author: BISHOP, J.

text:
    MARVIN WOOTEN v. COMMISSIONER OF CORRECTION
    (AC 27575)
    Bishop, Gruendel and Pellegrino, Js.

      Argued October 9
    officially released December 11, 2007

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      Richard T. Biggar, assistant attorney general, with whom were Robin S. Schwartz, assistant state’s attorney, and, on the brief, Richard Blumenthal, attorney general, Jonathan C. Benedict and David I. Cohen, state’s attorneys, and Julia K. Conlin and Kelly A. Masi, assistant state’s attorneys, for the appellee (respondent).
   Opinion

BISHOP, J.

In the habeas court, the petitioner, Marvin Wooten, claimed that, in two underlying criminal matters, the state had violated his due process rights by its failure to honor the terms of a plea agreement and that the respondent, the commissioner of correction, had misapplied his presentence confinement and good time credits to his concurrent criminal sentences. After a hearing, the habeas court rejected the petitioner’s claims. The petitioner now appeals from the judgment of the habeas court, claiming that the court improperly concluded that (1) the state did not violate his due process rights by failing to honor a plea agreement and (2) the respondent properly applied his presentence confinement credits and, in doing so, violated neither his constitutional rights to equal protection, nor the prohibition against the imposition of ex post facto laws, or the separation of powers doctrine implicit in the state and federal constitutions. We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to our consideration of the petitioner’s appeal. The petitioner was taken into the custody of the respondent on September 7,1995, and charged in criminal informations stemming from two incidents occurring on different dates. They were assigned docket numbers CR950111031 (Stamford case) and CR95-0111033 (Bridgeport case). In the Stamford case, the petitioner was charged in connection with an incident that occurred on July 3, 1993. In the Bridgeport case, the petitioner was charged in connection with a September 24, 1993 incident. From the time of his arrest until his first sentencing, the petitioner remained in custody in lieu of posting bond.

On June 14, 1996, the petitioner pleaded guilty in the Bridgeport case to possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a). Subsequently, on July 26, 1996, the court sentenced the petitioner to a total effective term of eighteen years incarceration, execution suspended after ten years, and five years of probation with special conditions.

In the Stamford case, the petitioner pleaded guilty on November 22, 1996, to manslaughter in the second degree in violation of General Statutes § 53a-56 and attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a. On December 20, 1996, the petitioner was sentenced to a total effective term of twenty-five years incarceration, execution suspended after fifteen years, and five years of probation, to run concurrently with the Bridgeport sentence.

In sum, the petitioner was held in lieu of bond from the date of his arrest on September 7, 1995, until his sentencing on July 26, 1996, in the Bridgeport case. Thereafter, he became a sentenced inmate, a status he held on December 20, 1996, the date of his sentencing in the Stamford case. On the basis of the petitioner’s pretrial confinement from the date of his arrest, September 7,1995, until he became a sentenced inmate on July 26, 1996, the respondent credited the petitioner with a total of 323 days of presentence confinement credit and 107 days of presentence good time credit in accordance with the then applicable statutes. Although the respondent initially posted these credits to the petitioner’s time sheet applicable to the Bridgeport case, once the petitioner pleaded guilty in the Stamford case, the respondent transferred all of the petitioner’s presentence confinement credits to the second, or longer sentence, in accordance with its then existing policy. The practical effect of posting these credits to the longer sentence was that the posting resulted in an earlier anticipated release date. Later, on February 23,2005, the respondent removed these credits from the petitioner’s time sheet relating to his release date for the Stamford case and applied them to his anticipated release date for the Bridgeport case. As a consequence, because the Stamford case carries the longer sentence, the posting of the credits to the petitioner’s first and shorter Bridgeport sentence results in no advancement of his anticipated release date from incarceration after completion of both concurrent sentences.

On July 27, 2005, the petitioner filed an amended petition for a writ of habeas corpus containing the following allegations: that his due process rights were violated because the state failed to honor its plea agreement; that his equal protection rights were violated because he is being required to serve more time than someone who was able to post bond and because the respondent did not apply his presentence credit in the manner similar to that of other similarly situated inmates; that the respondent violated the separation of powers doctrine in interpreting judicial opinions; and, finally, that the manner in which the respondent applied the petitioner’s presentence credit violated the ex post facto and due process clauses of the state and federal constitutions.

