author: LAVINE, J.

text:
    BUDDINGTON PARK CONDOMINIUM ASSOCIATION ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON ET AL.
    (AC 31525)
    DiPentima, C. J., and Lavine and Flynn, Js.
    Argued October 19
    officially released December 28, 2010

      Timothy J. Lee, for the appellants (plaintiffs).

      Ramon S. Sous, assistant corporation counsel, for the appellee (named defendant).

      Dominic J. Thomas, Jr., for the appellees (defendant Carol Farrell et a!.).
   Opinion

LAVINE, J.

The plaintiffs, Buddington Park Condominium Association (association), Lynn Farrell and Maurice Cayer, appeal from the judgment of the trial court dismissing their zoning appeal from a decision of the defendant planning and zoning commission of the city of Shelton (commission). On appeal, the plaintiffs claim that the trial court improperly determined that (1) they were not denied due process when the commission received, ex parte, a revised site plan from the applicants, the defendants Carol Farrell and Robert Farrell, following the close of the public hearing, (2) the commission’s resolution regarding the application is not unconstitutionally vague, although it does not provide standards for setbacks and building locations, and (3) the applicants provided adequate notice of the property that was the subject of the amendment to the zoning regulations, although the notice failed to include a metes and bounds description of the property. We agree with the plaintiffs’ first and third claims and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. On September 11, 2007, the applicants submitted to the commission, pursuant to § 34 of the Shelton zoning regulations (regulations), an application for a planned development district (district) to develop seven residential units on their property at 122 Buddington Road, Shelton, consisting of 3.35 acres. The commission held hearings on October 23 and November 27, 2007, and conditionally voted to approve a resolution related to the application on February 26,2008. The plaintiffs filed an appeal in the trial court on April 9, 2008, claiming that the commission’s approval of the application was illegal, arbitrary and an abuse of the discretion vested in the commission. More specifically, the plaintiffs alleged that the commission approved the district despite procedural irregularities, despite the fact that the Shelton inland wetlands commission had not submitted a report, despite the fact that the district is inconsistent with the surrounding neighborhood and the Shelton plan of conservation and development, and despite the fact the decision is not supported by the record. The plaintiffs also alleged that the approval was in violation of the regulations and state law and was not rendered within the time permitted by law.

The trial court made the following findings of fact. Lynn Farrell and Maurice Cayer own units within the association located at 2 Buddington Park in Shelton. The plaintiffs’ property is within 100 feet of the parcel of land that is the subject of the appeal and, therefore, the plaintiffs are aggrieved. Quoting from Blakeman v. Planning & Zoning Commission, 82 Conn. App. 632, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004), the court noted that in considering an application for a planned development district, the commission acts in a legislative capacity, rather than an administrative one, and that it has wide and liberal discretion and is free to amend its regulations “whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.” (Internal quotation marks omitted.) Id., 643. The court found that § 34 of the regulations permits the creation of a district, which is a three step process. The first step is to locate the property within a special development area, the second step is to file an informal application with initial development concept plans and the third step is to file a final site development plan. In this case, the court found that the plaintiffs had appealed from the commission’s approval of the informal application, or step two of the process.

The court also found that the commission had held a public hearing on the informal application on October 23, 2007, at which time members of the public in attendance voted and submitted a petition requiring the commission to approve the application by a two-thirds majority. The public hearing was continued to November 27, 2007, and closed following the applicants’ presentation and after opponents were given an opportunity to speak. On February 26, 2008, the commission held a special meeting to consider the application and expressed concern regarding the number of units proposed. The court found that Anthony Pánico, the town’s planning consultant, “referred to a draft resolution which left the number of units blank. The applicant had suggested lowering the units from seven to six, which resulted in removing objections to wetland intrusion and spacing between units, as well as other considerations.” The court then stated that “[receiving information from staff members after the public hearing is closed is permitted.” Moreover, the court found that although the plaintiffs claim prejudice, they “offer[ed] no explanation as to how they were prejudiced by the reduction of the number of units as proposed” by the applicants. Continuing, the court stated that “[bjecause the applicant[s] had yet to go before the [commission] on the submission of its final detailed plans under the three stage process, the plaintiffs would have an opportunity to be heard on the number of units and any claim of prejudice by the plaintiffs could be considered.” The court dismissed the appeal by memorandum of decision filed March 31, 2009. Following this court’s granting of certification to appeal, the plaintiffs appealed.

The plaintiffs’ claim is that the court improperly concluded that they were not prejudiced by the commission’s receipt of ex parte communications from the applicants after the public hearing was closed. We agree.

Our review of the record of the commission’s February 26, 2008 meeting discloses the following. Richard D. Schultz, administrator, stated that the commission had directed its staff to draft a favorable resolution pending additional discussions as to the number of units in the district. Pánico read the proposed resolution, which did not specify the number of units in the district. Patrick Lapera, vice chair of the commission, opened the discussion by stating that the commission needed to come to a decision regarding the number of units, noting that the applicants had requested seven units. Pánico informed the commission that the staff had pointed out some geometric spacing problems to the applicants, and the applicants “provided a response as to how they could address those issues by removing one of the units down below bringing the number of units down to six, thereby addressing a number of other issues.” Commissioner Leon Sylvester asked “to see the site plan for six homes” and later observed that the applicants “have voluntarily reduced the number seven because it was a problem to this commission.” Following a discussion, the commission voted four to two to approve the district application with six units. On the basis of our review of the record, we conclude that the commission received an ex parte communication from the applicants that it considered in approving the proposed district and that the court, therefore, improperly concluded that the plaintiffs had failed to demonstrate prejudice.

On appeal to this court, the plaintiffs complain that the applicants’ revised plan was not made available for public comment and/or cross-examination by those opposed to the district at the public hearing, thereby denying them due process. They also claim that they were prejudiced by the commission’s consideration of the revised plan because without the revised plan, the commission may have denied the application for a seven unit district.

“Ordinarily, zoning authorities act in either a legislative or an administrative capacity [and] the function of creating zones and adopting zoning regulations is . . . essentially legislative.” (Citation omitted.) Burke v. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849 (1961). Neither our state nor the federal constitution guarantees “any particular form of state procedure. Due regard must be had to the nature of the proceeding and the individual right affected by it. Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968). The fact that the proceeding is legislative, rather than adjudicative, in nature plays a role in the determination of what process is due. . . . [Constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and nonrepetitive proceedings against the risk of erroneous deprivation of a private interest.” (Citation omitted; internal quotation marks omitted.) Protect Hamden/ North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554-55, 600 A.2d 757 (1991).

“[W]hile proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. . . . The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal.” (Internal quotation marks omitted.) Blaker v. Planning & Zoning Commission, 212 Conn. 471, 477-78, 562 A.2d 1093 (1989). “Not to do so would deny those [supporting or] opposing the application the right to be fully apprised of the facts on which the [agency] is asked to act.” (Internal quotation marks omitted.) Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 570, 602 A.2d 613 (1992).

Our Supreme Court has stated that “planning and zoning commissions are entitled to technical and professional assistance in matters that are beyond their expertise, and that such assistance may be rendered in executive session. . . . We held, however, that [t]he use of such assistance . . . cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” (Citation omitted; internal quotation marks omitted.) Blaker v. Planning & Zoning Commission, supra, 212 Conn. 478.

