author: GRUENDEL, J.

text:
    RICHARD SAUCIER v. COMMISSIONER OF CORRECTION
    (AC 32813)
    Gruendel, Beach and Espinosa, Js.
    Argued October 17
    officially released December 18, 2012

      Gennaro Bizzarro, special public defender, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, Catherine Brannelly Austin, senior assistant state’s attorney, and John Spalding, certified legal intern, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Richard Saucier, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court erred in finding that both his trial counsel and appellate counsel did not provide him with ineffective assistance. We dismiss the petitioner’s appeal.

The following factual and procedural history is relevant to the resolution of the petitioner’s appeal. As this court set forth in State v. Saucier, 90 Conn. App. 132, 876 A.2d 572 (2005), aff'd, 283 Conn. 207, 926 A.2d 633 (2007), the jury reasonably could have found the following facts. “On January 10, 2002, the [petitioner] telephoned the victim and asked her to cover a shift as a bartender at a restaurant. The victim agreed and later was picked up by the [petitioner], who drove her to work. Following her shift, the victim drove with the [petitioner] to a friend’s house, where they smoked marijuana. The two left after twenty minutes. The victim was under the impression that the [petitioner] was going to drive her home. Instead, he drove her to a deserted tractor-trailer park, then to a highway underpass and finally to his home. The [petitioner] brutally and repeatedly sexually assaulted the victim at each location. Early the next morning, after the [petitioner] had fallen asleep, the victim escaped and ran virtually naked to a nearby business, where the police were called. The police took the victim to a hospital, stopping briefly en route in order for the victim to point out the [petitioner’s] home.” Id., 134-36.

Thereafter, the petitioner was charged, under a substitute information, with six counts of first degree sexual assault in violation of General Statutes § 53a-70 (a) (1) and with one count of first degree kidnapping in violation of General Statutes § 53a-92 (a) (2) (A). At all times while the matter was at the trial level, attorney Gregory St. John represented the petitioner. On June 6, 2003, after a jury trial, the petitioner was found guilty of four of the six counts of first degree sexual assault and of first degree kidnapping. After rendering judgment in accordance with the jury verdict, the court sentenced the petitioner to a total effective term of thirty years incarceration followed by ten years of special parole.

The petitioner, then represented by attorney Glenn W. Falk, appealed from the judgment of conviction. Both this court and our Supreme Court affirmed the petitioner’s conviction. State v. Saucier, 283 Conn. 207, 210, 926 A.2d 633 (2007); State v. Saucier, supra, 90 Conn. App. 134. By way of an amended petition for a writ of habeas corpus, the petitioner alleged that he was denied the effective assistance of his trial counsel because his trial counsel failed (1) to cross-examine the state’s DNA expert as to the biological source of the victim’s DNA found on the petitioner’s body and (2) to call a DNA expert to testify at trial about the possibility of indirect DNA transfer from one person to another. The petitioner also alleged that his appellate counsel rendered ineffective assistance by failing to include in his brief to this court the issue of whether the trial court improperly excluded as hearsay testimony of the victim’s friend, a failure that caused our Supreme Court to deem the claim abandoned.

On November 4, 2009, the habeas court conducted a trial and ultimately denied the petition for a writ of habeas corpus. The court concluded that the petitioner had failed to demonstrate that he was prejudiced by his trial counsel’s decisions regarding the DNA evidence. With respect to the petitioner’s claim of ineffective assistance by appellate counsel, the court determined that the decision not to brief the nonhearsay issue was not deficient performance, and, even if it were, the court stated that the petitioner did not present any evidence that he was prejudiced by that decision. The court subsequently denied certification to appeal and this appeal followed.

“Faced with the habeas court’s denial of certification to appeal, the petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn. App. 465, 466-67, 922 A.2d 221 (2007). “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.) Axel D. v. Commissioner of Correction, 135 Conn. App. 428, 432, 41 A.3d 1196 (2012). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Perry v. Commissioner of Correction, 131 Conn. App. 792, 796, 28 A.3d 1016, cert. denied, 303 Conn. 913, 32 A.3d 966 (2011).

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received . . . was constitutionally adequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Axel D. v. Commissioner of Correction, supra, 135 Conn. App. 432.

I

We begin by addressing the petitioner’s claim that the habeas court abused its discretion in finding that his trial counsel, attorney St. John, had not rendered ineffective assistance. The petitioner claims that St. John’s representation was deficient because he failed to cross-examine the state’s expert witness regarding the exact biological source of the DNA evidence police collected from a swab of the petitioner’s penis. He argues that because the victim had reported that the assault largely consisted of forced oral sex, if the biological source of the victim’s DNA was “something other than saliva,” this would enhance the petitioner’s credibility and diminish that of the victim. The petitioner also asserts that St. John’s assistance was deficient because he failed to call a DNA expert to testify regarding the possibility that the victim’s DNA collected from the petitioner’s penis could have been transferred indirectly, as a result of the petitioner’s penis coming in contact with a towel the victim used after showering. The petitioner contends that if this testimony had been before the jury, it would have created reasonable doubt as to his guilt. We are not persuaded.

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 136 Conn. App. 90, 96, 41 A.3d 1088, cert. denied, 306 Conn. 913, 46 A.3d 97 (2012). “To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [counsel] was not functioning as the counsel guaranteed ... by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted; internal quotation marks omitted.) Axel D. v. Commissioner of Correction, supra, 136 Conn. App. 433.

“To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. ... A reasonable probability is one [that] is sufficient to undermine confidence in the result.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, supra, 135 Conn. App. 95-96. “Furthermore, because a successful petitioner must satisfy both prongs . . . failure to satisfy either ... is fatal to a habeas petition.” Axel D. v. Commissioner of Correction, supra, 135 Conn. App. 433.

