source: Caselaw Access Project

author: KELLER, J.

license: Public Domain

text:
    PAUL FINE v. COMMISSIONER OF CORRECTION
    (AC 34683)
    Sheldon, Keller and West, Js.
    Argued September 26—
    officially released December 17, 2013

      Rana Ofgang, assigned counsel, for the appellant (petitioner).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Marcia A. Pillsbury, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

KELLER, J.

Following a grant of certification to appeal pursuant to General Statutes § 52-470 (g), the petitioner, Paul Fine, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the court, in dismissing his petition, improperly concluded that he intentionally and knowingly withdrew a prior habeas petition with prejudice, thereby waiving his right to bring the present petition. We agree with the petitioner and reverse the judgment of the habeas court.

The record reveals the following relevant procedural history. On December 23, 2011, the petitioner, through counsel, filed an amended petition for a writ of habeas corpus. In part, he alleged therein that, on June 9,1992, pursuant to a plea agreement reached with the state, he was sentenced to a fifty year term of incarceration after pleading guilty to the crimes of murder and assault in the first degree. He alleged that, in a variety of ways, his trial counsel, Attorney Gail Heller and one or more successor attorneys, rendered ineffective assistance and that his guilty pleas were not knowing, intelligent or voluntary. Also, he alleged that, but for the inadequate representation of his trial counsel, he would not have entered the guilty pleas.

In his return, the respondent, the Commissioner of Correction, denied some of the petitioner’s allegations related to ineffective assistance of counsel and, as to others, left the petitioner to his proof. Additionally, the respondent alleged in relevant part that in a prior habeas petition filed in the judicial district of Danbury in 1997, the petitioner, represented by Attorney Vicki Hutchinson, had raised a claim of ineffective assistance of trial counsel under docket number CV-96-0325409-S. The respondent alleged: “That [the prior] habeas matter was scheduled for trial on May 4,1998, before the Honorable Judge [Dale W.] Radcliffe. On that date, the petition was withdrawn with prejudice.” (Emphasis in original.) The respondent raised a special defense of “waiver,” and asserted that the petitioner, by withdrawing his prior habeas petition with prejudice in 1998, was precluded from raising a claim of ineffective assistance of trial counsel in the present petition. In reply to the special defense raised in the return, the petitioner left the respondent to his proof.

Thereafter, pursuant to Practice Book § 23-29 (5), the respondent filed a motion to dismiss the petition on the ground that the petitioner withdrew the prior petition with prejudice on May 4,1998. In his memorandum of law in support of the motion, the respondent asserted that the petitioner, by withdrawing the prior petition with prejudice, waived his right to advance the claim raised in the present petition. Also, the respondent argued that the petitioner’s conduct constituted “abuse of the writ.” Finally, the respondent asserted an argument grounded in the concept of “deliberate bypass.” In this regard, the respondent argued that the petitioner had a full and fair opportunity to litigate the claim raised in the present petition, but that he forfeited his right to advance such claim because he voluntarily chose to withdraw his prior petition with prejudice at a time when the respondent was prepared to defend against the claim. The petitioner objected to the motion.

On April 25, 2012, the court held an evidentiary hearing on the motion to dismiss. By way of exhibits, the court had before it transcripts from court proceedings in 1992 related to the petitioner’s criminal charges, a copy of the petitioner’s prior revised amended petition for a writ of habeas corpus filed on July 16, 1997, and a copy of a withdrawal, dated May 4, 1998, filed in connection with that earlier petition. The court heard testimony from John Gravalec-Pannone who, in his capacity as an assistant state’s attorney, represented the state in connection with the petitioner’s underlying criminal trial and represented the respondent in connection with the petitioner’s prior habeas petition. The court also heard testimony from the petitioner. After hearing argument from counsel, the court rendered an oral decision in which it granted the respondent’s motion to dismiss.

In its decision, the court observed that the present petition and the prior petition, both alleging ineffective assistance of trial counsel, were “virtually identical,” and that the petitioner had conceded that this was accurate. The court found that on May 4,1998, the petitioner “intentionally and knowingly” withdrew his prior petition with prejudice. The court observed that, although there was no transcript admitted into evidence reflecting what occurred in connection with the withdrawal on May 4, 1998, there was evidence about the proceeding, including the fact that the petitioner had raised a motion to replace his counsel and that, following questioning of the petitioner by the court, the petitioner withdrew the petition. The court found the testimony of Gravalec-Pannone to be credible with regard to the events at issue, namely, that the petitioner was questioned by Judge Radcliffe and that he withdrew his petition with prejudice. For his part, the petitioner testified, in essence, that he merely had followed the instructions of his attorney, Hutchinson, in connection with the withdrawal, but the court found that such testimony was not credible and only supported the conclusion that the petitioner later may have regretted his decision to withdraw the petition. Deeming the petitioner’s actions to be a form of “deliberate bypass,” the court granted the motion to dismiss. This appeal followed the habeas court’s grant of certification to appeal.

“The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support' in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

On appeal, the petitioner argues that the court’s finding that he intentionally and knowingly withdrew his prior petition with prejudice was clearly erroneous. Also, the petitioner argues that (1) the fact that he withdrew the prior petition before the commencement of a hearing on its merits did not bar the court from considering the merits of the present petition, (2) the doctrine of res judicata does not apply because the claim in his prior petition was not actually litigated, and (3) the present case does not implicate the deliberate bypass doctrine because the sole claim raised in the prior and present petitions was based on ineffective assistance of trial counsel.

It is necessary that we accurately characterize the basis of the court’s dismissal. As set forth previously, the habeas court based its decision on a critical factual determination, namely, that the petitioner intentionally and knowingly withdrew his prior petition with prejudice, thereby waiving his right thereafter to pursue the claim raised therein. Although the court reasoned that “[the petitioner’s] actions constitute deliberate bypass,” that doctrine does not apply to the case at hand, for it historically has arisen in the context of habeas petitions involving claims procedurally defaulted at trial and on appeal. See Crawford v. Commissioner of Correction, 294 Conn. 165, 186, 982 A.2d 620 (2009) (observing that since Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 [1993], our Supreme Court “consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions”). Here, the respondent invoked the doctrine of deliberate bypass insofar as he argued that the petitioner, by his conduct related to the prior habeas proceeding, voluntarily “ ‘forfeited’ his right to have a hearing on the merits and, thus, forfeited his right to prosecute these claims.” In light of the arguments advanced before the habeas court and the court’s fleeting reference to “deliberate bypass” in its memorandum of decision, we interpret the court’s decision to be based generally on the respondent’s central argument that, in connection with the prior habeas petition, the petitioner validly waived his right to raise the ineffective assistance of counsel claim in the present petition.

In evaluating the propriety of the court’s finding, that an intentional and knowing waiver occurred, we are mindful that “[t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed [on appeal] unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . Thus, the court’s factual findings are entitled to great weight. . . . Furthermore, [a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 741-42, 937 A.2d 656 (2007).

The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus “holds an honored position in our jurisprudence.” Engle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). “The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. . . . The writ has been described as a unique and extraordinary legal remedy.” (Citation omitted; internal quotation marks omitted.) Joyce v. Commissioner of Correction, 129 Conn. App. 37, 39, 19 A.3d 204 (2011). “It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939).