In the case before us, the applicants argue that the commission did not receive an ex parte communication because Pánico, its consultant, provided the information. The record, however, discloses that Pánico conveyed a revised site plan to the commission, which the applicants had provided after Pánico discussed geometric spacing problems with the applicants’ engineer. Pánico stated to the commission that the applicants had demonstrated to the staff that they could take out one of the units and satisfy the staffs concerns. Sylvester asked to see the revised plan. We consider it significant that the resolution drafted by the staff did not contain a recommended number of units. The reduction in the number of units was suggested by the applicants via their revised site plan, which at least one commissioner asked to review. At the February 26, 2008 meeting, the commission extensively discussed the members’ concerns regarding the number of units in the proposed district and referred to the revised site plan submitted by the applicants’ engineer. On this record, we cannot conclude that the commission’s staff merely supplied technical information to the commission that it considered in approving the application. The information originated with the applicants; Pánico was a conduit.

“[T]he technical and professional assistance to which a municipal administrative agency is entitled does not include the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” (Internal quotation marks omitted.) Norooz v. Inland Wetlands Agency, supra, 26 Conn. App. 570. There are, however, exceptions to this rule. See Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184-85, 286 A.2d 299 (1971) (agency considered report received subsequent to public hearing submitted by its outside consultant); McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77-78, 282 A.2d 900 (1971) (agency met in executive session with planning consultant who previously spoke in favor of site plan); Kyser v. Zoning Board of Appeals, 155 Conn. 236, 249-51, 230 A.2d 595 (1967) (municipal officials called into executive session to explain discrepancies in record); Yurdin v. Town Plan & Zoning Commission, 145 Conn. 416, 420-21, 143 A.2d 639 (agency permissibly conferred with planning director and technician to obtain explanation of certain evidence), cert. denied, 358 U.S. 894, 79 S. Ct. 155,3 L. Ed. 2d 121 (1958). None of the exceptions applies to the facts of this case, in which the applicants submitted a revised site plan that was presented to and considered by the commission.

“The proper inquiry for a reviewing court, when confronted with an administrative agency’s reliance on non-record information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Norooz v. Inland Wetlands Agency, supra, 26 Conn. App. 573-74. Here, Pánico evaluated the revised site plan and answered the commission’s questions regarding the plan. The revised site plan was not presented to the commission dining the public hearing and, therefore, constituted impermissible ex parte communication, a violation of the plaintiffs’ right to due process.

This conclusion, however, does not end our consideration of the plaintiffs’ claim. We must now determine whether the court improperly concluded that the plaintiffs were not prejudiced by the ex parte communication. In Blaker v. Planning & Zoning Commission, supra, 212 Conn. 473, our Supreme Court held “that the applicant’s ex parte communication relieved the aggrieved party of the initial burden of demonstrating that the commission acted illegally and shifted the initial burden to the applicant to demonstrate that the communication was harmless.” “[0]nce it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises. Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission’s decision.” Id., 480. Although the trial court erroneously found that there was no ex parte communication, it also found that the plaintiffs had failed to explain how they were prejudiced by a reduction in the number of units proposed. In doing so, the court improperly shifted the burden of persuasion onto the plaintiffs. Moreover, the record contains no evidence of the facts presented by the defendants to overcome the claim of prejudice, and the court made no factual findings in that regard. The court appears to have assumed that the plaintiffs objected to the district solely on the basis of the number of units. The plaintiffs, however, alleged that the district is inconsistent with the surrounding neighborhood and the Shelton plan of conservation and development. We conclude that the plaintiffs were prejudiced by the ex parte communication.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       Carol Farrell and Robert Farrell, owners of real properly located at 122 Buddington Road, Shelton, also are defendants.

       Because we reverse the judgment on the basis of the plaintiffs’ first and third claims, and the second may not recur, we do not need to address the second claim on appeal.

       In their brief to the trial court, the plaintiffs represented that at the public hearing continued to November 27, 2007, those opposed to the application expressed concern about the district’s traffic impact, storm drainage, environmental and ecological impact and general concerns regarding the legality of the planned development district regulations, among other things. The number of units was not mentioned.

       We also agree with the plaintiffs’ third claim that the court improperly concluded that, although the notice that identified the property did not contain a metes and bounds description of the property, it fulfilled the requirements of General Statutes § 8-3 (a) by giving notice of the address of the property and referring to the assessor’s map 62, lot 31. See Bridgeport v. Plan & Zoning Commission, 277 Conn. 268, 279, 890 A.2d 540 (2006) (reference to map on file in office of separate agency does not constitute adequate notice of boundaries affected by proposed zone change); Cassidy v. Zoning Commission, 116 Conn. App. 542, 553,976 A.2d 29 (2009) (same).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    KAREN B. SHAULSON v. DAVID A. SHAULSON
    (AC 29978)
    Bishop, Robinson and Dupont, Js.
    Argued October 28
    officiafly released December 28, 2010

      Brendon P. Levesque, with whom were Karen L. Dowd, and, on the brief, Kimberly A. Knox and Dana M. Hrelic, for the appellant (defendant).

      Gaetano Ferro, with whom were Sarah E. Murray, and, on the brief, Anthony L. Cenatiempo, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, David A. Shaulson, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Karen B. Shaulson, and entering related financial orders. On appeal, the defendant claims that the court (1) improperly found that he had dissipated marital assets, (2) abused its discretion in finding that a life insurance trust did not exist but, nevertheless, awarding him the cash value of the policy as part of his share of the marital assets and (3) improperly ordered him to pay certain monthly amounts of unallocated alimony and child support. We disagree and, accordingly, affirm the judgment of the trial court.

The plaintiff commenced this marital dissolution action against the defendant in November, 2005. Although the parties reached an agreement regarding the custody and parenting of their four young daughters, they were unable to agree on financial matters. Following a trial on the financial issues, the court, on May 12, 2008, rendered an oral decision dissolving the parties’ marriage, incorporating into the judgment of dissolution the parties’ custody agreement and making certain financial orders. The court found that the plaintiff had not been employed outside the home since the birth of the parties’ children, and, thus, the defendant was the sole wage earner for the family. The court further found that the defendant had dissipated large sums of the parties’ savings in violation of the automatic court orders, and, consequently, the court “charged all [of] that inappropriate spending to [the defendant’s] portion of the divided assets.” The court also ordered, inter alia, the defendant to pay to the plaintiff $40,000 per month in unallocated alimony and child support as well as 25 percent of the defendant’s gross income over $1 million. The court awarded the plaintiff the marital home and two adjacent lots owned by the parties. Although the court determined that there was no life insurance trust, the court awarded the cash value of the subject policies to the defendant.

On May 22, 2008, the defendant filed a motion to reargue, which the court denied. Also on that date, the court filed a “clarified and corrected memorandum of decision,” making minor clarifications, alterations and additions with respect to its May 12, 2008 decision. On May 30, 2008, the defendant timely appealed from the judgment of dissolution.

On July 8, 2008, the court held a hearing regarding certain postjudgment motions filed by the parties. At the commencement of the hearing, the court, sua sponte, issued an oral “clarified and articulated decision” with respect to its May 12, 2008, alimony and child support order, explaining that it did not believe that this was a child support guidelines case because the presumptive amount of support required under the guidelines would be “grossly inappropriate” given the defendant’s income. On July 25, 2008, the defendant filed an amended appeal to include this ruling.

Subsequently, the defendant filed a motion for articulation, which the court denied on October 1, 2008. The defendant filed a motion for review of that denial, which this court granted, in part, and ordered the trial court to articulate (1) whether it based its unallocated award of alimony and child support on the defendant’s actual earned income or on his earning capacity; (2) what it determined the defendant’s actual earned income or earning capacity, whichever was applicable, to be; (3) whether its determination of actual earned income or of earning capacity was based on gross or net earnings; (4) what it found the cash value of the alleged life insurance trust to be when it awarded that cash value to the defendant; and (5) what it found the value of the marital home and the adjacent two lots to be.