At the habeas trial, Michelle Deveau, a records specialist for the respondent, testified that the removal of the petitioner’s presentence confinement and presentence good time credits from his Stamford sentence and the return of the presentence confinement credit to his Bridgeport sentence in February, 2005, with the resultant impact on the petitioner’s release date, was due to the Supreme Court’s decision in Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004). Deveau testified that the petitioner was sentenced in the Bridgeport case in July, 1996, and his presentence confinement credits were applied to that sentence upon sentencing. She indicated that, in accordance with the then existing policy of the respondent, the petitioner’s credits were subsequently moved to the Stamford case because it was the longer sentence. Deveau testified that in December, 2004, on the advice of the office of the attorney general, the respondent began reevaluating the posted anticipated release dates of inmates with the nearest discharge dates and adjusting inmates’ time sheets affected by Harris, which was released on November 30, 2004. Deveau stated that no person who already had been discharged before this recalculation was returned to the custody of the respondent as a result of a recalculation and that she did not know how many inmates had been released from their sentences prior to the recalculation of inmates’ release dates in accordance with the dictates of Harris. Deveau indicated that prior to Harris, it was the respondent’s policy to apply credits to an inmate’s longest sentence so that the credits would inure to the benefit of the inmate in shortening the total period of incarceration. She testified, however, that as a result of the respondent’s application of Harris and the attendant recalculation, which required that the credits be applied to the first sentence, the petitioner’s credits were transferred back to the Bridgeport case. She acknowledged that because the respondent believed that the underlying offense in the Bridgeport case occurred in 1995 and was, therefore, not eligible for good time credit, the petitioner was not given any good time credit for his presentence confinement between September 7, 1995, and July 26, 1996.

By memorandum of decision dated March 15, 2006, the court denied the petition for a writ of habeas corpus. In denying the petition, the court found that the petitioner did not present any evidence in support of his claim that he was induced by promises regarding jail credit when entering his plea deal, and, therefore, the court deemed that claim abandoned. The court similarly found that the petitioner failed to present any evidence as to his claim of an equal protection violation stemming from his inability to post bond or his violation of separation of powers claim and deemed those claims abandoned as well. As to the petitioner’s remaining equal protection claim, the court found that, in recalculating the petitioner’s presentence credit, the respondent was merely correcting an error to comply with statutory requirements as interpreted by the Supreme Court. The court also rejected the petitioner’s ex post facto claim on the basis that the petitioner did not receive any increased punishment by the respondent’s removal of jail credit that the petitioner was not entitled to receive. The court granted the petition for certification to appeal, and this appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the appropriate standard of review. “Although a habeas court’s findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 271 Conn. 817. Because the material facts are not in dispute and the issues before us present questions of law, our review is plenary. See id. With this standard in mind, we turn to the petitioner’s claims on appeal.

I

The petitioner first claims that he was deprived of his constitutional right to due process because the state failed to honor its plea agreement with him. Specifically, the petitioner argues that he was induced to plead guilty by the state’s promises that he would serve a total of fifteen years on both dockets and that the respondent, by not giving him credit for presentence confinement, has calculated his discharge date so as to hold him beyond that agreed on fifteen year term. The habeas court deemed the petitioner’s claim abandoned because the petitioner failed to present any evidence in support of his position. Having reviewed the record, including the transcripts of the plea and sentencing hearings, we agree with the court that the record is devoid of any evidence of an agreement between the petitioner and the state regarding presentence confinement credit. Accordingly, this claim fails.

II

The petitioner next claims that his constitutional right to equal protection was violated. The petitioner’s claim in this regard is threefold. The petitioner claims that he was denied equal protection because (1) his inability to post bond caused him to serve more time than someone who had the ability to post bond, (2) the respondent’s method of applying presentence confinement credit treats persons sentenced to concurrent terms on the same date differently from those persons sentenced to concurrent terms on different dates and (3) the respondent’s policy regarding the application of presentence confinement credits was not applied uniformly to all similarly situated inmates. We disagree.

The petitioner’s first two equal protection claims were rejected by our Supreme court in Harris v. Commissioner of Correction, supra, 271 Conn. 831-41. In analyzing those claims, the court determined that “because [presentence confinement] credit is not constitutionally mandated, it is not one of those few rights deemed so fundamental that the state cannot impinge upon it in the absence of a compelling reason.” (Internal quotation marks omitted.) Id., 833. The court went on to conclude that prisoners do not constitute a suspect class and that the “respondent’s method of crediting presentence confinement days when concurrent sentences are imposed on different dates serves the legitimate public purpose of ensuring that a convicted offender serves the full term of each criminal sentence imposed.” Id., 834. Following the analysis applied in Harris, we address the petitioner’s remaining equal protection claim.