We agree with the habeas court’s conclusion that regardless of whether St. John’s decisions regarding the DNA evidence constitute deficient performance, the petitioner has not shown that there was a “reasonable probability that, but for these alleged errors, the outcome of the trial would have been different.” As the habeas court explained in its memorandum of decision, in fight of the victim’s testimony, her immediate report of the crime, the testimony of several witnesses to her having run naked into a hair salon and then a luncheonette to call police, and the medical and photographic evidence of her injuries, it is unlikely that the fact that the “specific biological source of the victim’s DNA found on the petitioner’s penis was unknown and the fact that indirect transfer of DNA is theoretically possible would have rendered the petitioner’s testimony of what happened more credible or would have created reasonable doubt as to his guilt.” (Emphasis in original.) We, thus, conclude that the court did not err in determining that the petitioner failed to meet his burden of showing that he suffered actual prejudice as a result of St. John’s trial decisions regarding the DNA evidence. The petitioner’s ineffective assistance of counsel claim, therefore, must fail.

II

We turn next to the petitioner’s claim that the habeas court improperly found that his appellate counsel, attorney Falk, had not rendered ineffective assistance. The petitioner asserts that when appealing from the judgment of conviction, Falk should have argued in his brief to this court that testimony during the criminal trial from the victim’s friend that the victim had said, “I got [the petitioner]. I got him good,” was admissible as nonhearsay because it was offered to illustrate the victim-declarant’s state of mind, rather than to prove the truth of the matter asserted. The petitioner further asserts that Falk’s failure to brief this issue caused him prejudice in that the Supreme Court declined to review the claim because it had not been raised in this court first. We do not agree.

During the habeas trial, Falk testified that in preparing the case for appeal he reviewed the transcripts and exhibits looking for any preserved viable claims and consulted on this matter with another experienced attorney who works in his office. He explained that he initially did not believe that the nonhearsay claim had merit, but that he was only convinced that it “possibly had merit” when a law student intern suggested briefing the issue to the Supreme Court. Falk also testified that at the time of the appeal to this court, he had surmised from the trial transcripts that the claim likely was not preserved properly at the trial level and that there was little case law or other authority in Connecticut that lent credence to this claim.

Just as with a claim of ineffective assistance of trial counsel, success on a claim of ineffective assistance of appellate counsel “requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, supra, 135 Conn. App. 98. Moreover, “[a] habeas court will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

“After demonstrating deficient performance, the petitioner must then [show prejudice] by establishing] that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.” (Internal quotation marks omitted.) Watson v. Commissioner of Correction, 111 Conn. App. 160, 168, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

Given that Falk made his tactical decision to focus on the strongest of the petitioner’s claims on appeal to this court after considering the relevant case law and whether the claim was properly preserved, and after consulting with other experienced counsel, we conclude that the habeas court correctly determined that Falk’s representation was not deficient. Falk’s strategy of culling out weaker claims is sound, not deficient, practice, particularly when based upon a thorough review of the trial record and the relevant case law. Accordingly, the petitioner has failed to show that the habeas court abused its discretion in determining that Falk’s representation was not ineffective. While we need not reach the question of whether the petitioner has met the second part of his burden to have reversed the habeas court’s denial of his petition for certification to appeal, we note that nothing in the record before us suggests that the petitioner would be able to show that the habeas court’s decision should be reversed on its merits.

After a careful review of the record and briefs, we agree with the habeas court’s determination that the petitioner was not deprived of the effective assistance of counsel, either at the trial or appellate stage of the proceedings. We are not persuaded that the habeas court’s conclusions about the performance of the petitioner’s trial, or appellate counsel are debatable among jurists of reason, could be resolved in another manner or deserve encouragement to proceed further. Consequently, the petitioner has failed to meet his burden of establishing that the habeas court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

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

       Our Supreme Court stated that it “decline[d] to reach the [petitioner’s] claim that the statement was not hearsay because he abandoned it by failing to mention it in his brief to the Appellate Court.” State v. Saucier, supra, 283 Conn. 223.

       As we have determined that the petitioner has failed to show that Falk’s representation was deficient, we need not analyze whether there was prejudice to the petitioner.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    ROY TROTTER v. COMMISSIONER OF CORRECTION
    (AC 32499)
    DiPentima, C. J., and Robinson and Bear, Js.

      Argued September 27
    officially released December 18, 2012

      Michael Zariphes, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Roy Trotter, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim of ineffective assistance of his trial counsel. We dismiss the appeal.

The following facts and procedural history are relevant to our resolution of this appeal. On March 14,2000, the petitioner was convicted, following a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a). Pursuant to astipulation by the petitioner and the state, the trial court also found the petitioner guilty of violating General Statutes § 53-202k, a sentence enhancement statute. On April 27,2000, the petitioner was sentenced to a total effective term of thirty years imprisonment. On April 9, 2002, the petitioner’s conviction was upheld on appeal. State v. Trotter, 69 Conn. App. 1, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). On August 31, 2005, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged ineffective assistance of his trial counsel and his appellate counsel. A habeas trial was held on September 23, 2005. On September 29, 2005, the habeas court declared a mistrial because it was not aware that exhibits had been filed and did not consider those exhibits when rendering its decision.

On May 18, 2006, the petitioner filed a pro se petition for a writ of habeas corpus under docket number CV-06-4001101-S. On August 3, 2006, the petitioner filed a second pro se petition for a writ of habeas corpus under docket number CV-06-4001228-S. On May 5, 2009, the court granted the petitioner’s motion to consolidate these two habeas files, designating docket number CV-06-4001228-S as the controlling file.

On May 15, 2009, the petitioner filed the operative amended petition for a writ of habeas corpus alleging ineffective assistance of his trial counsel. A habeas trial was held on October 30, 2009, and July 16, 2010. The trial concluded with the habeas court rendering an oral decision in which it denied the petition. Subsequently, the petitioner filed a petition for certification to appeal, which the court denied. This appeal followed.