In response, on February 11,2009, the trial court filed its articulation in which it indicated that it had based its financial orders on the defendant’s earning capacity, which it determined to be $900,000 per year, based on an average of recent years’ earnings. The court further articulated that it had found the cash value of the “alleged life insurance trust” to be $650,000. The court also stated that it had determined the fair market value of the marital home to be $820,000, with an outstanding mortgage of $478,587, leaving equity of $341,413, and the combined value of the two adjacent lots to be $200,000.

On February 23, 2009, the defendant filed a motion for further articulation asking the trial court to indicate what it had determined the defendant’s net income to be in 2007, upon which it had based its financial order. The trial court denied the defendant’s motion, and the defendant filed a motion for review, which this court granted. On July 2, 2009, the court further articulated its decision, stating that it had based the financial orders on the defendant’s earning capacity of $900,000, which would make his net income approximately $540,000. In explaining how it reached the determination of that net income, the court went on to explain the calculations that it made with regard to the defendant’s tax liabilities as well as the plaintiffs receipt of the unallocated alimony and child support and the resulting tax ramifications. The court also explained the calculations that it had made in modifying the unallocated award of alimony and child support to $30,000 per month. Additional facts will be set forth as necessary.

We begin by setting forth our general standard of review in an appeal challenging the financial orders made in a dissolution of marriage judgment. “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. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Citations omitted; internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 87-88, 995 A.2d 1 (2010). With these principles in mind, we turn to the defendant’s claims on appeal.

I

The defendant first claims that the court improperly concluded that he had dissipated marital assets in violation of the automatic orders by spending $150,000 to furnish his new home and that the court improperly charged the alleged dissipation against his share of the marital assets. We disagree.

Our review of this claim is guided, as the defendant suggests, by Gershman v. Gershman, 286 Conn. 341, 943 A.2d 1091 (2008). In Gershman, our Supreme Court was faced with the question of “what, as a matter of law, constitutes dissipation in the context of a marital dissolution proceeding.” Id., 346. The court concluded: “[A]t a minimum, dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.” Id., 351.

The defendant invites this court to conclude, as a matter of law, that expenditures for the purpose of furnishing a new home, especially a home at which the parties’ children spend a significant amount of time, cannot amount to the dissipation of assets. We decline, however, to make such a determination. We conclude that such an expenditure may or may not constitute dissipation, depending upon the circumstances of the case.

Here, the court’s comments about the expenditure of $150,000 for furnishing a new home must fairly be read in the context of its response to the defendant’s spending habits in general while this matter was pending. In that regard, the court found that the defendant had expended no less than $250,000, and possibly as high as $485,000, for trips, gifts to his fiancee as well as household furnishings. The record demonstrates that the court specifically found that the defendant’s expenditure of $150,000 to furnish his new house was excessive and not in accordance with his previously “minimalist” furnishings. The court further found that there was no justification for the $150,000 in expenditures and that it was detrimental to the family. In response, the defendant argues that his expenditure of $150,000 was justified because he needed to provide a suitable household for his children, who spend 40 percent of their time with him. We are unconvinced by the defendant’s argument. Rather, we conclude that the court properly determined that spending $150,000 to furnish the defendant’s new home constituted dissipation of the marital assets under the circumstances confronted by the court. Because “Connecticut trial courts have the statutory authority, under [General Statutes] § 46b-81, to consider a spouse’s dissipation of marital assets when determining the nature and value of property to be assigned to each respective spouse”; Finan v. Finan, 287 Conn. 491, 500-501, 949 A.2d 468 (2008); we conclude that the court’s order in this regard was not improper.

II

The defendant next claims that the court improperly found that an irrevocable life insurance trust did not exist but, nevertheless, awarded the cash value of the policies alleged by the defendant to have been held in that trust to the defendant as part of its distribution of marital assets. In considering this issue, the court discredited the defendant’s testimony that such a trust existed but credited his testimony that the cash value of the policies was $650,000 and awarded that amount to the defendant. In assessing this claim we are mindful of the well trodden notion that the trial court is the “sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 357, 999 A.2d 713 (2010). Here, the court found on the basis of evidence it credited that the subject life insurance policies, though not part of a trust, nevertheless had a certain cash value. The court, therefore, did not abuse its discretion in awarding the cash value of the policies to the defendant as part of his share of the marital assets. Accordingly, the defendant’s claim fails.

Ill

The defendant finally claims that the court improperly ordered him to pay to the plaintiff $40,000 per month, subsequently modified to $30,000, as unallocated alimony and child support. The defendant’s claim in this regard is twofold. He claims that the court (1) improperly waived the child support guidelines, did not expressly deviate from the guidelines and failed to make the statutorily required findings for deviating from the guidelines and (2) abused its discretion in awarding those specific amounts because they were inequitable in light of its other orders dividing the marital assets. In response, the plaintiff argues, inter alia, that the defendant’s failure to file a child support guidelines worksheet with the court should preclude him from complaining that the court failed to adhere to the guidelines.

“In Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994), our Supreme Court stressed adherence by the trial court to observe the procedures set out in the child support guidelines to facilitate appellate review. Recently, in Bee v. Bee, 79 Conn. App. 783, 787-88, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003), we concluded that a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and that we will not review such a claim. Kunajukr v. Kunajukr, 83 Conn. App. 478, 485, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).” (Internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 655, 946 A.2d 871 (2008).

Our review of the record reveals, and the defendant acknowledges, that he did not file a child support guidelines worksheet. Indeed, the court’s stated reason for basing its orders on the defendant’s earning capacity rather than his actual earnings was that the defendant was less than forthcoming about his financial situation. Because the defendant failed to supply the court with the required information for a guideline based order of child support, he cannot now complain that it does not comply with the guidelines or that the court improperly failed to make an independent determination of the guideline indicated child support applicable to the parties’ incomes. Accordingly, we decline to review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the dissolution judgment, the court ordered the defendant to pay to the plaintiff $40,000 per month as unallocated alimony and child support. That amount was subsequently modified to $30,000 per month. The defendant is challenging both orders on appeal.

       Practice Book § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage . . .
      “(1) Neither party shall sell, transfer ... or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

       In its clarification, the court stated, inter alia, that “it found incredible the claims of [the defendant] regarding both his expenditures and his reduced income. His spendthrift conduct throughout the proceeding belies a man suffering from or concerned about diminishing income. His demeanor on the [witness] stand, and the manner in which he answered questions, did not point to truthfulness. The court rejects [the defendant’s] claims that his income has decreased and that its future is in jeopardy.” Because the court’s other articulations are not relevant to the issues on appeal, we need not set them forth herein.

       Thereafter, the defendant filed a motion to modify support, claiming that, in light of the state of the financial markets, his income had been substantially decreased. On December 8, 2008, the court granted the defendant’s motion to modify and reduced his unallocated alimony and child support payments to $30,000 per month. On December 18, 2008, the defendant filed a second amended appeal to include the trial court’s order reducing his monthly support. On that same date the defendant filed a motion for articulation concerning the court’s decision. The court denied the motion for articulation on February 9, 2009. The defendant did not seek review of that ruling.

       The defendant, is not challenging on appeal the court’s finding that many of his other expenditures, possibly totaling an additional $300,000, violated the automatic orders.