“It is well settled . . . that a criminal defendant may waive rights guaranteed to him under the constitution .... [W]aiver is the intentional relinquishment or abandonment of a known right . . . and [t]here is a presumption against the waiver of constitutional rights . . . .” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 129 Conn. App. 619, 629, 22 A.3d 636, cert. denied, 302 Conn. 922, 28 A.3d 342 (2011). “Relevant cases instruct that [a] defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In [State v.] Patterson, [230 Conn. 385, 396, 645 A.2d 535 (1994)], our Supreme Court stated that [i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied.” (Internal quotation marks omitted.) State v. Crawley, 138 Conn. App. 124, 132, 50 A.3d 349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012).

The legal right at issue in the present case is the right of the petitioner, once properly convicted and sentenced to a term of incarceration, to petition for a writ of habeas corpus as a means of challenging the fairness of his conviction and, therefore, the very legality of it. Habeas corpus proceedings are civil proceedings; Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); not criminal prosecutions. See Summerville v. Warden, 229 Conn. 397, 422-24, 641 A.2d 1356 (1994) (“It is undoubtedly true that [a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial. Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. . . . Any other conclusion would be inconsistent with the fact that our habeas corpus jurisprudence places a heavy burden on the petitioner to establish that, notwithstanding his conviction, he is entitled to a new. trial.” [Citations omitted; internal quotation marks omitted.]). Yet, “[although habeas corpus proceedings are civil in nature, they are unique in that they involve the petitioner’s liberty and the amount of time the petitioner will be incarcerated.” Zollo v. Commissioner of Correction, 133 Conn. App. 266, 293, 35 A.3d 337 (Lavery, J., concurring in part and dissenting in part), cert. granted on other grounds, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013).

Accordingly, we view the right to petition for a writ of habeas corpus, as a means of challenging the legality of a conviction, as being no less constitutionally significant than the right of a defendant to bring a direct appeal, as a means of challenging a judgment of conviction. “Generally, ineffective assistance of counsel claims are not properly raised in a direct appeal, but, rather, by a petition for a new trial or a writ of habeas corpus, which provide an opportunity for the trial court to conduct an evidentiary hearing related to the claim of ineffective assistance. See, e.g., State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (‘a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal’ . . .), cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).” State v. Stocking, 131 Conn. App. 81, 87, 26 A.3d 117, cert. denied, 302 Conn. 940, 28 A.3d 993 (2011). Because the petitioner did not have a trial, his only means of raising a claim of ineffective assistance of counsel is by means of a petition for a writ of habeas corpus.

It is well recognized that a valid waiver of the right to appeal from a criminal conviction must be supported by a showing that a defendant knowingly, voluntarily, and intelligently waived such right. “Since a decision to waive one’s statutory right to appeal cannot be said to be knowingly, voluntarily and intelligently made if based upon a misapprehension as to the effect of this action . . . prior to the acceptance of an agreement to waive an appeal pursuant to a plea bargaining arrangement, care should be taken to inform the accused of the appellate rights to which he is entitled and to the consequences of this decision. . . . Before a defendant can be held to have waived his right to appeal a separate conviction, the record, therefore, must affirmatively disclose that the defendant was apprised of the possible merits of an appeal.” (Citation omitted; internal quotation marks omitted.) Molinas v. Commissioner of Correction, 231 Conn. 514, 523-24, 652 A.2d 481 (1994); see also Tyson v. Warden, 24 Conn. App. 729, 733, 591 A.2d 817 (to demonstrate that petitioner deliberately bypassed exercise of his right to direct appeal “the record before us must disclose some reasonable basis for concluding that a convicted person has intelligently, understandingly and voluntarily waived his statutory right to appeal” [internal quotation marks omitted]), cert. denied, 220 Conn. 909, 597 A.2d 340 (1991); Smith v. Robinson, 8 Conn. App. 459, 461, 513 A.2d 187 (1986) (“Connecticut stands with [t]he numerical majority of courts which have considered the question [whether a criminal defendant may waive the right to appeal in exchange for a favorable sentence or sentences and which] hold that, if knowing and voluntary, a waiver of appeal by the defendant in a criminal case is valid” [internal quotation marks omitted]). Similarly, in fight of the magnitude of the right at issue in the present case, we will not merely presume a waiver of it on the basis of a silent record, but will give effect to a waiver only after ensuring that it has been clearly expressed on the record, and that it is knowing, intelligent, and voluntary.

We carefully have reviewed all of the evidence presented to the court. Among the relevant evidence, Gra-valec-Pannone testified in part that he did not have any doubt that, at the proceeding on May 4, 1998, the petitioner withdrew his prior petition with prejudice and that his handwritten notes concerning the proceeding that day reflected the same. Further, Gravalec-Pan-none testified that, at the hearing on May 4, 1998, the court questioned the petitioner concerning his decision to proceed with Hutchinson’s representation, after having moved for replacement counsel, as well as the “the consequences of the withdrawal of the petition.” At the hearing concerning the present petition, the following colloquy between the petitioner’s attorney and Grava-lec-Pannone concerning the withdrawal of the prior petition occurred:

“Q. But do you recall Judge Radcliffe questioning [the petitioner] about why he wanted to withdraw the petition?
“A. I recall him asking did he understand that by withdrawing the petition he was not going to have his trial there; that [his trial counsel] was there, the state was ready to proceed; that withdrawing it with prejudice means . . . did he understand what that all meant. I remember him asking that series of questions to [the petitioner]; that it wasn’t a question of the matter being continued because no one was available. Everybody was there ready to go.
“Q. And do you recall [the petitioner] objecting in any way to not having a trial?
“A. No.”

During the petitioner’s testimony before the court in the present case, he recalled that, on May 4,1998, Judge Radcliffe asked him whether he wanted to withdraw his prior petition and that, following Hutchinson’s lead, he nodded in agreement. He was unable to recall whether Judge Radcliffe informed him that the withdrawal was “with prejudice” or about the significance of that term. Additionally, he testified that he did not learn the significance of a withdrawal with prejudice until after the hearing. The petitioner testified that he did not actually want to withdraw the petition at the hearing before Judge Radcliffe.

As the court observed in its memorandum of decision, the respondent did not introduce a transcript of the proceedings before Judge Radcliffe on May 4,1998. The court file related to the prior petition was not before the court. Likewise, Hutchinson was not called as a witness in the present proceeding. The respondent’s exhibit F, a copy of the withdrawal form filed on May 4, 1998, does not indicate that a withdrawal with prejudice occurred. Boxes on the judicial branch withdrawal form, signed by the petitioner and Hutchinson, are checked to indicate that the dispute had been resolved by the discussion of the parties and merely that “THE PLAINTIFF’S ACTION IS WITHDRAWN AS TO ALL DEFENDANTS WITHOUT COSTS TO ANY PARTY.”