On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and that the court erred in rejecting his claim that his trial counsel rendered ineffective assistance by failing to provide correct, adequate and meaningful advice regarding the state’s plea offer. Specifically, the petitioner claims that the court erred in concluding that the petitioner did not sustain his burden of demonstrating that his trial counsel rendered deficient performance by failing to advise the petitioner that if he rejected the state’s plea offer, the state would amend the information to increase his maximum sentence exposure by adding a charge and applying a sentence enhancement. In support of this ineffective assistance of counsel claim, the petitioner argues that he suffered prejudice from his trial counsel’s deficient performance because, but for his trial counsel’s inadequate advice regarding his maximum sentence exposure, he would have accepted the state’s plea offer. We are not persuaded.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Citation omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn. App. 850, 853-54, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance. ... To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 127-28, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub. nom. Greene v. Arnone, 563 U.S. 1009, 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011). With these principles in mind, we now address the petitioner’s claim of ineffective assistance of counsel to determine whether the habeas court abused its discretion in denying the petition for certification to appeal.

In support of his claim that the court erred in concluding that he failed to sustain his burden of demonstrating that his trial counsel rendered deficient performance, the petitioner argues that his trial counsel failed to inform him that if he rejected the state’s plea offer, the state would amend the information to increase his maximum sentence exposure by adding a charge for carrying a pistol without a permit and by applying a sentence enhancement to the attempt to commit murder charge. In October, 2009, at the second habeas trial, the petitioner testified that his trial counsel informed him that his maximum sentence exposure totaled twenty years imprisonment and that his trial counsel failed to inform him that he faced the possibility of additional incarceration if the prosecutor added the charge of carrying a pistol without a permit and added a sentence enhancement on the attempt to commit murder charge pursuant to § 53-202k.

The petitioner also presented the testimony of attorney Gary A. Mastronardi, who was recognized by the court as an expert in criminal defense law and who had practiced criminal defense law in the judicial district of Fairfield for twenty-seven years. Mastronardi testified that, on the basis of the underlying factual scenario, the defendant faced twenty years for attempt to commit murder and assault in the first degree, but the additional charge of carrying a pistol without a permit and the sentence enhancement increased his maximum sentence exposure to thirty years. Mastronardi testified that the petitioner’s trial counsel should have been aware of and should have advised the petitioner of the additional sentence exposure due to the use of a firearm during the commission of the charged offenses. Mastro-nardi also testified that his opinion was based on the petitioner’s testimony at the September, 2005 habeas trial and that his opinion would have to change if the petitioner’s testimony were not true.

The habeas court found the petitioner’s testimony, including his testimony that his trial counsel had not informed him about the additional sentencing exposure, not credible. This finding left the petitioner without any record evidence to support his claim that his trial counsel provided inadequate advice regarding his maximum exposure at sentencing. As a reviewing court, we cannot second-guess the court’s credibility determination. See State v. White, 127 Conn. App. 846, 851, 17 A.3d 72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011). Lacking any credible evidence to demonstrate that the petitioner’s trial counsel failed to advise the petitioner regarding the additional sentence exposure, the court found that “it is far more likely that in counseling [the petitioner] in regard to the plea bargain, [the petitioner’s trial counsel] would have discussed this matter with [the petitioner].” Accordingly, the court concluded that the petitioner failed to satisfy his burden of showing that “there was deficient performance on the part of [the petitioner’s trial counsel].” Our own review of the record does not persuade us otherwise. Furthermore, our determination that the habeas court did not err in concluding that petitioner failed to sustain his burden of demonstrating that his trial counsel rendered deficient performance is dispositive of the petitioner’s ineffective assistance of counsel claim in its entirety. For that reason, we do not reach the petitioner’s prejudice argument addressing the second prong of the ineffective assistance of counsel standard. See Norton v. Commissioner of Correction, supra, 132 Conn. App. 866 (“[a] reviewing court can find against a petitioner on either ground, whichever is easier” [internal quotation marks omitted]).

After a thorough review of the record, we conclude that the court properly concluded that the petitioner failed to sustain his burden of demonstrating that his trial counsel rendered ineffective assistance. The petitioner failed to establish that the issues he raised are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions he raised are adequate to deserve encouragement to proceed further. See id., 863-54. Accordingly, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also had alleged ineffective assistance of his appellate counsel at his habeas trial. The habeas court noted that the petitioner did not proceed on that claim and, therefore, considered it abandoned. The petitioner does not challenge the habeas court’s decision on that claim on appeal.

       On appeal, the petitioner sets forth two distinct claims of ineffective assistance of his trial counsel. One of those claims is that his trial counsel rendered ineffective assistance by erroneously advising him that his maximum exposure for the crimes of attempt to commit murder and assault in the first degree was twenty years incarceration, rather than the possibility of two consecutive terms of twenty years incarceration, because for sentencing purposes the offenses would be merged. The state asserts that this claim is unpreserved and unreviewable because it was not raised in the petitioner’s amended habeas petition, was never argued to the habeas court and the habeas court did not address the claim in its decision. The petitioner argues that the habeas court committed plain error by failing to conclude that his trial counsel had rendered deficient performance because it is clear that his trial counsel’s advice that the prohibition against double jeopardy prohibited sentencing on both charges was erroneous. At oral argument before this court, the petitioner conceded that he did not argue this double jeopardy claim before the habeas court, but he argued, nonetheless, that it was raised in his petition. The petitioner requests that this court review the claim under the plain error doctrine because a manifest injustice has been done.
      Even if we were to read the petitioner’s amended petition broadly to encompass this claim, it remains evident that the habeas court made no findings regarding this claim nor did it address this claim when rendering its decision. Furthermore, the petitioner conceded that he did not argue the merits of this claim before the habeas court, and there is nothing in the record that demonstrates that the petitioner alerted the habeas court that he believed that the court had misconstrued or failed to address one of the grounds in his habeas petition. We conclude, therefore, that the claim was abandoned in the habeas court. See Brown v. Commissioner of Correction, 104 Conn. App. 144, 150 n.7, 931 A.2d 963 (“Even if the amended petition could be read as raising this claim, in fact it was neither raised nor addressed in any way at the hearing. Accordingly, it was abandoned.”), cert. denied, 284 Conn. 937, 937 A.2d 693 (2007); see also Henderson v. Commissioner of Correction, 129 Conn. App. 188, 198, 19 A.3d 705 (“A reviewing court will not consider claims not raised in the habeas petition or decided by the habeas court. . . . Appellate review of claims not raised before the habeas court would amount to an ambuscade of the [habeas] judge.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011).
      Additionally, although the petitioner requests that we review this claim pursuant, to the plain error doctrine, we decline his invitation because the present circumstances do not warrant such extraordinary measures. See Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009) (“the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings” [internal quotation marks omitted]).