       The court stated: “I have to say that in my almost twenty years on the bench and having practiced since 1976,1 have never seen a case with such complete and utter dissipation of such large amounts of assets. . . . I’ve seen people spend some savings, all of their savings, but not to this degree.
      “And I think if the automatic orders have any meaning, if this is obeying the automatic orders, then the automatic orders have no meaning. Because even considering the large amounts of attorney fees that were being paid out and the large amounts of support being paid, the amount of money spent on unnecessary, extravagant items is mind boggling ....
      “Mr. Shaulson, you were running through money absent your obligations as if somebody had said, ‘O.K., you’ve got twenty-two months, how much can you spend?’ And you were off to the races. . . . [Y]ou spent nicely before, but you didn’t spend $150,000 on stuff that you had in your other house in that period of time. . . .
      “[I]t’s not an ordinary course of events for somebody who had a desk at their house which was relatively minimalist to then spend the amount of money you did for furnishing your office in your new house. That’s not an ordinary and necessary expense; $150,000 in furnishings was not an ordinary expense. The engagement ring, the trips, the charges. . . .
      “[T]he automatic orders are designed to preserve the assets. And the assets in this case, if you look at the old financial affidavits and you look at the new financial affidavits .... Maybe it wasn’t an engagement ring. It was a ring purchase. I don’t know for what purpose.
      “[T]he inappropriate spending is something . . . that the court can’t ignore and I can’t restore the funds. And so you will see when I get to my orders that I’ve charged all that inappropriate spending to your portion of the divided assets.
      “You had control of it. You chose to do it. If you want to stay at expensive hotels and eat out to that degree or buy $150,000 worth of furniture, that’s fine and dandy, but I’m not going to credit [that] against [the plaintiffs] portion of the assets.”
      The court told the defendant: “[I]n terms of your behavior, vis-a-vis the money, the conclusion I can reach is that this was a wilful attempt to spend every nickel you had so that the court had less to put its hands on because it wasn’t in anybody’s interest to spend the money like this. There was no reason to do it. . . . [I]n the end, it hurts the family.” With regard to its finding that the defendant violated the automatic orders, the court further stated: “[I]f contempt of court is to show an utter disdain, disrespect for the authority of the court or its jurisdiction over your financial matters, then you take the cake. That’s what you did.” The court found that the amount of assets that the defendant may have spent in violation of the automatic orders was between $250,000 and $485,000. The court told the defendant that he had been “spending like a drunken sailor .... When you are in the middle of a divorce . . . you can’t go out buying jewelry for other people and not think that it’s going to get counted against you. You can’t spend $150,000 furnishing a house . . . not that you couldn’t furnish the house, but it doesn’t take $150,000 to furnish the house.
      “Travel, cruises, charges. The charges were . . . like . . . spending like a drunken sailor. And so I have charged you with all those. . . . [B]ecause if the intent was to diminish the estate so there was less to give [the plaintiff], I hope that I haven’t done that by way of my orders because it was my intent to count all of that back in as much as I could estimate.”

       The defendant testified that, in furnishing his new home, he purchased three television sets, costing $500, $3500 and $5000, respectively. The defendant also testified that he spent over $7000 on computer equipment and $40,000 on antiques for his new home.

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property ... to be assigned . . . [t]he court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”


author: DiPENTIMA, C. J.

text:
    CHARLES LOGAN v. COMMISSIONER OF CORRECTION
    (AC 30745)
    DiPentima, C. X, and Bear and Foti, Js.

      Argued October 12
    officially released December 28, 2010

      Sarah F. Summons, special public defender, for the appellant (petitioner).

      Timothy F. CosteUo, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Brenda Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Charles Logan, appeals from the judgment of the habeas court in favor of the respondent, the commissioner of correction, following the court’s denial of his petition for certification to appeal. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal, (2) improperly permitted his habeas counsel to withdraw and (3) improperly rendered judgment in favor of the respondent. We dismiss the appeal.

The following factual and procedural history is relevant to the resolution of the petitioner’s appeal. The state charged the petitioner with the crimes of murder, conspiracy to commit murder, three counts of assault in the first degree and violation of probation. The petitioner entered a guilty plea, pursuant to the Alford doctrine, to murder, conspiracy to commit murder and violation of probation and the court sentenced him to thirty-one years imprisonment. The petitioner did not file a direct appeal.

On September 25, 2000, the petitioner filed an amended petition for a writ of habeas corpus, alleging the ineffective assistance of trial counsel; specifically, that counsel had failed to inform him fully of the possibility of acquittal, and therefore his plea was not knowing, intelligent or voluntary. The petitioner also claimed that had he been informed fully of his chances of success, he would have insisted on going to trial. The habeas court concluded that the petitioner had failed to satisfy his burden of proving that his counsel's performance fell below on objective standard of reasonableness and denied the petition. We affirmed the judgment of the habeas court. Logan v. Commissioner of Correction, 68 Conn. App. 373, 374-76, 791 A.2d 638, cert. denied, 260 Conn. 911, 796 A.2d 557 (2002).

On April 5, 2006, the petitioner, representing himself, filed a petition for a writ of habeas corpus, alleging, inter alia, that his plea bargain was not followed, his sentence was illegal and his trial counsel provided ineffective assistance. On July 18, 2006, the court, Fuger, J., granted the motion for the appointment of a special public defender, attorney Tina Sypek D’Amato.

On July 6,2007, D’Amato moved to withdraw from the case pursuant to Practice Book § 23-41.® The petitioner filed an objection on July 17, 2007. On September 27, 2007, the court, J. Kaplan, J., issued a memorandum of decision granting D’Amato’s motion and informing the petitioner that he could proceed with his petition pro se. On January 16, 2008, the petitioner filed a motion seeking the reappointment of a special public defender, which was denied by the court, Sahúman, J., on January 29, 2008.

On February 28, 2008, the petitioner filed a second amended petition for a writ of habeas corpus. The petition contained six counts: The first two counts alleged a lack of subject matter and personal jurisdiction, the third count claimed that his guilty plea was not made intelligently, the fourth count stated that his sentence was illegal, the fifth count alleged that his guilty plea was not voluntary and the sixth count claimed that he had received ineffective assistance of his criminal trial counsel.

On June 13, 2008, the respondent, pursuant to Practice Book § 23-37, filed a motion for summary judgment with respect to counts one through five of the petition. Three days later, the respondent moved to dismiss the sixth count pursuant to Practice Book § 23-29 (3). On July 9, 2008, the petitioner also moved for summary judgment. The court, A. Santos, J., held a hearing on the pending motions on August 19, 2008. On October 3, 2008, the court issued its memorandum of decision granting the respondent’s motions and denying the petitioner’s motion.

On October 16, 2008, the petitioner filed a petition for certification to appeal from the judgment of the habeas court denying the petition for a writ of habeas corpus. On his application for waiver of fees, costs and expenses and appointment of counsel on appeal form, the petitioner set forth the following as the basis for his appeal: “I the petitioner seeks [to] appeal because the court did not take into consideration my ‘Alford doctrine plea’ and the fact that, State v. Mack, Conn. App. The judge reads a defendant’s unconditional guilty plea constitutes a waiver of his subsequent challenge to trial court’s in personam jurisdiction. Petitioner challenges [whether] or not the Alford doctrine as a plea is an unconditional plea?” On January 16, 2009, Judge Santos denied the petition for certification to appeal. The court appointed counsel for the petitioner.

On January 22, 2009, the petitioner filed the present appeal. On the appeal form, counsel indicated that this appeal was taken from the “dismissal of count six of [the] petition for [a] writ of habeas corpus and granting of [the] respondent’s motion for summary judgment.” In his preliminary statement of issues, filed on February 2, 2009, the petitioner raised the issue of “whether the habeas court erred in allowing petitioner’s appointed counsel to withdraw from representing him on his petition for [a] writ of habeas corpus.”

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification to appeal. He then proceeds to the issues of whether the court improperly permitted counsel to withdraw and, as a result, improperly granted the respondent’s motion for summary judgment. The respondent counters, inter alia, that the court could not have abused its discretion as to the threshold issue of the denial of the petition for certification to appeal because the issue of the granting of the motion to withdraw was never presented as a basis for the petitioner’s appeal. Under these specific facts and circumstances, we agree with the respondent.