It is not in dispute that the petitioner withdrew his prior petition. Neither party asserted that the court imposed any sanction on the petitioner that precluded him from bringing any related petitions thereafter. Based on our review of the relevant evidence, the record does not support a finding that the petitioner knowingly, voluntarily and intelligently waived his right to bring any habeas petition related to the ineffective assistance of his trial counsel. Specifically, to prove a waiver of the petitioner’s right to assert his claim in a subsequent habeas petition, the respondent would have had to have made an affirmative showing that, at the time of the withdrawal, the petitioner was apprised of and understood the right being waived and the consequences of his waiver. Such a showing has not been made.

The respondent, as the party moving for a dismissal of the present petition, has failed to make a showing that a valid, enforceable waiver of the petitioner’s right to petition for a writ of habeas corpus occurred in connection with the prior petition. For these reasons, we disagree with and reverse the habeas court’s judgment of dismissal.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Subsequently, the court filed a signed transcript of its decision in accordance with Practice Book § 64-1 (a).

       In so holding, we see no need to foreclose the possibility that, prior to trial, a petitioner may withdraw a habeas petition with prejudice, perhaps after having reached a mutually satisfactory agreement with the respondent.


author: KELLER, J. LAVINE, J.,

text:
    ARMAND CUOZZO v. TOWN OF ORANGE
    (AC 34918)
    Lavine, Beach and Keller, Js.

      Argued September 20—
    officially released December 17, 2013

      Karen E. Souza, with whom, on the brief, was Steven L. Rubin, for the appellant (plaintiff).

      Mark A. Perkins, with whom was Daniel Murtha, legal intern, for the appellee (named defendant).
   Opinion

KELLER, J.

The main issue in this appeal is whether the trial court properly dismissed a claim for lack of subject matter jurisdiction on the ground that the plaintiff failed to provide notice to a municipality in accordance with the municipal highway defect statute, General Statutes § 13a-149. The plaintiff, Armand Cuozzo, appeals from the judgment of the trial court dismissing his complaint against the defendant, the town of Orange. The plaintiff claims that the court improperly granted the defendant’s motion to dismiss. We agree with the plaintiff and reverse the judgment of the trial court.

By means of an amended revised complaint dated February 3, 2012, the plaintiff alleged that, at approximately 4:30 p.m. on July 31, 2008, he was a business invitee on certain property located at 2 Boston Post Road in Orange. The plaintiff alleged that, at all times relevant, said property was owned by and was “controlled, maintained, managed, operated and/or supervised” by the defendant, “its agents, servants and/or employees.” The property abutted Meloy Road, a public highway in Orange, and was connected to Meloy Road by “an entrance/exit driveway” that intersected Meloy Road. Said driveway “was controlled, maintained, managed, operated and/or supervised” by the defendant, “its agents, servants and/or employees.” Meloy Road intersected with Boston Post Road, another public highway.

Also, the plaintiff alleged that, at the date and time specified, he was operating a motor vehicle owned by him in a northerly direction on the driveway, at which time his motor vehicle came into contact with a dangerous and unsafe condition, namely, a pothole that was approximately two feet in diameter, which was situated approximately three feet from the driveway’s intersection with Meloy Road. This defective, dangerous and unsafe condition in the driveway existed for such a period of time prior to this event that the defendant should have known of its presence and remedied it. The collision led to personal injury and damages that were “caused by the negligence and carelessness of the defendant ... its agents, servants and/or employees” in that, among other things, they allowed and permitted the condition to exist, failed to take steps to remedy it, and failed to take reasonable measures to prevent motor vehicles from coming into contact with it. The plaintiff further alleged that, pursuant to General Statutes § 52-557n, the defendant was liable for his injuries and damages.

Thereafter, the defendant filed a motion to dismiss pursuant to Practice Book § 10-33 on the ground that the court lacked subject matter jurisdiction. Specifically, the defendant argued that the plaintiffs claim fell within the purview of the municipal highway defect statute, § 13a-149, and that the plaintiff failed to comply with the notice requirement of the statute. In support of its motion, the defendant submitted a memorandum of law as well as an affidavit of Pat O’Sullivan, the town clerk for the defendant. O’Sullivan averred, in relevant part, that the defendant had not been given notice of the present action until October 21, 2011, when it was served with the plaintiffs complaint, and well after the ninety day notice requirement set forth in § 13a-149. The defendant did not submit an affidavit that contained facts indicating that the typical and expected use of the driveway at issue rendered it open to the traveling public. Additionally, the defendant asserted that the action was not brought within the applicable statute of limitations.

By way of objection, the plaintiff submitted a memorandum of law in which he argued that the defendant’s claims were not a proper subject of a motion to dismiss. He asserted that the defendant failed to set forth a jurisdictional defect to justify the motion to dismiss, a claim that notice was insufficient under § 13a-149 was properly raised by means of a motion to strike, and any statute of limitations claim should be addressed in a motion for summary judgment. The plaintiff argued that, if the defendant’s claims were a proper subject of a motion to dismiss, the motion should be denied on its merits because the action did not fall within the purview of the highway, defect statute insofar as the accident did not occur on a public highway, but a private driveway. Also, addressing the defendant’s statute of limitations claim, the plaintiff argued that the action was timely under General Statutes § 52-593 because it was brought within the one year time limit codified therein. Attached to his memorandum of law in opposition to the defendant’s motion was the plaintiffs affidavit, in which he averred in relevant part that the collision involving the pothole occurred in “[a] private driveway that exclusively leads to the Wal-Mart Plaza, which includes Sam’s Club.”

Following a hearing related to the motion to dismiss, during which the court heard argument concerning the motion but was not presented with evidence, the court issued a memorandum of decision. Initially, the court concluded that the defendant’s claim concerning notice pursuant to § 13a-149 implicated subject matter jurisdiction and, therefore, was a proper subject of a motion to dismiss. Next, the court examined the allegations in the plaintiffs complaint as well as relevant principles of law. The court concluded: “In the present case, based on the plaintiffs own allegations, the driveway where the alleged accident occurred was on property owned by the defendant town, connecting a public road to another town owned property. Based on these claims, it is reasonable to anticipate that the public would make use of the driveway. As a matter of law, therefore, the facts alleged in the plaintiffs complaint amount to a highway defect, and necessarily invoke ... § 13a-149 as the exclusive remedy. Because the plaintiff failed to provide proper notice to the defendant within ninety days of the alleged accident, this court lacks subject matter jurisdiction over this action.” Accordingly, the court granted the motion to dismiss. Subsequently, the court denied the plaintiffs motion to reargue. This appeal followed.

Reiterating arguments that he raised before the trial court, the plaintiff claims that the court improperly determined that the defendant could raise its claim regarding § 13a-149 in a motion to dismiss. Also, the plaintiff claims that the court improperly determined that the claim fell within the ambit of § 13a-149 because the driveway at issue, although owned and maintained by the defendant, was not a public highway for purposes of the highway defect statute.

“The standard of review for a court’s decision on a motion to dismiss [under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

Having set forth our standard of review, we set forth the relevant statutory authority. Section 52-557n (a) (1) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. . . .”