The petitioner contends that the respondent’s policy regarding the application of presentence confinement credits, as it was changed in the wake of Harris, was not applied uniformly to all similarly situated inmates in that recalculations of presentence confinement credits were not done for all prisoners who were discharged from their sentences after the November 30, 2004 release date of that decision. The petitioner asserts that because there were inmates to whose sentences Harris applied, who were discharged after the November 30, 2004 release of Harris, but before the respondent implemented the new policy, the policy was not applied uniformly, and, therefore, his right to equal protection was violated.

At trial, Deveau testified that, as a result of Harris, the respondent had to change the jail credit policy, train counselors and records specialists and notify housing units and prison officials before they could actually begin implementing the new policy and recalculating the sentences. Deveau testified that that process took some time and that the respondent began reviewing sentences at the end of December, 2004. The petitioner was not singled out in this regard, and the respondent had reviewed the records of more than 5800 inmates as of the time of trial.

The habeas court concluded that the respondent has a statutory duty to correctly calculate and apply presentence confinement credits and that the correction of an error in the application of those credits is clearly a legitimate purpose. Because “[t]he equal protection clause does not require absolute equality or precisely equal advantages”; (internal quotation marks omitted) id., 834; we conclude that the fact that the respondent did not reincarcerate those inmates that were released before the recalculation policy was implemented did not constitute a violation of the petitioner’s constitutional right to equal protection.

The petitioner next claims that the removal of his presentence confinement credit from one sentence and the application of that credit to another sentence was an ex post facto violation in that he assumed that his presentence credit would shorten his fifteen year sentence, and the implementation of the new policy made it so that he was not receiving the benefit of that time. We are unpersuaded.

“The ex post facto prohibition forbids the Congress and the States to enact any law [that] imposes a punishment for an act [that] was not punishable at the time [that] it was committed; or imposes additional punishment to that then prescribed. ... To fall within the ex post facto prohibition, a law must be retrospective— that is, it must apply to events occurring before its enactment—and it must disadvantage the offender affected by it ... by altering the definition of criminal conduct or increasing the punishment for the crime . . . .” (Citation omitted; internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 195, 842 A.2d 567 (2004).

Here, the petitioner’s presentence confinement credits were applied to his initial sentence, which happened to be his shorter sentence, and his total effective sentence was, therefore, not shortened. However, the petitioner did not receive an increased punishment as a result of the respondent’s recalculation of his presentence confinement credits, nor did the recalculation result in a more severe punishment than the law in effect on the date of the underlying offenses warranted. Thus, the petitioner’s ex post facto claim is without merit.

The petitioner finally claims that the respondent violated the separation of powers doctrine. “[T]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands. . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch’s independence and performance of assigned powers. ... It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof. . . . [Thus] [t]he separation of powers doctrine serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power. . . . Nevertheless, we are mindful that the branches of government frequently overlap, and . . . the doctrine of the separation of powers cannot be applied rigidly . . . .” (Citation omitted; internal quotation marks omitted.) Whitaker v. Commissioner of Correction, 90 Conn. App. 460, 480-82, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005).

In the present case, the respondent, an agent of the executive branch, implemented a policy in accordance with the judiciary’s interpretation of a statute promulgated by the legislature. Because the petitioner has failed to demonstrate any improper commingling of governmental powers, his claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the habeas court found that the Bridgeport incident occurred on September 7, 1995, which is the same date as the petitioner’s arrest on both files. In its brief, the respondent has pointed out that the original information in the court’s file notes the date of offense as September 24, 1993. Although the petitioner does not comment on this discrepancy, we note it simply to clarify the record. It does not impact the correctness of the habeas court’s judgment or the reasoning of this opinion.

       Although we note that Harris concerned only presentence confinement credit and not presentence good time credit, the petitioner makes no claim that the reasoning of Harris should apply with less force to one and not to the other. On appeal, the petitioner makes no distinction between presentence confinement time and presentence good time in his reasoning regarding the application of Harris to his situation. Nor do we perceive any reason to make a distinction because, in accord with Harris, if both earned presentence good time and confinement credits are applied to the first sentence, neither is forfeited. That their application to the first sentence does not result in the advancement of an inmate’s release date is a matter of factual happenstance relating to the terms of the respective sentences.