       Because it is not relevant to the outcome of this appeal, we make no assessment as to the accuracy of this testimony.


author: DiPENTIMA, C. J.

text:
    ELIANA NASSRA v. GEORGE A. NASSRA
    (AC 33254)
    DiPentima, C. J., and Beach and Sullivan, Js.

      Argued October 15
    officially released December 18, 2012

      Thomas J. Weihing, for the appellant (defendant).

      Bonnie Amendola, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, George A. Nassra, appeals from the postdissolution orders of the trial court. Specifically, the defendant claims that the court’s order improperly constituted a modification of the terms of the parties’ separation agreement. We agree with the defendant and therefore reverse the judgment of the court.

The following facts and procedural history are relevant to this appeal. The plaintiff, Eliana Nassra, and the defendant were married on July 4, 1993, in Tripoli, Lebanon. On December 11, 2008, the plaintiff commenced an action seeking the dissolution of the marriage. On November 9, 2010, the court dissolved the marriage and incorporated the terms of the parties’ separation agreement and parental responsibility plan for their two minor children into the dissolution judgment.

Section 14.1 of the separation agreement set forth the following: “Subject to the provisions of this [agreement, [e]ach party does for herself or himself, and his or her . . . legal representatives . . . remise, release and/or forever voids, releases, and discharges the other of and from all cause or causes of action, suits, debts, claims, rights, contracts, agreements, grievances, sums of money, controversies, accounts, reckonings, bonds, bills, specialties, promises, liabilities, attorney’s fees and/or remedies whatsoever, whether in law or in equity, whether known or unknown, which either of the parties hereto ever had or now has, actual or potential, against the other, for, upon, or by any reason of any matter, cause or thing whatsoever occurring on or before the effective date of this Order including, but without limiting the breadth of the foregoing: (a) Claims arising under any state or local statute, law, ordinance, rule or regulation; (b) Claims arising under the common or statutory law of any nation, state or political subdivision whether sounding in: express or implied contract, quasi contract, unjust enrichment, quantum meruit, any fiduciary relationship; covenant of good faith or fair dealing; promissory estoppel; intentional or negligent infliction of emotional [distress; defamation; adultery; invasion of privacy; fraud; misrepresentation, assault, battery, negligence and/or any other tort, contract or other civil wrong allegedly arising out of acts or omissions by one party against the other; except that each party hereto does not release the other from the claim that their marriage has broken down irretrievably in order to facilitate the parties’ action for dissolution of marriage. Notwithstanding the provisions of this paragraph to the contrary, the [p]laintiff does not waive any accrued rights she may have to receive social security benefits from the federal government by virtue of her having been married to the [defendant.”

In addition to the typed Section 14.1, the parties agreed to the addition of the following handwritten sentence into their agreement: “The [defendant] shall provide proof to the [plaintiff] through counsel within one week of the date he notifies his counsel to withdraw the pending lawsuit against the [plaintiff] in Lebanon.”

On January 19, 2011, the plaintiff filed a motion for contempt in which she alleged that the defendant had “willfully and intentionally violated the terms of the [separation [agreement because [he had] failed to withdraw the pending case against the [p]laintiff in Lebanon.” The plaintiff further claimed that the defendant had appeared in court in Lebanon through counsel and denied that there was an agreement to withdraw that case. As a result, a trial had been scheduled for May 9, 2011, and the plaintiff faced incarceration if she failed to attend.

The court held a hearing on February 24, 2011. The defendant testified that he had commenced an action in Lebanon against the plaintiff and a codefendant, Toulic Akiki. He also stated that he been in contact with his attorney in Lebanon by telephone and e-mail. He claimed that he verbally instructed the attorney in Lebanon to withdraw the case.

After further discussion, the court stated that the issue was not whether the matter had been withdrawn, but rather whether the defendant had given unequivocal notice to his attorney in Lebanon to withdraw the pending action. The court stated that the plaintiff was not entitled to a withdrawal of the Lebanon action, but only to proof that the defendant has unequivocally directed his attorney in Lebanon to withdraw that action. It then noted that if the defendant needed to direct his attorney there to withdraw the action against a third party in order to have the matter withdrawn as to the plaintiff, then the defendant was required to do that in order to comply with the parties’ agreement.

The court held a second hearing onMarch 3,2011. The court determined that the letter sent by the defendant to his lawyer in Lebanon did not comply with its orders issued at the February 24, 2011 hearing. The court declared that “[t]he order was that [the defendant] was to provide proof that he told his attorney to do whatever it took to get the action withdrawn against [the plaintiff], including if that meant withdrawing the action against another party.” After a further colloquy, the defendant provided testimony. The defendant stated that following the February 24, 2011 hearing, he spoke with his attorney in Lebanon via telephone and e-mail and directed him to withdraw the pending case against the plaintiff.

Following the conclusion of the evidentiary hearing, which included testimony from the plaintiff, the court issued the following order: “Well, what [the plaintiffs counsel] could do is to draw up a letter to be signed by [the defendant], to the effect instructing his attorney that they’re to cease any proceedings in the action against [the plaintiff] or anybody with her in the courts in Lebanon; that he’s to withdraw any authority for anyone to act as his proxy in such a proceeding in Lebanon or to proceed by way of power of attorney on his behalf in Lebanon in any proceeding involving an action against [the plaintiff]; and that he personally will not cooperate with any further prosecution, nor will he appear in court or elsewhere in Lebanon for the purpose of prosecuting any matter against [the plaintiff]. And that’s to be addressed to his attorneys — the other one and remitted to [the defendant’s Connecticut attorney], who will have his client sign it and then it will be remitted — with a copy to the corut in Lebanon and a copy to this court.” The court then expressly found that the defendant was not in contempt. This appeal followed.