Section 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”

I

First, we address the plaintiffs argument, raised here and before the trial court, that the court improperly considered the defendant’s claim of lack of notice under § 13a-149 in the context of a motion to dismiss. “[A] claim that a court lacks subject matter jurisdiction may be raised at any time during the proceedings . . . including on appeal . . . .” (Citation omitted; internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 704 n.9, 987 A.2d 348 (2010). Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . . .” This court unambiguously has recognized that “when the allegations of a complaint and other properly considered evidence bring a plaintiffs cause of action within the purview of § 13a-149, the failure to provide the notice required by the statute deprives the court of subject matter jurisdiction over the action.” Bagg v. Thompson, 114 Conn. App. 30, 41, 968 A.2d 468 (2009); see also Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001) (“As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident. ... In this case, it is undisputed that the plaintiff did not provide any written notice to the defendants within the requisite time period. Because he failed to comply with the notice requirements of § 13a-149, the trial court lacked subject matter jurisdiction over the action.” [Citations omitted; emphasis in original.]). “Even if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the highway defect statute, the plaintiffs exclusive remedy is § 13a-149. If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction.” Bellman v. West Hartford, 96 Conn. App. 387, 393-94, 900 A.2d 82 (2006).

In light of the aforementioned authorities, there is no merit to the plaintiffs assertion that the corut improperly considered the defendant’s claim concerning lack of notice under § 13a-149 in the context of a motion to dismiss. It does not control our analysis that the plaintiff deems his claim as one sounding in negligence, rather than under § 13a-149. In ruling on a motion to dismiss such as the one in the present case, it is for the court to examine the pleadings and the record and to determine the true nature of the claim at issue. See, e.g., Mahoney v. Lensink, 213 Conn. 548, 567-68, 569 A.2d 518 (1990) (complaint that does not specifically allege violation of statute nonetheless may contain allegations sufficient to invoke statute). Furthermore, we reject the plaintiffs assertion that lack of notice under § 13a-149 is akin to a “curable deficienc[y] in the pleadings” that should be raised by means of a motion to strike. By means of a motion to dismiss, a party properly may claim that one or more counts of a complaint fall ■within the ambit of the highway defect statute and that the court lacks jurisdiction over such count or counts because of a failure of notice under the statute. See, e.g., Ortiz v. The Metropolitan District, 139 Conn. App. 487, 490-91, 56 A.3d 952 (2012) (trial court properly granted motion to dismiss on ground of insufficient notice under § 13a-149); Bartlett v. Metropolitan District Commission, 125 Conn. App. 149, 163, 7 A.3d 414 (2010) (same); Rivera v. Meriden, 72 Conn. App. 766, 776, 806 A.2d 585 (2002) (same).

II

Next, we address the plaintiffs argument that the court improperly determined that the claim fell within the ambit of § 13a-149. The plaintiff urges us to conclude that the court improperly determined that the driveway on which the accident occurred was a. public highway for purposes of the statute. The plaintiff relies heavily on his uncontested averment that the driveway, although owned and maintained by the defendant, was “[a] private driveway that exclusively leads to the Wal-Mart Plaza, which includes Sam’s Club.” He argues that the driveway was for ingress and egress into a private shopping plaza and that “[i]t is not foreseeable that the public would use this driveway,” but that its use was restricted to licensees entering the plaza for a business propose. The plaintiff argues that the court placed too much emphasis on the fact that the alleged accident occurred on property owned by the defendant.

As framed by the arguments of the parties, the main issue before the court in ruling on the motion to dismiss was whether the accident occurred on a public highway for purposes of § 13a-149. “[A] highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel. ... If in the use of the traveled portion of the highway ... a condition exists which makes travel not reasonably safe for the public, the highway is defective.” (Citation omitted; internal quotation marks omitted.) Read v. Plymouth, 110 Conn. App. 657, 664, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

“According to General Statutes § 14-1 [40], a highway includes any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use .... Our Supreme Court has stated: The plain meaning of the word highway is [a] main road or thoroughfare; hence a road or way open to the use of the public. ... It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that every traveler has an equal right in it with every other traveler. . . . [T]he term highway is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.” (Citation omitted; internal quotation marks omitted.) Read v. Plymouth, supra, 110 Conn. App. 665. Certainly, the distinctive feature of a highway for which a claim may arise under § 13a-149 is that it is open to public use. Id. “For an area to be open to public use it does not have to be open to everybody all the time. . . . The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness' or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character.” (Citations omitted; internal quotation marks omitted.) State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988).

“The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective road or bridge and (2) the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair.” (Internal quotation marks omitted.) Novicki v. New Haven, 47 Conn. App. 734, 739-40, 709 A.2d 2 (1998).

In the present case, there is no factual dispute that the pothole with which the plaintiffs motor vehicle came into contact was in a driveway that the defendant was bound to keep in repair. In determining whether an area that the state or a municipality is bound to keep in repair constitutes a public highway for purposes of § 13a-149 or its state highway counterpart, General Statutes § 13a-144, courts, on a case-by-case basis, have looked to a myriad of facts that are germane to an analysis of public use. “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . .” (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn. App. 394. Our Supreme Court has recognized that, “when the state either invites or reasonably should expect the public to use a particular area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the [state highway defect] statute.” (Emphasis added.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 504-505, 876 A.2d 1148 (2005). “[Defective conditions located near the roadway, but in areas unintended for travel, are not highway defects within the ambit of the highway defect statute.” Id., 504.

For example, in Serrano v. Burns, 248 Conn. 419, 429, 727 A.2d 1276 (1999), our Supreme Court, analyzing a claim brought under the state highway defect statute, § 13a-144, held that the existence of facts tending to demonstrate that highway travelers were invited to use a rest area that was adjacent to the traveled portion of a state highway gave rise to an issue of fact as to whether such an area “is so closely related to travel upon the highway that such an area is part of the state highway system.” In Baker v. Ives, 162 Conn. 295, 301, 294 A.2d 290 (1972), our Supreme Court, determining that a grass strip located between a state highway and a sidewalk was a public highway for purposes of the state highway defect statute, was influenced by the fact that “the area in question was used as a parking area for the convenience of people shopping at the stores along the road” and that the state, having erected signage, invited and encouraged members of the general public to park in the area. In Read v. Plymouth, supra, 110 Conn. App. 666, this court held that a plaintiff’s claim did not fall within the purview of § 13a-149 because there was no factual dispute that the municipal transfer station where the accident at issue occurred was restricted to town residents who had registered their vehicles with the town, was open during limited hours and, when closed, was restricted by means of a locked gate. In Novicki v. New Haven, supra, 47 Conn. App. 740, this court, determining that a sidewalk leading from a municipal street to a public school was a public highway for purposes of § 13a-149, concluded that it was reasonably anticipated that the public would make use of the sidewalk.

In Klein v. Norwalk, 499 F. Supp. 2d 113, 115-16 (D. Conn. 2007), an illustrative federal decision, the United States District Court for the District of Connecticut dismissed an action on the ground that it fell within the purview of § 13a-149, and the plaintiff failed to comply with the notice provisions of the statute. In its analysis, the court observed that the plaintiff admitted several relevant facts concerning the design and use of the area in which the plaintiff was injured, a municipal parking lot, all of which tended to demonstrate that it was “one in which pedestrians are expected and reasonably anticipated to traverse” and that “[the] area in question was open to the public, actually used by the public, and an incident to travel on the surrounding roadways and sidewalks.” Id., 116. In affirming the District Court’s judgment of dismissal, the United States Court of Appeals for the Second Circuit agreed that the undisputed facts, including that the municipality had invited the public to use the parking lot to facilitate travel to retail stores, attractions and other places of business, demonstrated that the area in question fell under the purview of § 13a-149. Klein v. Norwalk, 305 Fed. Appx. 745, 747-48 (2d Cir. 2009).