       According to Harris, “when concurrent sentences are imposed on different dates, the presentence confinement days accrued simultaneously on more than one docket are utilized fully on the date that they are applied to the first sentence. Hence, they cannot be counted a second time to accelerate the discharge date of any subsequent sentence without violating the language of [General Statutes] § 18-98d (a) (1) (A).” Harris v. Commissioner of Correction, supra, 271 Conn. 823.

       It appears from the record that the respondent mistakenly believed that the Bridgeport offense took place in 1995. On the basis of this belief, the respondent removed the good time credits from the Stamford time sheet and did not reapply these credits to the Bridgeport time sheet because inmates who commit offenses after October 1, 1994, are not eligible to receive good time credit. See Velez v. Commissioner of Correction, 250 Conn. 536, 552, 738 A.2d 604 (1999). Because the Bridgeport offense took place in 1993, the petitioner is eligible to receive good time credits relating to his sentence for this offense. In this instance, however, because the second sentence is substantially longer than the first, it appears that proper application of good time credits to the first sentence will afford the petitioner no practical relief.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FELIX VALENTIN
    (AC 27187)
    Bishop, Haiper and Foti, Js.
    Argued October 18
    officially released December 11, 2007

      Arthur L. Ledford, special public defender, for the appellant (defendant).

      Igor J. Kuperman, certified legal intern, with whom were Bruce R. Lockwood, assistant state’s attorney, and, on the brief, Scott J. Murphy, state’s attorney, and Brett

      J. Salafia, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Felix Valentin, appeals from the judgment of conviction, following a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1), criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury on self-defense for the charge of attempt to commit assault in the first degree and (2) instructed the jury on the definition of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 4, 2004, the defendant, who was intoxicated, refused to pay the required cover charge and was refused entry to the El Pegadito night club in New Britain. He became belligerent and had to be escorted to the sidewalk by Raymond Perez, a bouncer at the club.

The defendant returned to the club shortly thereafter. At this point, the defendant was armed with a knife and swung it twice at Perez’ midsection. The defendant was restrained by Perez and another person until the police arrived. When the police arrived, the defendant was still holding the knife. The officer who responded to the scene fired his Taser gun into the defendant’s back several times after the defendant refused to drop the knife.

On August 2, 2005, after a jury trial, the jury found the defendant guilty on all four counts. On September 29, 2005, the court sentenced the defendant to a total effective term of fifteen years of imprisonment, execution suspended after serving the five year mandatory minimum, and five years of probation. This appeal followed.

I

The defendant first claims that the court improperly failed to instruct the jury on self-defense with regard to the charge of attempt to commit assault in the first degree. We decline to review this claim.

The following additional facts and procedural history are necessary for our resolution of this issue. At trial, the defendant testified that he did not initiate the incident and that Perez struck him first with a metal detector wand. The defendant testified that when he fought back, he and Perez fell to the floor, where the defendant found and picked up a knife. The defendant denied swinging the knife at Perez. Instead, he claimed that other people jumped on him and that he was unconscious when the police arrived.

After all the evidence had been presented, a charging conference took place in chambers. A draft of the proposed charge was furnished to the parties by the court, and the court indicated on the record that it determined that a legitimate self-defense claim applied to the breach of the peace count but not to the charge of attempt to commit assault in the first degree, “given the testimony of the accused as to the events that had occurred on the morning of December 4, 2004.” Defense counsel was asked whether he had any objection to the court’s charging on self-defense in that manner, and defense counsel replied, “No, Your Honor.” The defendant acknowledges that he failed to file a written request for any jury charge and that he declined to object to the jury charge when asked by the court on two separate occasions. Although the record reflects that the court discussed such an instruction with the parties, there is no evidence in the record from which to conclude that the defendant requested such an instruction. Because the claim was not preserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“To implicate a constitutional right, the defendant [must] assert a claim of self-defense and present evidence to warrant a jury instruction on the defense.” State v. Solomon, 103 Conn. App. 530, 535, 930 A.2d 716 (2007). Because the defendant did neither in the present case, he has failed to demonstrate that his claim implicates a constitutional right. The defendant did not request an instruction on self-defense pursuant to Practice Book §§ 42-16 through 42-18, did not object to the instruction given and did not present sufficient evidence to justify such an instruction with respect to the charge of attempt to commit assault in the first degree. We therefore conclude that this claim is not of constitutional magnitude and decline to afford it further review.

