholonky had an initial duty to inform the parents of the health hazards associated with respiratory distress syndrome. Under circumstances in which DeCholnoky neither treated Christopher after delivery nor made the diagnosis of respiratory distress syndrome, we are unwilling to impose on her a duty to warn the parents of the risks associated with that condition simply because she was, in fact, aware of the diagnosis and had remained in contact with Christopher’s physicians during his postdelivery stay in the hospital. In the absence of such a duty, the plaintiffs have failed to satisfy the first prong under Witt without which there cannot, as a matter of law, be any continuing duty. Consequently, the plaintiffs’ claim against DeCholnoky is time barred by the application of § 52-584.

The plaintiffs claim, alternatively, that the three year statute of repose was tolled by General Statutes § 52-595, which concerns the fraudulent concealment of a claim. Specifically, they argue that there were genuine issues of material fact as to whether DeCholnoky fraudulently concealed the existence of the plaintiffs’ cause of action from them. We are not persuaded.

“To establish that the [defendant] had fraudulently concealed the existence of their cause of action and so had tolled the statute of limitations, the plaintiffs had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [she] had intentionally concealed those facts from the plaintiffs. ... To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence . . . .” (Citations omitted; internal quotation marks omitted.) Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665-66, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).

Our careful review of the record leads us to conclude that the plaintiffs have failed to demonstrate that DeCholnoky fraudulently concealed the cause of action from them. Mere allegations of fraud in a complaint without some factual underlayment when opposing a motion for summary judgment will not suffice to toll the statute of limitations. Here, in opposing the motion for summary judgment, the plaintiffs have offered no factual support for their claim. Accordingly, we conclude that the rendering of summary judgment relative to the claim of fraudulent concealment was proper.

II

Having concluded that the rendering of summary judgment as to DeCholnoky was in accord with our decisional law regarding the application of the statute of limitations set forth in § 52-584, we now turn to the plaintiffs’ claim that the repose section of § 52-584 is unconstitutional as applied to Christopher’s claim. Specifically the plaintiffs claim that the repose section of § 52-584 violates (1) the open courts provision of article first, § 10, of the constitution of Connecticut and (2) Christopher’s right to the equal protection of the law as contained in article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments. In assessing the constitutionality of the repose section of § 52-584, we are instructed by the well established precept that “[t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.” (Internal quotation marks omitted.) State v. Higgins, 265 Conn. 35, 62, 826 A.2d 1126 (2003). Additionally, we note that, “Connecticut courts have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation, with some exceptions, will survive an equal protection challenge if it satisfies a rational basis test. . . . The exceptions relate to state action that invidiously discriminates against a suspect class, such as the physically or mentally disabled, members of a race or gender, or state action that affects a fundamental right. When that occurs, the action passes constitutional muster only if it survives strict scrutiny. ... If the statute does not involve fundamental rights or suspect classifications, the legislation is constitutional if any difference in treatment is rationally related to a legitimate government interest.” (Citations omitted.) Giordano v. Giordano, 39 Conn. App. 183, 189, 664 A.2d 1136 (1995).

A

The Open Courts Doctrine

The plaintiffs first claim that the repose section of § 52-584 violates the open courts provision of article first, § 10, of the constitution of Connecticut by denying them a right to bring a claim without providing a reasonable alternative. We disagree.

In Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 538, we addressed and answered that question in the negative. Contrary to the plaintiffs’ claim, we believe that the present facts and those found in Golden are adequately similar for the holding of Golden to be applicable. In both cases, the plaintiffs claimed that they could not have discovered their causes of action within the three year statute of repose time period and that they were therefore prohibited by the imposition of the statutory time limit from exercising a common-law right that predated the adoption of the state constitution in 1818. Because we previously have concluded that the statute does not violate the open courts doctrine, the plaintiffs’ claim in that regard is unavailing.