In determining that the plaintiffs claim fell within the purview of the highway defect statute, the trial court in the present case reasoned that, “the driveway where the alleged accident occurred was on property owned by the defendant town, connecting a public road to another town owned property. Based on these claims, it is reasonable to anticipate that the public would make use of the driveway.” As our case law reflects, however, the fact that the accident allegedly occurred on municipal property that is connected to a public road does not in and of itself support a conclusion that the accident site fell within the purview of § 13a-149. See Read v. Plymouth, supra, 110 Conn. App. 665-66 (holding that municipal property where accident occurred did not fall within purview of § 13a-149 in light of restrictions on access to property by general public).

We conclude that the facts, as alleged in the complaint and found in the affidavits submitted by the parties, are insufficient to support the necessary determination that the public would normally or reasonably be expected to make use of the “entrance/exit driveway” in the ordinary course of travel. Certainly, the plaintiff is bound by the facts alleged in his pleadings concerning the nature of the area in question. In evaluating the issue before the court in the present case, in which the material facts that were put before the court are not contested, we are limited to the pleadings, those facts necessarily implied from the pleadings, as well as the facts set forth in, the affidavits supporting the parties’ motion to dismiss and objection thereto. “The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); see also Bellman v. West Hartford, supra, 96 Conn. App. 393-94.

The plaintiff asserts that the municipally owned driveway at issue intersects with a municipal road and leads to retail stores. The pertinent materials submitted before the court do not disclose whether the defendant, bound to maintain the driveway, invited or reasonably expected that the public would use the driveway incident to travel, or whether the driveway was open for public travel generally. Importantly, the plaintiff, through his affidavit, averred that the accident occurred in “[a] private driveway that exclusively leads to the Wal-Mart plaza, which includes Sam’s Club.” As set forth previously in this opinion, a court properly may consider undisputed facts, submitted by way of supporting affidavits, that are relevant to the jurisdictional issue raised in a motion to dismiss. See Practice Book § 10-31. The fact that the driveway was private certainly was relevant to the issue of law before the court, namely, whether the accident occurred on a public highway. It supported a determination that the plaintiff properly invoked the court’s subject matter jurisdiction. Cf. Bellman v. West Hartford, supra, 96 Conn. App. 396 (court required to hold evidentiary hearing where facts as to whether area in question was open to public are in dispute).

Although common sense assumptions regarding certain retail outlets might appear to dictate that the driveway at issue, connecting a municipal highway to a shopping center on municipally owned property, typically is open for public travel generally, we must confine our analysis to the facts in the record and interpret them in the light most favorable to the plaintiffs cause of action. Here, the driveway leads to a shopping center with private retail outlets; it does not lead to a municipal building that one may reasonably anticipate is open to all, such as a town hall or a school. Nothing is known about the defendant’s agreement with these retail outlets regarding the use of the driveway or the parking area to which it leads. Not every driveway that leads to and from a shopping center welcomes all travelers; a myriad of restrictions of use may limit travel to certain persons, certain types of use or certain types of vehicles. There is a dearth of evidence concerning signage, lighting and road markings surrounding the driveway. The plaintiffs allegations reflect that he was present on the driveway as a business invitee, and nothing in the record before us suggests that the driveway was open for the unrestricted use of all public travelers generally. The defendant, as the party seeking dismissal, did not provide the court with facts supporting such a determination, and we will not presume that an area is a public highway absent a sufficient showing.

The facts in the record, viewed in the light most favorable to the plaintiff, do not support a determination that the driveway at issue has a public character such that it falls within the ambit of § 13a-149. Accordingly, we conclude that the court improperly dismissed the plaintiffs action against the defendant.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion BEACH, J., concurred.

LAVINE, J.,

dissenting. I disagree with the majority and conclude that the trial court properly dismissed the action filed by the plaintiff, Armand Cuozzo, for want of subject matter jurisdiction. Once subject matter jurisdiction is challenged, the plaintiff carries the burden of proving that it exists. See Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009) (“[i]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute” [internal quotation marks omitted]). In this case, sustaining this burden means that the plaintiff must demonstrate that either the municipal highway defect statute, General Statutes § 13a-149, does not apply or that the plaintiff has complied with its notice provisions.

On the basis of my review of the complaint, the motion to dismiss, and the accompanying affidavits, I conclude that the plaintiff has failed to demonstrate that the driveway in question is not public and that the highway defect statute does not apply. Pursuant to the plaintiffs own allegations, the driveway where the alleged incident occurred was on property owned, controlled, and maintained by the defendant, the town of Orange. As alleged, the driveway was situated on property that featured a number of retad stores, including a Sam’s Club, and connected the property to a public road. The plaintiff also alleged that the “[defendant] allowed and permitted individuals to operate motor vehicles upon said driveway although it knew, or reasonably should have known, of the existence of said defective, dangerous and unsafe condition . . . .” The only suggestion that the driveway is private in nature is the bare legal conclusion averred in the plaintiffs affidavit that “[t]his is the private driveway that exclusively leads to the Wal-Mart Plaza, which includes Sam’s Club.” This averment is a legal conclusion and cannot be relied upon. See Ganim v. Smith & Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98, 108 (2001) (“[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . [This] principle does not apply, however, to legal conclusions alleged.” [Citation omitted; internal quotation marks omitted.]).

Upon a motion to dismiss, it was incumbent upon the plaintiff to either establish compliance with § 13a-149 or to demonstrate how that statute is inapplicable. The plaintiff has not met this burden. It was reasonable for the trial court to infer that the driveway was open to the public and thereby fell into the ambit of the highway defect statute. See, e.g., Mahoney v. Lensink, 213 Conn. 548, 567-68, 569 A.2d 518 (1990) (complaint that does not specifically allege violation of statute nonetheless may contain allegations sufficient to invoke statute). As the plaintiff failed to provide notice to the defendant pursuant to § 13a-149, the trial court properly dismissed the plaintiffs action.

       The plaintiff brought the complaint pursuant to General Statutes § 52-593, alleging that he failed to obtain judgment in an earlier action by reason of his failure to name the correct party as the defendant. The plaintiffs operative, amended revised complaint was brought in two counts, one of which was brought against the town of Orange and the other of which was brought against the city of West Haven. The court’s judgment, granting the motion to dismiss filed by the town of Orange, is the subject of this appeal. The city of West Haven is not a party to this appeal. Accordingly, we refer to the town of Orange as the defendant in this opinion.

       The court did not address the defendant’s statute of limitations argument in rendering its judgment dismissing the complaint.

       As an aspect of this claim, the plaintiff also argues before this court that the trial court should have held an evidentiary hearing with regard to the issues raised in the motion to dismiss. Our review of the proceedings before the trial court, however, reflects that such an argument was not advanced before the trial court.