Our analysis begins with the history behind the certification requirement for appeals from the denial of a petition for a writ of habeas corpus. General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

Our Supreme Court has explained that one of the goals of this statute is to limit the number of appeals filed in criminal cases and to hasten the conclusion of the criminal justice process. Iovieno v. Commissioner of Correction, 242 Conn. 689, 699, 699 A.2d 1003 (1997). Additionally, § 52-470 (b) acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal. Id., 697.

We now set forth our the well established standard of review. “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.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 121 Conn. App. 240, 243-44, 994 A.2d 685, cert. denied, 297 Conn. 926, 998 A.2d 1193 (2010). If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court. Lewis v. Commissioner of Correction, 73 Conn. App. 597, 598, 808 A.2d 1164 (2002), cert. denied, 262 Conn. 938, 815 A.2d 137 (2003).

In the present case, the habeas court denied the petitioner’s petition for certification to appeal. Pursuant to our jurisprudence, we may reverse the habeas court’s decision on the merits of a petition for a writ of habeas corpus only if we first conclude that the court abused its discretion with respect to the petition for certification to appeal. See Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 6-7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).

In Mitchell, the petitioner alleged that his trial counsel had provided him with ineffective assistance. Id., 3. The habeas court denied both the petitions for a writ of habeas corpus and certification to appeal. Id., 3-4. On appeal, the petitioner argued that the habeas court abused its discretion in denying certification to appeal by its handling of his oral request to proceed pro se at the habeas proceeding. Id., 4. We noted that this issue was not part of his habeas petition but instead was raised for the first time on appeal. Id., 4-5. We observed that it was not within our scope of review of the habeas court’s decision to deny certification to appeal. Id., 6. We reasoned: “[W]e fail to see how a court could abuse its discretion in failing to grant a petitioner certification to appeal to challenge an issue that was not first presented to the court and then ruled upon by it.” Id., 7.

We further reasoned that the ground set forth in the petition for certification to appeal was that the court improperly had denied the petition. Id. “This allegation could in no way apprise the court of the fact that the petitioner was seeking certification to appeal on the basis of the court’s treatment of his self-representation request.” Id. As a result, we determined that a review of the petitioner’s claims “would amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Id.

In the present case, the petitioner unsuccessfully objected to D’Amato’s motion to withdraw. He also filed a motion for a reappointment of a special public defender, which the court denied. His operative petition, however, did not contain any allegation with respect to the issue of D’Amato’s withdrawal. The petitioner never raised this issue during the trial on the merits of his habeas petition. Additionally, it was not mentioned in the petition for certification to appeal or on his appeal form. The allegation contained in the petition for certification to appeal failed to apprise the court that the petitioner was seeking certification to appeal on the basis of the granting of D’Amato’s motion to withdraw. See id., 7. In short, the petitioner never presented this issue in any manner to Judge Santos. Accordingly, we conclude, pursuant to the rationale of Mitchell v. Commissioner of Correction, supra, 68 Conn. App. 6-8, that the court did not abuse its discretion in denying the petition for certification to appeal.

The only substantive issue raised on appeal related to the granting of the motion to withdraw filed by D’Amato. We may only reach the merits of that issue if we determine that the habeas court abused its discretion in denying the petition for certification to appeal. In light of our conclusion that there was no abuse of discretion, we decline to review the merits of the petitioner’s appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

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

       See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Practice Book § 23-41 provides: “(a) When counsel has been appointed pursuant to Section 23-26, and counsel, after conscientious investigation and examination of the case, concludes that the case is wholly frivolous, counsel shall so advise the judicial authority by filing a motion for leave to withdraw from the case.
      “(b) At the time such motion is filed, counsel for the petitioner shall also file all relevant portions of the record of the criminal case, direct appeal and any postconviction proceedings not already filed together with a memorandum of law outlining:
      “(1) the claims raised by the petitioner and any other potential claims apparent in the case;
      “(2) the efforts undertaken to investigate the factual basis and legal merit of each claim;
      “(3) the factual and legal basis for the conclusion that the case is wholly frivolous.
      “(c) Any motion for leave to withdraw and supporting memorandum of law shall be filed under seal and provided to the petitioner. Counsel shall serve opposing counsel with notice that a motion for leave to withdraw has been filed but shall not serve opposing counsel with a copy of the motion or any supporting memorandum of law. The petitioner shall have thirty days from the date the motion and supporting memorandum are filed to file a response with the court.”

       Practice Book § 23-42 (a) provides: “The presiding judge shall fully examine the memoranda of law filed by counsel and the petitioner, together with any relevant portions of the records of prior trial court, appellate and postconviction proceedings. If, after such examination, the presiding judge concludes that the submissions establish that the petitioner’s case is wholly frivolous, such judge shall grant counsel's motion to withdraw and permit the petitioner to proceed pro se. A memorandum shall be filed setting forth the basis for granting any motion under Section 23-41.” See also Coleman v. Commissioner of Correction, 99 Conn. App. 310, 312-13, 913 A.2d 477, cert. denied, 281 Conn. 924, 918 A.2d 275 (2007).

       Practice Book § 23-37 provides: “At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

       We are mindful of our habeas jurisprudence that, following the granting of apetition for certification to appeal, “at least in the absence of demonstrable prejudice, the legislature did not intend the terms of the habeas court’s grant of certification to be a limitation on the specific issues subject to appellate review.” James L. v. Commissioner of Correction, 245 Conn. 132, 138, 712 A.2d 947 (1998); Lewis v. Commissioner of Correction, 121 Conn. App. 693, 696 n.4, 996 A.2d 1214, cert. granted on other grounds, 298 Conn. 901, 3 A.3d 70 (2010); McClean v. Commissioner of Correction, 103 Conn. App. 254, 258, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008). In those cases, once the habeas court, in its gatekeeping function, certified that appellate review was warranted, any issue could be presented on appeal, so long as the opposing party is not prejudiced. The present case is distinguishable because the habeas court denied the petition for certification to appeal. That decision acts to limit our review to a determination of whether that denial constituted an abuse of discretion, and we decline to conclude that such an abuse occurred.

       Although the petitioner claims that the court improperly granted the respondent’s motion for summary judgment, a review of his brief reveals that this claim is inextricably intertwined with the granting of D’Amato’s motion to withdraw. Additionally, we conclude that the petitioner’s claim regarding the merits of the granting of the motion for summary judgment was briefed inadequately. See Anderson v. Commissioner of Correction, 114 Conn. App. 778, 796, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).


author: PER CURIAM.

text:
    JOSEPH KOPYLEC v. ZONING BOARD OF APPEALS OF THE TOWN OF NORTH BRANFORD
    (AC 30901)
    DiPentima, C. J., and Lavine and Lavery, Js.
    Argued October 25
    officially released December 28, 2010

      Vincent T. McManus, Jr., for the appellant (plaintiff).

      John M. Gesmonde, for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal is one of a number in a long-standing zoning dispute. The plaintiff, Joseph Kopylec, appeals from the trial court’s judgment upholding, in part, a cease and desist order issued by the North Branford zoning enforcement officer. On appeal, the plaintiff claims that the trial court misconstrued the North Branford zoning regulations with regard to his use of woodchips. We affirm the judgment of the trial court.

The plaintiff is the co-owner of 3.4 acres located at 944 Totoket Road in North Branford (town), an R-40 residential zone, which permits residential dwellings, their accessory uses and farming activities pursuant to § 23.1 of the North Branford zoning regulations. On October 4,2005, Carol A. Zebb, the town zoning enforcement officer, issued a three point cease and desist order against the plaintiff. Only the second point is relevant to this appeal. Point two ordered the plaintiff to stop “stockpiling in excess of 100 cubic yards of woodchips during the calendar year and/or using the aforesaid woodchips for landscaping work, including changes of the contours of a lot when no building permit is required, without benefit of a Zoning Permit as required by Section 43 of the Zoning Regulations of the Town of North Branford . . . .”