B

The Equal Protection Claim

The plaintiffs next claim that the repose section of the statute of limitations violates Christopher’s equal protection rights as contained in article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments. They argue that the repose section of § 52-584 treats similarly situated victims of medical malpractice in a disparate fashion. Specifically, they argue that victims with disabilities that are not diagnosable within three years of birth are treated differently from tort victims whose injuries are quickly ascertainable. We are not persuaded.

To assess that claim, we must first determine the level of scrutiny we should apply in reviewing the constitutionality of the statute. The plaintiffs argue that we should apply strict scrutiny because Christopher is a member of a suspect class due to his disability. We believe, however, that the presence of disability alone, without a showing that the statute discriminates on the basis of the disability, provides an insufficient basis to warrant strict scrutiny. As previously stated, strict scrutiny is required only when a state action invidiously discriminates against a suspect class or affects a fundamental right. See Foti v. Richardson, 30 Conn. App. 463, 469, 620 A.2d 840 (1993). While we agree that under article first, § 20, as amended by article twenty-one of the amendments to the Connecticut constitution, strict scrutiny is applied to a claim that a statute invidiously discriminates against a disabled individual, under the facts of this case, Christopher’s status as a disabled individual did not affect the application of the repose section of § 52-584. The factual contrast in our Supreme Court’s decision in Daly v. DelPonte, 225 Conn. 499, 515, 624 A.2d 876 (1993), illuminates that point. In. Daly, our Supreme Court established the requirement of strict scrutiny review for an equal protection claim that is based on disability. Id., 513-14. In Daly, however, it was undisputed that the state action to which the plaintiff objected was based on the plaintiffs disability. Id., 512. In contrast, in the present case, it was Christopher’s claimed inability to discover his injury within the three year statute of repose that barred the plaintiffs’ cause of action. The plaintiffs have made no showing that Christopher’s disability, rather than his age, was a distinct factor in preventing their, awareness of his harm. In sum, the plaintiffs’ claims in this instance would have been time barred regardless of Christopher’s disability. Consequently, the state did not invidiously discriminate against the plaintiffs on the basis of Christopher’s disability. Cf. Foti v. Richardson, supra, 469. In the absence of such a finding of invidious discrimination, we review § 52-584 to determine whether there is a rational basis for its application to the facts and parties at hand.

“In order for a statute to withstand rational basis review, we consider whether the classification and disparate treatment inherent in a statute bear a rational relationship to a legitimate state end and are based on reasons related to the accomplishment of that goal. . . . [U]nder this analysis, the legislature is not required to articulate the purpose or rationale for its classification. The test ... is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Rayhallv. Akim Co., 263 Conn. 328, 346, 819 A.2d 803 (2003).

We begin by addressing the policy implicit in our statute of limitations. “There ar e two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). We note as well that our statute of limitations regarding negligence actions applies equally to minors as well as to those who have reached their majority. See Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 221, 92 A.2d 731 (1952).

Notwithstanding these policy reasons, the plaintiffs argue that there exists no rational basis for barring their cause of action before they were aware that they had one, and that the imposition of a time bar causes them undue hardship and an injustice. In an analogous circumstance, our Supreme Court has held that the imposition of a statute of limitation to bar a cause of action will not be found to be unconstitutional because it may be unfair. In Ecker v. West Hartford, 205 Conn. 219, 240-41, 530 A.2d 1056 (1987), our Supreme Court opined: “We cannot conclude that [General Statutes] § 52-555 is unconstitutional under article first, § 20, merely because the three year period it contains is unfair at times. Statutes of limitation find their justification in necessity and convenience rather than logic. . . . There is no reason, constitutional or otherwise, which prevents the legislature from establishing a three year time period that runs from the date of the act or omission complained of, as was done here, even though at that date no person had sustained damage and therefore no cause of action had come into existence. . . . It is not the function of the court to alter a legislative policy merely because it produces unfair results. . . . Individual rights and remedies must at times and of necessity give way to the interests and needs of society. ” (Citations omitted.) Id.