As a general matter, “[a]n appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion ... we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Danehy v. Danehy, 118 Conn. App. 29, 32, 982 A.2d 273 (2009); see also Williams v. Williams, 276 Conn. 491, 496-97, 886 A.2d 817 (2006).

This case, however, turns on the interpretation of the parties’ separation agreement. Our Supreme Court has instructed that interpretation of a separation agreement incorporated into a dissolution decree “is guided by the general principles governing the construction of contracts. ... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citation omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008); see also Isham v. Isham, 292 Conn. 170, 180-81, 972 A.2d 228 (2009y, Danehy v. Danehy, supra, 118 Conn. App. 33.

Our threshold determination, therefore, is to determine whether the relevant clause of the separation agreement is clear and unambiguous. See Isham v. Isham, supra, 292 Conn. 181. The handwritten sentence found in Section 14.1 (b) of the separation agreement states: “The [defendant] shall provide proof to the [plaintiff] through counsel within one week of the date he notifies his counsel to withdraw the pending lawsuit against the [plaintiff] in Lebanon.” We conclude that this sentence of the separation agreement, incorporated into the dissolution judgment, is clear and unambiguous. It requires the defendant to provide proof that he has notified his counsel to withdraw the pending lawsuit in Lebanon. Accordingly, our review is plenary. See Williams v. Williams, supra, 276 Conn. 497; see also Isham v. Isham, supra, 181 (where language in separation agreement is clear and unambiguous, contract must be given effect according to its terms and determination of intent of parties is question of law); Eckert v. Eckert, supra, 285 Conn. 692 (same); Dowd v. Dowd, 96 Conn. App. 75, 79, 899 A.2d 76 (same), cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).

Having determined the scope of our review, we now turn to the actions of the trial court. At the February 24,2011 hearing, the court stated: “All right then I guess we’re going to have to have the letter tell [the defendant’s] attorney to do whatever it takes to get the [the plaintiff] off of that count . . . and if it means it has to be withdrawn as to somebody else, do it. But whatever [the defendant] has to do to get the action terminated against [the plaintiff] is what his attorney is to do in Lebanon. I don’t care about a third party except if it requires that it be dropped against a third party in order to get [the plaintiff] off of it, then [the defendant] has to direct his attorney to do that.” At the March 3, 2011 hearing, the court added to its previous order and directed the plaintiffs lawyer to draft a letter for the defendant to sign that (1) instructed the defendant’s attorney in Lebanon to cease the proceedings there against the plaintiff or anyone with the plaintiff, (2) required the defendant to withdraw any authority of anyone to act as his proxy in such proceedings in Lebanon and (3) required the defendant to refrain from cooperating with any further prosecution or appear in court or elsewhere in Lebanon for the purpose of prosecuting any matter against the plaintiff.

The court imposed orders that went beyond the terms of the separation agreement of the parties. “It is horn-book law that courts do not rewrite contracts for parties.” Greenburg v. Greenburg, 26 Conn. App. 691, 598, 602 A.2d 1056 (1992). Put another way, “[a] court simply cannot disregard the words used by the parties or revise, add to, or create a new agreement.” (Internal quotation marks omitted.) Danehy v. Danehy, supra, 118 Conn. App. 33. In the present case, the agreement of the parties required only that the defendant instruct his attorney in Lebanon to withdraw the action there against the plaintiff. The additional obligations imposed by the court on the defendant appear to have been included to effectuate the withdrawal. However, as the court properly had noted, the plaintiff, under the terms of the agreement, was not entitled to a withdrawal but “to proof that [the defendant] has given unequivocal direction to his attorneys in Lebanon to withdraw the action.”

We conclude that the court should not have ordered the defendant to perform obligations outside the clear and unambiguous terms of the parties’ separation agreement. The separation agreement required only that the defendant provide notice to the plaintiff that he had instructed his attorney in Lebanon to withdraw the pending case there against the plaintiff. The additional obligations imposed by the court on the defendant constituted a modification of the parties’ separation agreement.

The judgment is reversed and the case is remanded with direction to vacate the postdissolution orders issued by the court.

In this opinion the other judges concurred.

       Following the dissolution of the marriage, the court restored the plaintiffs name to Eliana Kouchary.

       General Statutes § 46b-66 (a) provides in relevant part: “In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. . . .”

       The defendant had an e-mail sent to his attorney in Lebanon and attached a copy of the settlement agreement signed by the parties. The e-mail directed his attorney to review the handwritten note, and stated that the defendant would speak with the attorney at a later time.

       The defendant’s letter to his lawyer in Lebanon stated: “As you know in my dissolution of marriage decree Paragraph 14.1 b states [the defendant] shall provide proof to the [plaintiff] through counsel within one week of the date he notifies his counsel to withdraw the pending action against the [plaintiff] in Lebanon. The Court in Connecticut . . . desires more proof other than I have already forwarded to you that I have honored my commitment. Therefore, in accordance with the Court’s instructions, I withdraw the case against [the plaintiff].”

       The procedural posture of this case is that of a postdissolution motion for contempt. The court specifically stated that it did not find the defendant in contempt.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. TODD R. ROMANKO
    (AC 33357)
    Beach, Alvord and Pellegrino, Js.
    Argued September 28
    officially released December 18, 2012

      Jeanne M. Zulick, for the appellant (defendant).

      Robert O’Brien, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appel-lee (state).
   Opinion

PER CURIAM.