The plaintiff appealed from the cease and desist order to the defendant, the zoning board of appeals of the town of North Branford, which upheld the cease and desist order on February 27, 2006. Thereafter the plaintiff appealed to the trial court. In a memorandum of decision filed September 10, 2008, the court sustained the plaintiffs appeal as to points one and three of the cease and desist order but denied it as to point two. On September 26,2008, the plaintiff filed a direct appeal to this court that was dismissed pursuant to Practice Book § 63-4 (additional papers to be filed by appellant). The plaintiff filed a motion to reargue on September 29, 2008, which the trial court granted. On January 20, 2009, the court issued a memorandum of decision, affirming its September 10, 2008 judgment. Thereafter, the plaintiff filed a petition for certification to appeal. Following this court’s granting of certification, the plaintiff appealed.

A court’s review of a zoning board’s decision to uphold a cease and desist order is limited to a determination of whether the record contains substantial evidence to support the order. Lallier v. Zoning Board of Appeals, 119 Conn. App. 71, 80, 986 A.2d 343, cert. denied, 295 Conn. 914, 990 A.2d 345 (2010). The role of an appellate court is to “determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Curran v. Zoning Board of Appeals, 117 Conn. App. 458, 462, 979 A.2d 599 (2009). “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [conclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). The plaintiff bears the burden of proof “to demonstrate that the board acted improperly . . . .” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).

This appeal turns on the construction of the town’s zoning regulations. “Because the inteipretation of the regulations presents a question of law, our review is plenary. . . . We also recognize that the zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant. . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible.” (Citations omitted; internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 289 Conn. 709, 715-16, 960 A.2d 1018 (2008).

The court determined that §§23 and 43 of the town’s zoning regulations are permissive in nature. Section 43 bars a variety of activities that may be conducted only in accordance with certain specific exclusions or on securing a temporary special use permit. Zebb ordered the plaintiff to stop stockpiling woodchips in excess of 100 cubic yards and/or using woodchips for landscaping work, including changes in the contours of the land when no building permit was required, without a zoning permit, as required by § 43.2.3 of the zoning regulations. In considering the plaintiffs appeal, the defendant applied § 43 of the town’s regulations.

The court found that filling of land is only permitted in accordance with § 43.2 or upon securing a temporary special use permit. The plaintiff argued that he was not using the woodchips for fill but was using them as fertilizer for agricultural purposes. The court determined, however, that § 44.5 of the North Branford zoning regulations indicates that § 43 of the regulations applies to farming operations. The plaintiffs expert, David Lord, testified that there were at least 250 to 300 cubic yards of woodchips on the plaintiffs property. There is no evidence in the record that the plaintiff obtained a temporary special use permit as required by § 43.2.3. Moreover, Zebb was not permitted to enter the property to measure the volume of woodchips. The court concluded that, given the foregoing circumstances, to say that a § 43 cease and desist order cannot issue in effect would mean that § 43 cannot be enforced. On the basis of our review of the record, we conclude that the court properly construed the zoning regulations at issue and that there was substantial evidence in the record to support the defendant’s decision.

The judgment is affirmed.

       North Branford Zoning Regs., § 23, entitled “Permitted Uses,” provides in relevant part: “23.1 . . . Land, buildings and other structures in any district may be used l'or one or more of the uses, and no other, specified in Schedule A as permitted in the district. ...”

       The defendant filed a motion to dismiss the appeal for lack of subject matter jurisdiction, which this court denied. The defendant raised the issue again in its brief but did not reanalyze the question. We, therefore, decline to review the claim.

       Section 43 of the North Branford zoning regulations provides, in relevant part: “43.1 General: Excavation, grading or filling of land, or removal of sod, loam, clay, sand, gravel or stone from any lot, is permitted only in accordance with the exclusions listed in Par. 43.2 or upon securing a TEMPORARY SPECIAL USE PERMIT from the Commission in accordance with Par. 43.3 through 43.6. Such TEMPORARY SPECIAL USE PERMIT may be granted by the Commission subject to conditions deemed necessary to prevent damage to other property and to protect the health, safety, convenience and general welfare.
      “43.2 Exclusions: A TEMPORARY SPECIAL USE PERMIT is not required in connection with the following excavation, grading, removal or filling operation ....
      “43.2.3 Work for landscaping and changing of contours on a lot, when no Building Permit is required, and then not exceed 100 cubic yards in any calendar year AND work for landscaping and changing of contours on a lot, when no Building Permit is required, and then more than 100 but not exceeding 300 cubic yards in any calendar year, provided that a Zoning Permit therefore is obtained and the Zoning Enforcement Officer, when issuing the Permit is satisfied that [certain] conditions . . . will be met.”

       The record contains photographic evidence of the woodchips on the plaintiffs property and members of the defendant conducted a site visit and noted the volume of woodchips and no evidence of agricultural use.


text:
    TARRANCE LAWRENCE v. COMMISSIONER OF CORRECTION
    (AC 30714)
    Bishop, Harper and Pellegrino, Js.
    Argued October 29
    officially released December 28, 2010

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

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jeffrey Robert Struski, special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Tarrance Lawrence, appeals following the denial of his petition for certification to appeal from the summary judgment rendered in favor of the respondent, the commissioner of correction, on his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) granted the respondent’s motion for summary judgment and (2) denied the petition for certification to appeal. We dismiss the appeal.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. At the petitioner’s murder trial in July, 1999, special public defender Donald Dakers requested a jury instruction on the lesser included offense of manslaughter in the first degree with a firearm. The trial court, accordingly, instructed the jury that if it found that the state had proved the elements of murder but the petitioner had proved the affirmative defense of extreme emotional disturbance, it must find him guilty of manslaughter in the first degree with a firearm. Subsequently, he was convicted of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). On December 3, 1999, he was sentenced to thirty-five years on the manslaughter count, two years for carrying a pistol without a permit and three years for tampering with physical evidence, to be served concurrently.

On direct appeal, the petitioner claimed that the court had instructed the jury improperly on the presumption of innocence, and we affirmed the conviction. See State v. Lawrence, 67 Conn. App. 284, 786 A.2d 1227 (2001), cert. denied, 259 Conn. 919, 791 A.2d 567 (2002). He subsequently filed a motion to correct an illegal sentence, pursuant to Practice Book § 43-22, alleging that he had been convicted under the wrong manslaughter statute. The trial court denied the motion for lack of jurisdiction, and our Supreme Court affirmed that judgment. See State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007).

On August 17, 2006, the defendant filed a petition for a writ of habeas corpus. In his amended petition of April 28, 2008, he claimed ineffective assistance of trial counsel on the ground that Dakers had requested a jury charge under the wrong manslaughter statute and ineffective assistance of appellate counsel for failure to raise a claim on direct appeal challenging the propriety of a conviction under that statute. The respondent filed a motion for summary judgment on June 24, 2008, on the ground that the petition presented no genuine issue of material fact and could be decided as a matter of law. After hearing oral argument on the motion on October 10, 2008, the habeas court rendered summary judgment in favor of the respondent on November 26, 2008. The court denied the petitioner’s petition for certification to appeal on December 4, 2008. This appeal followed.

We begin by setting forth the standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... To prove an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted; internal quotation marks omitted.) Figueroa v. Commissioner of Correction, 123 Conn. App. 862,866,3 A.3d 202 (2010), quoting Simms v. Warden, 230 Conn. 608, 612, 616, 646 A.2d 126 (1994).