The plaintiffs claim that nearly all jurisdictions except Connecticut provide some statutory relief from the application of the statute of limitations to claims involving minor plaintiffs. For the reasons expressed in Ecker, concerning the prerogative of legislative bodies to enact legislation to achieve reasonable social goals, we are not persuaded by that argument. The fact that several other states’ legislative bodies have carved various exceptions to their respective statutes of limitations for civil claims brought by or on behalf of minors reveals only the disparate legislative views of the social utility and desired extent of such exceptions and not that the absence of such an exception in Connecticut is unconstitutional. We conclude that there exists a rational basis for Connecticut’s three year statute of repose embodied in § 52-584. Accordingly, the plaintiffs’ claim must fail.

The judgment is reversed as to the defendant Stamford Hospital and the case is remanded for further proceedings in accordance with law as to that defendant. The judgment is affirmed as to the defendant Corinne DeCholnoky.

In this opinion the other judges concurred.

       In view of our disposition of the plaintiffs’ first claim against the hospital, we do not address their second and third claims as to the hospital.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury ... by malpractice of a physician . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       The court and both parties agree that the plaintiffe have met their burden of proving an initial wrong. Although the third amended complaint did not contain an allegation that the hospital failed to advise the plaintiffs that Christopher was at risk for permanent injuries, a fair reading of the court’s memorandum of decision indicates that the court, when analyzing the first prong of the test in Witt, considered the proposed amended complaint as the operative complaint. The court stated in relevant part: “However, if the court accepts the contention that the initial wrong of the hospital included its failure to advise the plaintiffs that Christopher was at risk for permanent injury (this allegation is contained in the proposed, but not operative, amended complaint), then there clearly are one or more unresolved issues of material fact, and the plaintiffe have met the first prong of the test set forth in Witt." (Emphasis in original.)

       The plaintiffs sought recovery against the hospital through a theory of vicarious liability.

       The following is the relevant examination from Rakos’ deposition:
      “[The Plaintiffs’ Counsel]: And in terms of long-term prognosis, usual conversation that you have, do you indicate that some children who have respiratory distress problems sometimes do not have normal brain outcomes ... or something along those lines?
      “[The Witness]: The nature of the conversation we have when, so the dust is settled and the babies are going home, has more to do with their gestational age and neurological complications that they had during the hospitalization.
      “[The Plaintiffs’ Counsel]: And I take it from that that you don’t address whát the future neurologic course might include?
      “[The Witness]: That’s a question that every patient asks us, and our answers are fairly standard in the context of the clinical situation, which is very variable. So, you can have a very premature baby who had intraventricular hemorrhage and had a seizure and had a conversation that says not all of these babies have neurological problems, but clearly these are bad risk factors, and we need to be careful about follow-up.

        “And the other side is of more mature babies who had respiratory problems and otherwise was totally fine, we would have a very different kind of conversation that didn’t focus much on neurologic because those risks are very low.”

       Our conclusion in this case is limited to whether summary judgment should have been rendered and not, as the hospital has pointed out, whether there was a causal link between Christopher’s injuries and any failure of the hospital to warn of the risks of respiratory distress syndrome.

       We are not required to address foreseeability if we conclude as a matter of policy that no duty of care existed. See Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 618 n.11, 783 A.2d 462 (2001).

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Article first, § 20, of the constitution of Connecticut as amended by article twenty-one of the amendments provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       In reaching that determination, we expressly decline the plaintiffs’ invitation to overturn our holding in Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 518.

       DeCholnoky argues that this issue also is foreclosed by our holding in Golden, in which we concluded that § 52-584 did not violate the plaintiffs equal protection rights. Christopher’s status as a disabled minor, however, warrants an independent review.