       The concept of what constitutes a “road or bridge” under §§ 13a-144 and 13a-149 has expanded over the years such that clarity is now somewhat lacking. Now, of course, a sidewalk adjacent to a road is a road, as are areas near a highway that the traveling public might be expected to use. See Serrano v. Burns, 248 Conn. 419, 429, 727 A.2d 1276 (1999); Ferreira v. Pringle, supra, 265 Conn. 357. Driveways and walkways to buildings sometimes are roads, depending on who maintains them and whether the public, without exclusion, reasonably can be expected to use them. Compare
        Novicki v. New Haven, supra, 47 Conn. App. 742, with Bellman v. West Hartford, supra, 96 Conn. App. 395-96; see also Read v. Plymouth, supra, 110 Conn. App. 666; but see General Statutes § 14-1 (40).
      It may be useful to stress the importance of travel. After all, a highway defect originally was “[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” Hewison v. New Haven, 34 Conn. 136, 142 (1867). Premises liability, although likely subject to governmental immunity, perhaps should govern situations where the claimed defect is owned by the municipality but exists at the traveler’s destination rather than in the course of the traveler’s journey.

       “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. ... An admission in pleading dispenses with proof, and is equivalent to proof.” (Citation omitted; internal quotation marks omitted.) BHP Land Services, LLC v. Seymour, 137 Conn. App. 165, 171 n.4, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).

       “Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issue as to a material fact exists. ... If a motion to dismiss turns on disputed issues of fact, an evidentiary hearing must be held to afford the parties an opportunity to present evidence and to cross-examine adverse witnesses.” (Citation omitted; internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 594 n.3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002).

       We observe that the record does not reflect that the pothole at issue was within the defendant’s right-of-way line in connection with Meloy Road, and the court did not malte such a determination. Either party, by reference to appropriate public records, could have attempted to demonstrate where the accident occurred in relation to the defendant’s right-of-way line, but neither party submitted evidence of this nature to the trial court.


author: GRUENDEL, J.

text:
    BRENT J. MORROW v. COMMISSIONER OF CORRECTION
    (AC 34244)
    Gruendel, Bear and Dupont, Js.

      Argued October 23—
    officially released December 17, 2013

      Mary Boehlert, assigned counsel, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were David S. Shepack, state’s attorney, and Terri L. Sonnemann, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Brent J. Morrow, 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 abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. We conclude that the court properly denied the petition for certification to appeal and, accordingly, dismiss the petitioner’s appeal.

The following factual and procedural history, as set forth by the court in its memorandum of decision, is relevant to the resolution of this appeal. “On November 10,2005, the petitioner, represented by Public Defender Christopher Cosgrove, entered a plea of guilty under the Alford doctrine ... to a charge of robbery in the first degree .... The state indicated that the agreed upon disposition was a sentence of seven years [imprisonment] suspended after time served, and five years of probation.

“The trial court, Gill, J., then canvassed the petitioner.” The court informed the petitioner that the maximum penalty for the crime for which he pleaded guilty was twenty years imprisonment. The petitioner agreed that he understood the nature of the crime and the possible penalties that he faced. After completing the canvass, the trial court accepted the plea.

“Thereafter, the court inquired whether counsel ‘wanted to be heard on bond,’ and a discussion on the record ensued. Cosgrove proposed that the court release the petitioner on a promise to appear subject to conditions that the petitioner live with his aunt, [that he] obey her house rules, ‘that he stay out of trouble,’ and that he appear for sentencing on January 20. Cos-grove then added: ‘He understands if he were not to do that, he could face an additional charge of failure to appear, and that his plea bargain that we worked out will be null and void.’ ”

After recital of several other conditions of release, the court stated: “Also, if he gets arrested for anything during this period of time with probable cause all deals are off,” to which the assistant state’s attorney added, “[a]nd he could be sentenced up to the maximum of the statute.” The court once again reiterated that “[the petitioner is] to understand if he gets in any trouble again, he can be arrested with probable cause, and he’s back in the yellow suit again and all deals are off. If he doesn’t show up for the sentencing, all deals are off.” Without further comment from the petitioner, the court then set sentencing for January 20, 2006.

Sentencing took place on May 5, 2006. At that time, the “state represented that, during the previous week, the petitioner had been arrested in Hamden on charges of robbery in the second degree, larceny in the sixth degree, and interfering with the police. The court responded that it had reviewed a police report and a typed witness statement, and that it found probable cause for the arrest. The state indicated that it had supplied copies of those documents to Cosgrove, and it entered the reports into the record as exhibits.

“The state next made sentencing remarks and requested a sentence of twenty years. Cosgrove then made a motion to withdraw the petitioner’s plea as follows: ‘First of all, I am aware of the most recent State Supreme Court case on this matter of these Garvin plea canvasses. [State v. Stevens, 278 Conn 1, 895 A.2d 771 (2006)] was just released this week, Your Honor, and I do appreciate the import of that. But I believe that, still at this point, it’s up to the court—the court has the discretion as to whether or not to proceed with a sentencing. I would ask the court to consider today to allow [the petitioner] to withdraw his plea and to proceed with this case, to increase his bond for sure but to—to withdraw his plea. And just a moment ago as we stood before you, [the petitioner] asked me to ask you for a continuance so that he could obtain private counsel for that purpose, Your Honor.’

“The state opposed the motion, and the court denied it without further comment. The court then heard sentencing remarks from Cosgrove and the petitioner. The court thereupon imposed a sentence of eight years to serve followed by four years of special parole. The petitioner, at Cosgrove’s request, received notice of his right to sentence review. There was no discussion of a right to appeal.”

On December 8, 2006, the petitioner filed a petition for a writ of habeas coipus and amended this petition on September 1,2010, setting forth one count of ineffective assistance of counsel against Cosgrove and a second count reciting a violation of due process under both the state and federal constitutions. The habeas court denied the petition for writ of habeas corpus on October 29, 2010. The court first noted that the petitioner was procedurally defaulted by not raising “either of the themes that he now presses ... he did not attempt to argue that there was no Garvin plea or Garvin violation.” It stated that the petitioner could overcome the defense of procedural default, however, if he could show that Cosgrove’s deficient performance was the cause of the default and that he was prejudiced by the deficient performance. The court thereafter concluded that the petitioner failed to prove both deficient performance and resultant prejudice, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner thereafter filed a petition for certification to appeal, which the court denied. This appeal followed.

The petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal and rejected his claim that his trial counsel rendered ineffective assistance. “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 ... in which 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.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). “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.” (Internal quotation marks omitted.) Id.

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Furthermore, [i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities." (Citation omitted; emphasis in original; internal quotation marks omitted.) Farnum v. Commissioner of Correction, supra, 118 Conn. App. 674-75. “[A] successful petitioner must satisfy both prongs . . . [and the] failure to satisfy either ... is fatal to a habeas petition.” (Internal quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn. App. 644, 650, 57 A.3d 399 (2012), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013).