To conduct this analysis, therefore, we must examine the habeas court’s rendering of summary judgment. Practice Book § 23-37 provides in relevant part that a habeas court may grant summary judgment “if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.” On review from the granting of a motion for summary judgment, our task is to determine whether the court correctly determined that the moving party was entitled, as a matter of law, to summary judgment on the basis of the absence of any genuine issues of material fact requiring a trial. Because this inquiry requires a legal determination, our review is plenary. Newsome v. Commissioner of Correction, 109 Conn. App. 159, 163, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008).

In support of his claim that the court improperly rendered summary judgment in favor of the respondent, the petitioner claims that the court improperly found that he could not demonstrate that he was prejudiced by the ineffective assistance of counsel and improperly failed to conduct an evidentiary hearing before rendering judgment. We are not persuaded.

We turn first to the claim that the petitioner was prejudiced by the actions of his counsel. “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [ajmendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Emphasis in original; internal quotation marks omitted.) Tuck v. Commissioner of Correction, 123 Conn. App. 189, 194, 1 A.3d 1111 (2010).

The habeas petition was premised on the assertion that both trial and appellate counsel should have argued that the petitioner was entitled to a charge on manslaughter in the first degree under General Statutes § SSa-SS as a lesser included offense of murder. Instead, trial counsel requested a charge on manslaughter in the first degree with a firearm under § 53a-55a,* which carries a higher penalty. In its memorandum of decision, the habeas court found that the petitioner “was not entitled to receive an instruction on manslaughter in the first degree even if requested” and, therefore, that the petitioner was not prejudiced by counsel's actions. We agree.

The difference between the two first degree manslaughter statutes is that § 53a-55a requires the state to prove not only the essential elements of manslaughter in the first degree as defined in § 53a-55 but also an extra element, namely, that the defendant used or threatened to use a firearm in the commission of that crime. In the present case, the information specifically charged the petitioner with “caus[ing] the death of [the victim] by the use of a firearm . . . .” (Internal quotation marks omitted.) Given that the state assumed the burden of proving this element in charging the petitioner with having committed murder with a firearm, there is no support in our jurisprudence for the petitioner’s argument that he was entitled to an instruction on manslaughter in the first degree under § 53a-55 rather than manslaughter in the first degree with a firearm under § 53a-55a. To the contrary, where the state files an information charging a defendant with murder committed with a firearm, our appellate courts consistently have held that it is proper to instruct the jury on the lesser included offense of manslaughter in the first degree with a firearm. See, e.g., State v. Tomlin, 266 Conn. 608, 621, 835 A.2d 12 (2003); State v. Rosario, 82 Conn. App. 691, 698-99, 846 A.2d 926, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004); State v. Ferreira, 54 Conn. App. 763, 769-70, 739 A.2d 266, cert. denied, 251 Conn. 916, 740 A.2d 866 (1999); cf. State v. Greene, 274 Conn. 134, 157, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). Consequently, the record reflects that trial counsel sought and received a charge on the proper lesser included offense and, therefore, did not render ineffective assistance under Strickland. For the same reason, appellate counsel was not deficient in failing to raise this issue on appeal.

We next turn to the petitioner’s claim that he was entitled to an evidentiary hearing in the habeas court prior to the rendering of summary judgment. Although decisional law suggests that a habeas petitioner is entitled to present evidence on new claims; see Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 725-26,891 A.2d 25, cert. denied, 278 Conn. 902,896 A.2d 104 (2006); that general proposition cannot be interpreted reasonably as meaning that the court must afford a petitioner an evidentiary hearing when the record plainly shows no genuine issue of material fact and the application of the law requires no evidentiary exposition. To conclude otherwise would be to eviscerate Practice Book § 23-37, which, as noted, provides that the habeas court may grant summary judgment upon its determination that no genuine issue of material fact exists so as to entitle the petitioner to a trial.

Here, the habeas petition was premised on the assertion that the petitioner was entitled to a jury instruction on manslaughter in the first degree under § 53a-55. “Whether one offense is a lesser included offense of another presents a question of law.” State v. Tomlin, supra, 266 Conn. 615. Accordingly, faced only with this legal question, the habeas court properly concluded that there was no genuine issue of material fact and that no evidentiary hearing was required prior to rendering summary judgment on the petition.

Having reviewed the record, we conclude that, on the basis of the summary judgment properly rendered by the habeas court, the issue of whether trial and appellate counsel provided effective assistance is not debatable among jurists of reason, could not have been determined in a different manner and does not deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Therefore, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-55a (a) provides: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       The penalty for manslaughter in the first degree may not exceed twenty years; General Statutes § 53a-35a (6); whereas the penalty for manslaughter in the first degree with a firearm may not exceed forty years. General Statutes § 53a-35a (5).

        Mitchell interprets General Statutes § 52-470 (a), which provides: “The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.”


text:
    STATE OF CONNECTICUT v. JAVIER SANTOS
    (AC 30668)
    DiPentima, C. J., and Lavine and Flynn, Js.

      Argued October 19, 2010
    officially released January 4, 2011

      Javier Santos, Sr., pro se, the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Javier Santos, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court erred in determining that (1) a new or supplemented presentence investigation report was not required when his probation was revoked pursuant to General Statutes § 53a-32 (d) and (2) his sentence was not imposed in an illegal manner as a result of the court’s failure to order, sua sponte, a new or supplemented presentence investigation report. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On August 17, 1995, the defendant was convicted of robbery in the first degree. State v. Santos, 108 Conn. App. 250, 252, 947 A.2d 414 (2008). A presentence investigation report was completed, and the court sentenced the defendant to twelve years imprisonment, execution suspended after five years, and five years probation. On June 5, 2000, the defendant began his five year probation sentence. On April 12, 2005, approximately seven weeks before the expiration of his probation sentence, the defendant was arrested and charged with sexual assault in the first degree and sexual assault in the second degree. On May 25, 2005, a warrant for the defendant’s arrest issued for violation of probation.

“The defendant’s trial on the sexual assault charges and his hearing on the violation of probation were held simultaneously, with additional evidence being allowed on the violation of probation charge after the jury returned its verdict. The jury found the defendant not guilty of the sexual assault charges, using the criminal standard of proof of beyond a reasonable doubt.” Id., 253. Pursuant to § 53a-32, however, the court found that the defendant had violated the conditions of his probation, revoked his probation and ordered him to serve six of the seven years of his unexecuted sentence. This court affirmed the trial court’s violation of probation judgment. Id., 252. The sentence review division of the Superior Court denied the defendant’s application to reduce his sentence.

On August 29, 2008, the defendant filed a motion to correct an illegal sentence with the court. On October 24, 2008, at a hearing on the motion, the defendant was allowed to amend his motion orally to include the claim that his sentence was imposed illegally because the court had neglected to order a new or supplemented presentence investigation report, pursuant to the requirements of Practice Book § 43-3 (a), prior to his sentencing for the violation of probation. On November 17, 2008, the court denied his motion. This appeal followed.

I

On appeal, the defendant first claims that Practice Book § 43-3 (a) requires a court to order a new or supplemented presentence investigation report prior to revoking probation pursuant to § 53a-32 and imposing any portion of the unexecuted original sentence. We disagree.

We begin by setting forth our standard of review. “ [A] claim that the trial court improperly denied a defendant’s motion to correct an. illegal sentence is reviewed pursuant to the abuse of discretion standard.” State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006). To the extent that he contends that the court was required to order a new or supplemented presentence investigation report pursuant to Practice Book § 43-3 (a), however, “the defendant’s claim presents a question of statutory interpretation over which our review is plenary.” Id.