The defendant, Todd R. Romanko, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both in violation of General Statutes § 14-227a (a) (l). The defendant claims that (1) the court’s jury instructions (a) improperly enlarged the scope of the charge against him and (b) deprived him of his constitutional right to a unanimous verdict, and (2) the court violated his constitutional right to present a defense when it did not allow him to introduce certain demonstrative evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of August 14, 2009, after having consumed alcohol, the defendant wandered onto the back deck of a Burlington property owner’s residence. The defendant’s eyes were glossed over. When asked by the resident what he was doing on the deck, the defendant stated that he was looking for a person named Gerry and proceeded to enter the house, but left the house after the resident’s German Shepherd barked at him. The defendant then drove away in a motor vehicle. The property owner reported the incident to the police and provided a description of the defendant’s vehicle.

After receiving a report of the incident from the Burlington police department, Officer Stanley Murak of the Farmington police department stopped the defendant’s car after observing the vehicle swerving. Murak noticed that the defendant smelled of alcohol and that his speech was slurred. Murak gave the defendant three field sobriety tests: the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test. Murak arrested the defendant after he failed all three tests. When asked, the defendant told the officer that he had consumed one twelve ounce beer and that he took prescription anti-anxiety medication. Following a jury trial, the defendant was convicted of operating a motor vehicle while under the influence and sentenced to three years incarceration, execution suspended after one year, and three years probation. This appeal followed.

I

The defendant first claims that the court’s instructions that the jury could find him guilty under § 14-227a (a) (1) if it was found that he was under the influence of “alcohol or drugs or both” (a) improperly enlarged the scope of the charge against him when the state’s long form information had charged him with driving under the influence of “alcohol and drugs” and (b) deprived him of his constitutional right to a unanimous verdict. We agree with the state’s argument that the defendant waived these claims.

Our Supreme Court has held that “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). “In making these determinations, this court applies plenary review.” State v. Thomas W., 301 Conn. 724, 734, 22 A.3d 1242 (2011).

Defense counsel was given a written copy of the proposed jury instructions the night before the instructions were given, and the following morning the court reviewed the instructions with the prosecutor and defense counsel. The court asked if defense counsel had had a sufficient opportunity to review the instructions and if he had any suggestions or changes to the proposed jury instructions. Defense counsel twice responded that he did not have any changes or suggestions. We conclude that the defendant waived these claims and we decline to review them.

II

The defendant next claims that the court violated his constitutional right to present a defense when it did not allow him to introduce certain demonstrative evidence. We disagree.

The defendant testified that five years prior to his arrest, his knee was badly injured in a dirt bike accident and thus he was not able to perform properly some of the field sobriety tests. At this point, defense counsel requested that demonstrative evidence be presented. Outside the presence of the jury, defense counsel stated that he sought to have the defendant perform the “heel to toe” and “one leg stand” tests in front of the jury. The court denied the request to admit such evidence, reasoning that it would be inappropriate for the defendant to demonstrate what he thought occurred on the night in question. The court stated that it would give the defendant “every leeway” to describe the events through his testimony.

“The constitutional right to present a defense does not include the right to introduce any and all evidence claimed to support it. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. . . . Although exclusionary rules of evidence should not be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . The trial court retains the power to rule on the admissibility of evidence pursuant to traditional eviden-tiary standards.” (Citation omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 752 n.4, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). “[T]he question of the admissibility of the proffered evidence is one of evidentiary, but not constitutional, dimension.” Id., 753 n.4. “[T]he trial court has broad discretion in determining whether to admit or exclude demonstrative evidence.” Barry v. Quality Steel Products, Inc., 280 Conn. 1, 20, 905 A.2d 55 (2006).

The court did not abuse its discretion in ruling that such demonstrative evidence was unreliable. An in-court demonstration would not have reliably re-created how the defendant performed the tests on the night in question. See State v. Watson, 47 Conn. App. 794, 809-10, 707 A.2d 1278 (1998) (court did not permit defendant to give exemplar of his voice without testifying, reasoning that identifying attributes of voice can be altered and thus demonstration would have been of no value), aff'd, 251 Conn. 220, 740 A.2d 832 (1999). The court permitted such evidence through the defendant’s testimony.

The judgment is affirmed.

       General Statutes § 14-227a (a) (1) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle . . . while under the influence of intoxicating liquor or any drug or both . . . .”

       The defendant was also charged in the second part of the information with having two prior convictions for driving under the influence; the defendant pleaded guilty to this charge.

       On the day before the charge, the court stated to both counsel: “I have for you — I thought I had copies of my proposed charge. I may have left that in chambers, but I will deliver that to you before the end of the evening so that you may look it over tonight” The state represented in its brief that both counsel had an opportunity to review the final charge overnight and the defendant does not dispute that representation.

       The court never excluded relevant medical testimony, which apparently was not offered.


text:
    JOSE TRUJILLO v. ANGELO CHEKAS ET AL.
    (AC 33601)
    Lavine, Robinson and Sheldon, Js.

      Submitted on briefs September 17
    officially released December 18, 2012

      John K. McDonald filed a brief for the appellant (plaintiff).

      David A. Haught and Lorinda S. Coon filed a brief for the appellee (defendant state of Connecticut).
   Opinion

PER CURIAM.

The plaintiff, Jose Trujillo, appeals from the judgment of the trial court, rendered in favor of the defendant state of Connecticut. In this personal injury action, the plaintiff claims that the court abused its discretion by admitting into evidence the fact that the plaintiff had been compensated for lost wages in violation of the collateral source rale. See Baystate Moving Systems, Inc. v. Bowman, 24 Conn. App. 531, 533-34, 590 A.2d 462, cert. denied, 220 Conn. 904, 593 A.2d 969 (1991). We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On April 22, 2004, the plaintiff, then a state trooper, was injured when the cruiser he was operating collided with a vehicle operated by Angelo Chekas. The plaintiff was out of work for two years and then worked light duty for two more years, when he retired. He received more than $200,000 in workers’ compensation benefits for medical care, lost wages and permanent disability. In 2006, the plaintiff brought an action against the defendant for uninsured motorist benefits, alleging among other things that Chekas was negligent and uninsured.