We agree with the habeas court’s conclusion that the petitioner has failed to prove prejudice under Strickland. “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” (Internal quotation marks omitted.) Shelton v. Commissioner of Correction, 116 Conn. App. 867, 879, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). “[WJhether a'given defendant has made the requisite showing will turn on the facts of a particular case. . . . [E]vidence that there were nonfdvolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 10, 761 A.2d 740 (2000).

In his appellate brief, the petitioner argues that he was prejudiced because Cosgrove did not advise him of his appellate rights after the court denied his attempt to withdraw his plea. Although he claims this failure led to a denial of his due process rights, the petitioner has not cited any legal basis for such an appeal, nor did he testify as to any legal basis for an appeal at the habeas hearing. There is, therefore, no evidence to establish that the petitioner would have filed a timely appeal had he been advised to do so. The petitioner’s ineffective assistance of counsel claim thus fails. As a result, the habeas court did not abuse its discretion when it denied the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       There is no indication in the record as to why sentencing was delayed from January 20, 2006, to May 5, 2006. The petitioner has not raised this issue on appeal.

       See State v. Garvin, 242 Conn. 296, 300-302, 699 A.2d 921 (1997).


author: BEAR, J.

text:
    MARVIE E. BRYE v. STATE OF CONNECTICUT
    (AC 34408)
    Gruendel, Bear and Dupont, Js.

      Argued October 23—
    officially released December 17, 2013

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

      Jennifer S. Das, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (state).
   Opinion

BEAR, J.

The plaintiff, Marvie E. Brye, appeals from the judgment of the trial court rendered in favor of the defendant, the state of Connecticut, following a trial to the court of the plaintiffs negligence claim, which was based on a premises liability theory. On appeal, the plaintiff claims that the court erroneously found that: (1) he failed to prove that the state was in possession and control of the premises at the time the allegedly dangerous condition was created, and (2) he needed expert testimony to prove that the use of one-quarter inch thick plywood to cover a former theater stage lighting pit created a dangerous condition. Although we agree with the plaintiffs first claim, we, nonetheless, affirm the judgment of the trial court because the plaintiff failed to offer expert testimony that the use of one-quarter inch thick plywood to cover the lighting pit created a dangerous condition.

The following facts, as found by the trial court, and procedural history are relevant to our consideration of the plaintiffs claims. “This case arises out of a claim of personal injuries sustained by the plaintiff . . . while an inmate of the department of correction ([department]) at the J.B. Gates Correctional Institution (Gates facility) ... on May 9, 2002. During recreation time, [the plaintiff] was acting as a spotter for a fellow inmate who was using a weight lifting bench located on a gymnasium stage when he took a step backward (toward the front of the stage) and fell due to a portion of the floor collapsing, causing his right foot and leg to penetrate the floor by approximately eighteen inches, allegedly resulting in injuries to the plaintiff, including an alleged permanent disability to his back. The area of the stage where the fall occurred had been used as a lighting pit for theatrical performances when the facility was operated as a women’s prison sometime in the past. The pit had been covered with one-quarter inch thick plywood once the facility no longer housed female inmates. . . .

“On January 9, 2006, after receiving the permission of the Claims Commissioner to sue the [s]tate . . . pursuant to General Statutes § 4-160 et seq., the plaintiff commenced this negligence action seeking money damages from the [s]tate. In his amended complaint . . . the plaintiff allege[d] that, ‘at all times relevant herein,’ the Gates facility was under the authority of the department . . . which ‘is governed and controlled’ by the [s]tate. He further allege [d] that the occurrence resulting in his injuries on May 9, 2002, was the collapse of the floor, while he was lifting weights on the stage area in the gym facility. In paragraph #6, he attribute [d] that occurrence to the negligence and carelessness of the [sjtate . . . .” (Citation omitted; emphasis omitted; footnote omitted.) After a trial to the court, the court concluded that the plaintiff failed to prove that the state was in possession and control of the premises at the time the allegedly dangerous condition on the stage was created and that, even if the state had created the condition, the plaintiff failed to provide the necessary expert testimony to prove that the state’s use of one-quarter inch thick plywood to cover the lighting area of the stage floor created a dangerous condition. Accordingly, the court, rendered judgment in favor of the state. This appeal followed.

I

The plaintiff first claims that the court erroneously concluded that he had failed to prove that the state was in possession and control of the premises at the time the plywood was installed over the lighting pit. He argues that the state admitted in its answer that the Gates facility, at all times relevant, was under the authority of the department and that the department is a state agency. We agree.

The plaintiff argues that our standard of review is plenary because his claim concerns the interpretation of pleadings. The state argues that our standard of review is abuse of discretion because it concerns “[w]hat is the relevant time period for the placing of the plywood.” (Internal quotation marks omitted.) We agree with the plaintiff that plenary review of this claim is appropriate.

“Construction of the effect of pleadings is a question of law and, as such, our review is plenary. . . . Pleadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise. . . . [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial .... Accordingly, [t]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. . . . [The] admission in a pleading or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission .... It is axiomatic that the parties are bound by their pleadings.” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 476-77, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008) (concluding that by admitting plaintiff was lessor, defendant dispensed with need for plaintiff to prove that fact because admission was conclusive). “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. . . . Admissions, whether judicial or evidentiary, are concessions of fact, not concessions of law.” (Citations omitted; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 271, 941 A.2d 966 (2008).

In the plaintiffs operative complaint, he alleged in relevant part: “2. At all times relevant herein, the [Gates facility] is a Correctional Institution under the authority of the [department]. 3. At all times relevant herein, the [department] is governed and controlled by the [state] . . . .” In response to these allegations, the state specifically admitted the whole of paragraph two of the operative complaint and “[a]s to paragraph [three], the [state] admits that the [department] is a state agency within the executive branch of government of the State of Connecticut. The rest of and remainder of the allegations are denied.” We conclude, as a matter of law, that these are judicial admissions, which obviated the need for the plaintiff to produce evidence on this issue. The state admitted that “[a]t all times relevant herein” the Gates facility was under the authority of the department and that the department is a state agency. Such factual admissions are binding and conclusive on the state. See Borrelli v. Zoning Board of Appeals, supra, 106 Conn. App. 266, 271; see also Young v. Vlahos, supra, 103 Conn. App. 476. It is readily ascertainable that the relevant time period alleged in the complaint was from the installation of the plywood through the date of the accident. Accordingly, the court erroneously concluded that the plaintiff needed to produce evidence to prove these allegations.