The defendant does not claim that he requested an updated presentence investigation report prior to the dispositional phase of his hearing, nor does he claim that the court erroneously denied such a request. Additionally, the defendant does not claim that § 53a-32 explicitly requires a court to order one. Rather, the defendant argues that the court was required, sua sponte, to order a new or updated presentence investigation report in his case because “nothing in [§ 53a-32] allows or mandates an exception to [Practice Book] § 43-3 when sentencing a defendant under ... § 53a-32.” The defendant argues that because the court did not order a new or supplemented presentence investigation report, the sentence imposed was illegal. We disagree and conclude that Practice Book § 43-3 (a) had no application to the defendant’s sentence issued pursuant to § 53a-32.

Practice Book § 43-3 (a) provides in relevant part: “If the defendant is convicted of a crime . . . the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. . . .” Thus, the defendant’s argument rests on the premise that, for purposes of Practice Book § 43-3 (a), he was “convicted of a crime” when found to be in violation of probation and thereafter sentenced to a portion of his unexecuted sentence pursuant to § 53a-32. This premise is without support in the law.

“We begin by reiterating the well recognized principle that a probation revocation hearing is not a stage of a criminal prosecution. . . . Probation violation matters are statutory procedures to which many substantive and procedural rules of criminal law do not apply.” (Citations omitted.) State v. Jacobs, 30 Conn. App. 340, 342, 620 A.2d 198 (1993), aff'd, 229 Conn. 385, 641 A.2d 1351 (1994). “[A] probation revocation proceeding consists of two distinct stages. . . . The first phase is conducted to determine liability, and . . . [t]he second, or disposition, phase occurs if a violation of probation is established in the first phase. . . . During the second phase, the court makes its disposition as authorized by § 53a-32.” (Citations omitted.) State v. Strickland, 243 Conn. 339, 348, 703 A.2d 109 (1997).

“Revocation hearings are not concerned with punishment or retribution. . . . The element of ‘punishment’ in probation revocation of [the] defendant is attributable to the crime for which he was originally convicted and sentenced. Thus, any sentence [the] defendant had to serve as the result of the violation of [probation] was ‘punishment’ for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted.” (Citations omitted; emphasis added.) State v. Smith, 207 Conn. 152, 177-78, 540 A.2d 679 (1988); see also State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992) (“the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information”).

Accordingly, when the defendant was sentenced pursuant to § 53a-32, he had not been “convicted of a crime” for purposes of Practice Book § 43-3 (a). The court revoked the defendant’s probation pursuant to § 53a-32 (d). Neither that statute nor the associated Practice Book § 43-29 requires a court to order a new or supplemented presentence investigation report prior to the revocation of probation. Thus, the court was not required to order a new or supplemented presentence investigation report. See State v. Strickland, 42 Conn. App. 768, 785-86, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997).

II

The defendant also contends that he received an illegal sentence because, as a consequence of not having an updated presentence investigation report, the court relied on inaccurate information in sentencing him. Specifically, the defendant argues that although he was allowed to speak in mitigation of his sentence, the court did not find him credible, and instead sentenced him relying on the outdated educational, employment and family histories that were presented in his original presentence investigation report, as well as the state’s false allegation that he had been derelict in his child support obligations. The defendant contends that had an updated presentence investigation report been ordered, the court would have sentenced him to a term considerably less than the six year term that he received. We are not persuaded.

“We will reverse the court’s denial of the [defendant’s] motion to correct [an illegal] sentence only on a showing that the court abused its discretion. . . . Furthermore, in reviewing the [defendant’s] claims, we do not question credibility determinations reached by the court, for the trial court is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) State v. Cazzetta, 97 Conn. App. 56, 60, 903 A.2d 659 (2006).

“[I]f a sentence is within statutory limits it is not generally subject to modification by a reviewing court. ... A sentencing judge has very broad discretion in imposing any sentence within the statutory limits .... The court may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come.” (Citations omitted; internal quotation marks omitted.) State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986). A sentencing court, however, must rely on information possessed of “some minimal indicium of reliability . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ryerson, 20 Conn. App. 572, 585, 570 A.2d 709, cert. denied, 214 Conn. 806, 573 A.2d 318 (1990). The court, therefore, is precluded “from relying on materially untrue or unreliable information in imposing a sentence.” State v. Parker, 295 Conn. 825, 843, 992 A.2d 1103 (2010).

To establish that his sentence was imposed in an illegal manner, the defendant is “required to show that the information was materially false or unreliable and that the trial court relied substantially on the information in determining the sentence.” State v. Ryerson, supra, 20 Conn. App. 585. “A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence.” (Internal quotation marks omitted.) State v. Parker, supra, 295 Conn. 843 n.12.

The defendant has not carried his burden. The record shows that the defendant and his attorney both spoke in mitigation of the defendant’s sentence. The defendant had the opportunity to explain his educational and employment circumstances, and to address the state’s contention that he was behind on his child support obligations. “The primary value of a [presentence investigation report] stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court’s attention by either party by means other than a [presentence investigation report].” (Internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 683 n.18, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). To the extent the defendant asks us to consider the propriety of the court’s credibility determinations at the dispositional phase of his revocation of probation hearing, we decline to do so.

The record shows that in determining the defendant’s sentence the court inquired into whether the goals of rehabilitation thought to be served by probation were being met by the defendant. The court gave specific consideration to the gravity of the defendant’s initial conviction, the information in the defendant’s original presentence investigation report, the nature and number of the defendant’s probation violations and the defendant’s employment history while on probation. The defendant has not identified, nor are we able to find in the record, any materially false information specifically considered by the court in determining the defendant’s sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       As noted by the court, after the pleadings and prior to the court’s decision, subsection (b) of § 53a-32 was redesignated subsection (d) by Public Acts 2008, No. 08-102, § 7. Hereafter, for convenience, we refer only to § 53a-32 (d).

       In pertinent part, the court ruled: “The defendant’s reliance on the sentencing procedures of Practice Book § 43-3 is misplaced. A trial court revokes probation pursuant to General Statutes § 53a-32 [(d)] ....
      “Neither ... § 53a-32 [(d)] nor Practice Book § 43-29 mandates that a presentence investigation [report] be provided prior to the revocation of probation or authorizes a trial court to exercise its discretion in ordering a presentence investigation [report]. . . .

        “Our Supreme Court has decided that a defendant’s right to due process at sentencing does not include a right to a [presentence investigation report]. . . .
      “Information usually presented in a presentence investigation [report] was brought to the court’s attention prior to the defendant’s sentence imposition on the violation of probation.” (Citations omitted; internal quotation marks omitted.)

       See State v. Strickland, 243 Conn. 339, 347, 703 A.2d 109 (1997) (“our Practice Book provisions are interpreted in accordance with the same principles that guide interpretation of our General Statutes”).

       General Statutes § 53a-32 (d) provides in relevant part: “If [a] violation [of probation] is established, the court may . . . revoke the sentence of probation . . . [and] [i]f such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence . . . .”

       In addition, Practice Book § 43-3 (a) effectuates the right codified in General Statutes § 54-91a. State v. Olson, 115 Conn. App. 806, 812-14, 973 A.2d 1284 (2009). Section 54-91a provides in relevant part: “No defendant convicted of a crime . . . the punishment for which may include imprisonment for more than one year, may be sentenced . . . until a written report of investigation by a probation officer has been presented to and considered by the court, if the defendant is so convicted for the first time in this state . . . .” (Emphasis added.) We note that under this statute, the defendant would not have a right to a new or updated presentence investigation report prior to sentencing for a second conviction within the state.

       As permitted by Practice Book § 43-22, the defendant filed a motion to correct an illegal sentence in which he asserted that his sentence was imposed in an illegal manner. “A sentence imposed in an illegal manner is one within the relevant statutory limits but . . . imposed in a way which violates [a] defendant’s right ... to be sentenced by a judge relying on accurate information or considerations solely in the record . . . .” (Internal quotation marks omitted.) State v. Henderson, 93 Conn. App. 61, 67, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006).