A four day trial commenced in April, 2011. There was conflicting evidence as to how the accident occurred. At one point, defense counsel cross-examined the plaintiff as follows: “Let me ask it this way, Mr. Trujillo, and I think this will solve the problem. Am I correct that in 2004 and 2005 you were covered by alternate compensation systems?” The plaintiff objected, but the court overruled the objection. The plaintiff answered in the affirmative.

The jury returned a verdict in favor of the defendant. One jury interrogatory asked, “Do you fmd by a preponderance of the evidence that [the plaintiff] sustained injuries in the accident proximately caused by the negligence of Angelo Chekas?” The jury answered, “No.” The court denied the plaintiff’s motion to set aside the verdict and for a new trial. This appeal followed.

The plaintiff claims that the court abused it discretion when it permitted the defendant to ask the plaintiff whether he was “covered by alternate compensation systems . . . .” Assuming without deciding that the court abused its discretion in permitting the defendant to question the plaintiff about collateral sources, we conclude that any potential error was harmless. “[A] trial court’s evidentiary ruling is reviewed under the abuse of discretion standard. . . . Simply because the trial court may have abused its discretion in admitting evidence . . . does not answer the question of whether the impropriety requires reversal of the [verdict]. . . . [W]hen an improper evidentiary ruling is not constitutional in nature, [the injured party] bears the burden of demonstrating that the error was harmful. ... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. George J., 280 Conn. 551, 601-602, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).

The jury found that the plaintiff had failed to carry his burden of establishing the threshold question of causation, which was contested at trial. The challenged testimony goes only to damages, not causation. As the trial court noted, we cannot “ignore the fact that the jury may have concluded that the testimony of . . . Chekas . . . was credible and . . . may have concluded that the testimony of [the plaintiff] . . . was not credible.” “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005). Because we have “a fair assurance that the error did not substantially affect the verdict” (internal quotation marks omitted); State v. George J., supra, 280 Conn. 602; we conclude that any error was harmless.

The judgment is affirmed.

       Angelo Chekas, Rodney Harvey, Twin City Fire Insurance Company and Hartford Fire Insurance Company were also named as defendants but are not parties to this appeal. Any reference in this opinion to the defendant is to the state of Connecticut.

       Ordinarily, it is improper to reveal to the jury the existence of collateral sources of compensation for injuries. See Madsen v. Gates, 85 Conn. App. 383, 388, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). Pursuant to General Statutes § 52-225a, that evidence is to be considered by the court only after the trier finds liability and awards damages.

       The plaintiff claims that the jury found against him on causation because the testimony “tainted the jury’s perception of the plaintiff.” We are not persuaded. The court instructed the jury on the issue of causation, and absent evidence to the contrary, this court assumes that the jury followed those instructions. Kronovitter v. Doyle, 135 Conn. App. 157, 167 n.17, 41 A.3d 1108 (2012).


text:
    JOSEPH E. BROWN v. MCCUE MORTGAGE COMPANY ET AL.
    (AC 34022)
    DiPentima, C. J., and Beach and Robinson, Js.
    Submitted on briefs September 24
    officially released December 18, 2012

      Joseph E. Brown, pro se, the appellant (plaintiff), filed a brief.

      Kevin J. Bums filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The self-represented plaintiff, Joseph E. Brown, appeals from the judgment of the trial court dismissing his complaint seeking declaratory relief, injunctive relief and an accounting as to a piece of real property located at 108 South Main Street in Brooklyn (property). The defendants, McCue Mortgage Company (McCue) and Connecticut Housing Finance Authority (authority), hold the first and second mortgages, respectively, on the property. On appeal, the plaintiff raises a number of claims. The plaintiff, however, failed to raise or to brief the issue on which the case was dismissed by the trial court, and therefore we decline to review the issues raised in his appeal. We therefore dismiss the appeal.

Because we dispose of this appeal on reviewability grounds, we provide only a brief factual background and procedural history. In November, 1996, the plaintiff contracted for the sale of the property and entered into a mortgage agreement with McCue. In April, 2007, the plaintiff successfully completed a loan modification with the authority. Although McCue and the authority worked with the plaintiff on a temporary loss mitigation plan and the plaintiff paid $5115 to McCue in August, 2009, neither McCue nor the authority received any funds from the plaintiff thereafter.

The authority, as the second mortgagee, commenced a foreclosure action against the plaintiff on April 30, 2010, Summary judgment as to liability was granted in favor of the authority on August 3, 2010, and after foreclosure mediation was terminated on March 24, 2011, the authority filed a motion for strict foreclosure. The plaintiff did not interpose any defense to the amount owed, and on July 21, 2011, the court rendered a judgment of foreclosure by sale. On August 8, 2011, the plaintiff filed the complaint underlying this action. On August 23, 2011, the defendants filed a motion to dismiss the complaint, arguing that because of the foreclosure action, this action could not proceed under the prior pending action doctrine. Following the plaintiffs timely objection, the court granted the defendants’ motion to dismiss on October 24, 2011. The plaintiff filed a motion asking the court to articulate the basis of the court’s dismissal of his action, and the court granted the motion, citing the prior pending action doctrine as its ground for dismissal. This appeal followed.

The plaintiff presents a myriad of claims on appeal. As noted by the defendants, however, the plaintiff did not raise or brief the grounds of the court’s dismissal. Because the plaintiff does not challenge the basis of the court’s dismissal, we decline to reach the issues he does brief.

“[Appellate] practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that [the court] can have the full benefit of that written argument.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 394 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

Here, the plaintiff has failed to challenge the basis of the court’s dismissal of his action under the prior pending action doctrine. “[W]here alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the [appellant].” Green v. Yankee Gas Corp., 120 Conn. App. 804, 805, 993 A.2d 982 (2010). “[I]t is not the province of an appellate court to decide moot issues disconnected from the granting of actual relief.” Id., 806; see also Lyon v. Jones, 291 Conn. 384, 394-95, 968 A.2d 416 (2009) (holding that Appellate Court improperly considered merits of claims brought where there was independent basis for upholding summary judgment rendering claims raised by appellant moot).