       Age is not a suspect class under our state constitution or the federal constitution. Rayhall v. Akim Co., 263 Conn. 328, 343, 819 A.2d 803 (2003).


author: PER CURIAM.

text:
    FRANCIS ANDERSON v. COMMISSIONER OF CORRECTION
    (AC 24035)
    Dranginis, Bishop and West, Js.
    Argued March 30
    officially released June 29, 2004

      Arnold V. Amore II, special public defender, for the appellant (petitioner).

      Melissa, L. Streeto, deputy assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Angela R. Macchiarulo, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Francis Anderson, appeals from the judgment of the trial court denying his petition for a writ of habeas corpus following the denial of his petition for certification to appeal from that judgment. On appeal, the petitioner claims that the court abused its discretion by concluding that he had not been denied the right to effective assistance of counsel prior to his pleading guilty to a charge of assault on an employee of the department of correction in violation of General Statutes § 53a-167c (a) (4). Prior to oral argument in this court, the petitioner was ordered to file a supplemental brief addressing the threshold issue of whether the trial court had abused its discretion by denying his petition for certification to appeal. On the basis of our review of the record and briefs, we conclude that the court did not abuse its discretion and, therefore, dismiss the appeal.

On January 6, 1996, the petitioner was an inmate at Northern correctional institution. While he was being transported from a dental appointment to his housing unit, he spat bloody saliva at a correction officer. He was charged with assault on the officer. The petitioner retained private counsel. Just prior to trial, the petitioner withdrew his not guilty plea and pleaded guilty to the charge. In June, 1997, he was sentenced to three years incarceration, consecutive to the sentence he was then serving, in accordance with a plea agreement his counsel had reached with the state.

By means of an amended petition for a writ of habeas corpus, the petitioner alleged that he was denied the constitutional right to effective assistance of counsel because his trial counsel failed to inform the sentencing court of the petitioner’s low level of intelligence and his mental health history. See footnote 1. The trial court denied the petition for a writ of habeas corpus and the petition for certification to appeal.

“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 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 then prove that the decision of the habeas court should be reversed on its 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. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 830-31, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

In denying the petition for a writ of habeas corpus, the court set forth the standard for deciding claims of ineffective assistance of counsel relative to a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The court did not address whether the petitioner’s counsel had provided ineffective assistance, having decided rather that the petitioner was not prejudiced by the performance of his counsel. See Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (court deciding ineffective assistance of counsel claim need not address question of counsel's performance if it is easier to dispose of claim on ground of lack of prejudice).

The court observed that the petitioner faced a potential sentence of ten years incarceration for assault on a correction officer, that he had a felony record and had received many disciplinary tickets while he was in prison, and that it would have been difficult for the petitioner to take the witness stand as a credible witness in his defense. The court recognized the wisdom of counsel’s advice that the petitioner plead guilty to minimize his exposure to a lengthy sentence. Furthermore, counsel negotiated a three year plea agreement in the face of a possible ten year sentence. We conclude that jurists of reason would agree that the petitioner was not prejudiced by his counsel’s representation and that the court properly denied the petition for certification to appeal.

The appeal is dismissed.

       The petitioner’s claim on appeal is not the one he alleged in his amended petition for a writ of habeas corpus. Because the court’s memorandum of decision is a record sufficient for us to review the claim on appeal, we will review it as the respondent commissioner of correction addressed the issue in his thorough brief. Nonetheless, we look with disfavor on the procedural deficiencies in the petitioner’s appeal.

       Although the court did not consider whether the performance of the petitioner’s counsel fell below the accepted standard, it stated that “[i]t is most unlikely that [counsel] could have provided a better quality of representation to the petitioner.”
      The court also cited a comment made by the sentencing court: “In reviewing the sentencing memorandum, I can only feel that [counsel] did a remarkable job finding apositive twist on twenty or thirty different negative factors in this case, and I commend you for your efforts because to try to find positive things after the presentence investigation report, which was done in this case, is not easy to do, and I was quite impressed with the professionalism in your job in preparing this memorandum and finding so much positive to argue in light of the presentence report . . . .”