II

The plaintiff next claims that the court “applied the wrong standard in determining that expert testimony was required, and then decided the ultimate issue on a broader scope than was actually alleged and proved at trial.” He argues that the court applied the wrong standard when it stated that it “ ‘must apply its own experience and its extremely limited knowledge of carpentry, structural concepts and engineering principles.’ ” He contends that “this is not the law on the requirement for expert testimony. The need for expert testimony is based on an average juror.” Further, he argues that “[t]he trial court held that the plaintiff had not proven that the use of the one-quarter inch thick plywood was a defect, relying upon the lack of expert testimony and the trial court’s ‘extremely limited knowledge of carpentry, structural concepts and engineering principles.’ This holding is error as the plaintiff did not present a claim [that] required ‘knowledge of carpentry, structural concepts and engineering principles.’ Rather, the plaintiffs case was based upon the simple claim that the use of quarter-inch plywood to cover a hole is a defect that the [state] itself created. . . . The case was no more complicated than that, and was certainly within the ordinary knowledge of a lay person.” The plaintiff also argues that the state and the court improperly expanded his claim of negligence and then determined that he needed to produce an expert to explain “the makeup of the structure that supported the plywood planks, the time of construction, the method of construction or the load capacity of the structure.” (Internal quotation marks omitted.) He argues that because he did not “claim that the structure underlying the plywood was the cause of his injuries, there was no need for such expert testimony.” He contends that the “only question in this case is whether the claimed affirmative act of negligence, the use of one-quarter inch thick plywood to cover a hole in an area where inmates walked and worked out, was a dangerous condition. Because the wisdom of using one-quarter inch thick plywood to cover a hole in a floor where inmates are going to be lifting weights is not beyond the ken of the reasonable person, there was no need for expert testimony . . . .” He continues: “What is most telling on this issue is the contemporaneous report by Lieutenant [Randy] Dossat [that] stated that: This pit area is covered with [one-quarter inch thick] plywood which cannot support the weight of an individual. . . . Indeed, the trial court itself stated that Dossat, who admitted to no expertise in construction . . . opined therein that the thickness of the plywood cannot support the weight of an individual.” (Citation omitted; internal quotation marks omitted.) Essentially, the plaintiff asserts that Dossat’s testimony demonstrates that a lay person, whom the court described as someone with “ ‘no expertise in construction,’ ” knew that one-quarter inch thick plywood could not “ ‘support the weight of an individual’ therefore, Dossat’s testimony clearly demonstrates that such knowledge is within the ken of an average juror, who also had no expertise in construction. Considering the whole of the plaintiffs argument, we conclude, as a matter of law, that even if the court expressed an improper standard when it stated that it “must apply its own experience and its extremely limited knowledge,” expert testimony was needed in this case because it is not within the ken of an average fact finder that the use of one-quarter inch plywood to cover the lighting pit would create a dangerous condition.

The parties, again, contest the appropriate standard of review. The plaintiff argues that the issue of whether expert testimony is required warrants a plenary standard of review. The state argues that the appropriate standard of review is abuse of discretion. We agree with the plaintiff that we must employ a plenary standard of review to determine whethér expert testimony was required in this case.

“The court’s determination of whether expert testimony was needed to support the plaintiffs claim of negligence against the defendant was a legal determination, and, thus, our review is plenary. ... In a negligence action . . . expert testimony will be required [i]f the determination of the standard of care requires knowledge that is beyond the experience of a normal fact finder . . . . The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard . . . .

“Nevertheless, [although expert testimony may be admissible in many instances, it is required only when the question involved goes beyond the field of the ordinary knowledge and experience of the trier of fact. . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters. . . . Rather, [j]urors [and courts] are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. “ (Citations omitted; footnotes altered; internal quotation marks omitted.) Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn. App. 448, 454-55, 998 A.2d 1228, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010).

In the present case, we conclude that the question of whether it was a breach of the standard of care and, therefore, negligent, for the state to use one-quarter inch thick plywood to cover the lighting pit involved a question that was beyond the field of the ordinary knowledge and experience of the average fact finder. See id., 455; see also Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 137, 907 A.2d 1220 (2006). The plaintiff argues in his brief that the only issue in this case is “whether one-quarter inch thick plywood will hold up a person’s weight when used to cover a hole . . . .” We, like the trial court, are not persuaded that the average fact finder knows the answer to that question.

Although Lieutenant Dossat opined that the former fighting pit area of the stage where the plaintiff had fallen through was not a safe area that could support the weight of an individual, this conclusion was reached after the plaintiffs accident. Dossat also testified that he had no idea the area was unsafe prior to the plaintiffs accident and that he regularly saw people jump off of and on to the stage using that area. He also stated that he did not know the load capacity of quarter-inch plywood. Another witness, David Wiencek, also a department employee, testified that he had walked on the area prior to the plaintiffs accident, that, at the time, he weighed 220-225 pounds and that, although there was a slight give to the area, he had no question in his mind about the safety of the area. Wiencek also testified that he had no idea what is the load capacity for one-quarter inch thick plywood.

On the basis of the evidence presented at trial, the court concluded, in relevant part, that expert testimony was necessary to determine whether the state breached the standard of care in installing one-quarter inch plywood over the fighting pit. We agree with this conclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the plaintiff on appeal relies only on an affirmative act of negligence for his premises liability claim. Previously, we have explained that in such cases, a plaintiff alleges that “ ‘the defendant’s conduct created the unsafe condition .... [Therefore], proof of notice is not necessary . . . because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.’ . . . Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002); see also Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 308-309, 696 A.2d 363 (1997); Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 301, 661 A.2d 110 (1995).” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). Our Supreme Court recently explained that our “analysis in Meek, which [the Supreme Court] adopted in Kelly v. Stop & Shop, Inc., [supra, 785-86], cited three cases for the proposition that, ‘when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.’ Meek v. Wal-Mart Stores, Inc., [supra, 474], Upon closer examination, each of those cases involved factual scenarios in which the defendant was on notice of a dangerous condition, through constructive notice, actual notice, or a foreseeably hazardous mode of operation, respectively. Rather than acting as an alternative to notice, the affirmative act rule allows an inference of notice when circumstantial evidence shows that the defendant knew or should have known of the dangerous condition because it was a foreseeably hazardous one that the defendant itself created.” DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 123-24, 49 A.3d 961 (2012).
      We also note that in the present case, the plaintiff did not allege, argue or prove that the installation of the quarter-inch thick plywood violated the state or local building code.

       Each of the multiple one-quarter inch thick sections of plywood used to cover the lighting pit was sixteen and one-half inches long and fourteen inches wide.

       We also recognize that “[t]here is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a [layperson]. . . . Thus, when the defendant’s performance constitute[s] such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, the plaintiff is not required to present expert testimony to establish the proper standard of professional skill and care.” (Internal quotation marks omitted.) Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn. App. 448, 454 n.6, 998 A.2d 1228, (2010), cert. denied, 298 Conn. 926, 5 A.3d 487 (2010). If the court concludes that expert testimony was not required in a case — the question involved did not go beyond the field of the ordinary knowledge and experience of the trier of fact—however, it need not apply this exception. See id.; see also Davis v. Margolis, 215 Conn. 408, 416 n.6, 576 A.2d 489 (1990) (“[t]he only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layperson” [internal quotation marks omitted]); Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 138, 907 A.2d 1220 (2006) (compensation adjuster's late filing of notice on behalf of plaintiff was such obvious and gross want of care and skill such that neglect was clear even to layperson).
      In the present case, the plaintiff claims that the question presented is within the field of the ordinary knowledge and experience of an average fact finder.

       The commentary to § 7-2 of the Connecticut Code of Evidence, regarding the admission of expert testimony, provides in relevant part: “[T]he expert witness’ testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. . . . Crucial to this inquiry is a determination that the scientific, technical or specialized knowledge upon which the expert’s testimony is based goes beyond the common knowledge and comprehension, i.e., ‘beyond the ken,’ of the average juror.” (Citations omitted.)