Because there are unchallenged grounds to support the court’s dismissal, this court can grant no practical relief to the plaintiff on the claims he does raise.

The appeal is dismissed.

       “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655-56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003).

       The plaintiff claims that (1) the court, Riley, J., incorrectly proceeded to hear this case in the Willimantic courthouse, (2) the defendants’ attorney, Kevin Bums, violated an Appellate Court stay in proceeding with the case in Willimantic, (3) Judge Riley should have recused himself from the case after deciding a motion to terminate stay in a separate, ongoing case involving both the plaintiff and the authority, (4) the court should have issued a memorandum of decision on the abrogation of the plaintiffs state and federal rights and (5) the Truth in Lending Act, 15 U.S.C. § 1601 et seq., was violated and warranted further investigation and/or a temporary restraining order.

       Additionally, as to the plaintiffs second and third claims — that the defendants’ attorney, Kevin Bums, violated an appellate stay in proceeding with the present action and that Judge Riley should have recused himself from the present action — we note that these issues are not adequately briefed nor has the plaintif provided an adequate record. We do not review such claims. See Practice Book § 61-10; Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).


text:
    PHH MORTGAGE CORPORATION v. PASCAL H. JEAN-JACQUES ET AL.
    (AC 33965)
    Beach, Alvord and Bear, Js.
    Submitted on briefs September 17
    officially released December 18, 2012

      John R. Williams filed a brief for the appellants (named defendant et al.).

      Jeffrey M. Knickerbocker filed a brief for the appel-lee (plaintiff).
   Opinion

PER CURIAM.

The defendants Pascal H. Jean-Jacques and Mireille Jean-Jacques appeal from the trial court’s denial of their motion to open a foreclosure judgment. We affirm the judgment of the trial court.

The plaintiff, PHH Mortgage Corporation, is the holder of a mortgage on real property owned by the defendants in Fairfield. On June 7, 2010, the plaintiff commenced a foreclosure action against the then self-represented defendants, who had defaulted on their mortgage payments. On November 29,2010, the plaintiff filed a motion for default for the defendants’ failure to file a responsive pleading, which motion was granted by the trial court clerk on December 16, 2010. The plaintiff then moved for a judgment of strict foreclosure. This motion was claimed by the plaintiff on June 15, 2011, and was placed on the court’s short calendar for argument on July 5, 2011. The plaintiff marked the motion “ready,” and the defendants received notice of the hearing from the court and from the plaintiff.

On July 6, 2011, the defendants failed to appear for argument on the motion and a default judgment of foreclosure by sale was entered. The sale date was set for October 8,2011. On September 12,2011, the defendants, then represented by counsel, filed an amended motion to open the judgment. The defendants attributed their failure to appear at the July 6 hearing to a second short calendar reclaim on the same motion, filed by the plaintiff on June 27, 2011. The defendants received notice from the court of a July 18 hearing, which corresponded with the second reclaim, and allegedly assumed that this later hearing indicated the plaintiffs intention to postpone the July 5 hearing. The defendants additionally argued that the practice of filing a second reclaim on the same motion had the effect of “marking off’ the earlier hearing.

The court heard argument on the motion to open on October 3 and 4, 2011, and then denied the motion. The court found that the defendants had received notice of the hearing from the court and from the plaintiff, and it held that the existence of a second hearing date did not excuse the defendants from appearing on July 5. This appeal followed.

On appeal, the defendants claim that the court abused its discretion in denying the motion to open the judgment of foreclosure. The plaintiff counters that the defendants failed to present any evidence that would excuse the default, and, moreover, that they failed to proffer a colorable defense to the foreclosure action. We agree with the plaintiff.

“Where a trial court has the power to open a judgment, its action represents an exercise of discretion, and that court’s decision will not be disturbed on appeal unless the court acted unreasonably and in clear abuse of its discretion. . . . The denial of a motion to open a judgment should not be held to be an abuse of discretion in any case in which it appears that the moving party has not been prevented by mistake, accident or other reasonable cause from making a defense.” (Citation omitted; internal quotation marks omitted.) Fontaine v. Thomas, 51 Conn. App. 77, 82-83, 720 A.2d 264 (1998); see also General Statutes § 52-212; Practice Book § 17-43.

“A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority.” (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). Moreover, it is axiomatic that “[n]egligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence.” Id.

Here, it is undisputed that the defendants received notice of the hearing from two sources. The reasons offered for the defendants’ failure to appear — that they misapprehended the effect of the second reclaim, or that the filing of the second reclaim operated to cancel the July 5 hearing — were properly rejected by the court. The defendants did not testify, or present affidavits or any other evidence that they were confused by the two notices. The only argument to this effect was presented by their attorney at the hearing on their motion to open the judgment, and it was based on the attorney’s position that, as a matter of practice, a second reclaim would “mark off’ any earlier hearing dates on the same motion. The defendant’s attorney presented no authority in support of this position. The defendant’s attorney proposed that the court at least had the discretion to grant the motion to open because of the potential for confusion sown by the two hearing dates.

Because of the defendants’ failure to testify and the unsupported arguments advanced regarding the effect of reclaiming the same motion more than one time, it was not unreasonable for the court to exercise its discretion and to deny the motion to open. See Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 241, 492 A.2d 159 (1985) (“[o]n a motion to open the moving party must not only ‘allege,’ but must also make a ‘showing’ sufficient to satisfy the requirements of § 52-212”).

The judgment is affirmed.

       People’s United Bank was also named as a defendant but is not a party to this appeal. We therefore refer in this opinion to Pascal H. Jean-Jacques and Mireille Jean-Jacques as the defendants.

       In their belated answer, the defendants included special defenses alleging that the plaintiff had no standing to commence the foreclosure action because it failed to allege in its amended complaint the date on which it came into possession of the note, and that it was not licensed to do business as a foreign corporation in Connecticut.