II

The defendant also claims that the court’s jury instruction regarding reasonable doubt was improper. Specifically, the defendant claims that by using the words “sufficient evidence” rather than “proof,” the court delivered a “watered down version” of the reasonable doubt standard. He further alleges that the court’s use of the language, “strong and abiding conviction,” in defining reasonable doubt, was unconstitutional because it “water[ed] down” the definition. The defendant did not preserve this issue and now seeks to prevail under State v. Golding, supra, 213 Conn. 239-40.

Our Supreme Court has determined that “whether a jury instruction is improper is gauged by considering the instruction in its entirety, and with reference to the facts and evidence in the case, so as to determine whether it fairly presented the case to the jury in that no injustice was done under established legal rules.” State v. Munoz, 233 Conn. 106, 120, 659 A.2d 683 (1995). “[A]s to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

On the basis of our review of the charge in its entirety, we conclude that it was not reasonably possible that the court’s instructions misled the jury. This court and our Supreme Court have upheld instructional language similar to or identical to the language used by the court in the present case. See, e.g., State v. Ross, 230 Conn. 183, 221, 646 A.2d 1318 (1994) (“ ‘proof which leaves you with a strong and abiding conviction that the accused is guilty of the crimes with which he has been charged’ ”), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Dubose, 75 Conn. App. 163, 167, 815 A.2d 213 (“ ‘sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant’ ”), cert. denied, 263 Conn. 909, 819 A.2d 841 (2003); State v. Iovieno, 14 Conn. App. 710, 726 n.9, 543 A.2d 766 (“ ‘proof by sufficient evidence to overcome the presumption of innocence on his part’ ”), cert. denied, 209 Conn. 805, 548 A.2d 440 (1988). We conclude that the defendant’s claim fails to satisfy the third prong of State v. Golding, supra, 213 Conn. 239-40, because it fails to establish that a constitutional violation clearly existed and clearly deprived the defendant of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record is silent as to what occurred during the chambers conference, and we are not free to speculate as to what occurred therein.

       The defendant makes no claim that the court had a sua sponte duty to instruct the jury on self-defense for the charge of attempt to commit assault in the first degree. During oral argument, the defendant specifically disavowed any such claim.

       To prevail on appeal on a constitutional claim that was not preserved adequately at trial, a defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “[W]e remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 689, 613 A.2d 788 (1992).

       While charging the jury, the court stated that “[t]he burden of proving the accused’s guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of his guilt.”


author: GRUENDEL, J.

text:
    ROCCO GUARNIERI ET AL. v. LOUIS GUARNIERI ET AL.
    (AC 27963)
    DiPentima, Gruendel and Borden, Js.

      Argued October 22
    officially released December 11, 2007

      Mark F. Katz, for the appellant (named defendant).

      Nathalie Feola-Guerrieri, for the appellees (plaintiffs).
   Opinion

GRUENDEL, J.

This case concerns a dispute between brothers. The defendant Louis “Luigi” Guamieri appeals from the judgment of the trial court dismissing all nine counts of his counterclaim against the plaintiff Rocco Guamieri. The defendant claims that the court improperly concluded that it lacked subject matter jurisdiction thereon. We affirm in part and reverse in part the judgment of the trial court.

The record discloses the following factual allegations and procedural history. In the summer of 1994, the plaintiff, the defendant, Giuseppe Leale and Umile Ceci (shareholders) formed a corporation known as 4-D Rose, Inc. (corporation). The corporation issued 300 shares of common stock. Leale and Ceci each received twenty-four shares, while the defendant received 126 shares. In an effort to shield the remaining 126 shares from the plaintiffs pending divorce proceeding, the shareholders agreed that those shares would be issued in the name of the defendant to be held by him for the benefit of the plaintiff. Shortly thereafter, the corporation purchased real property known as 42 Dean Place in Bridgeport (property), which consisted of forty residential rental units and was the primary asset of the corporation.

Although the parties initially managed the property jointly, disputes soon arose. In exchange for maintaining and managing the property, the plaintiff occupied an apartment at the property without paying rent. Thereafter, the plaintiff granted himself a monthly salary of $3500 over the objection of the defendant. The defendant subsequently questioned the plaintiffs management of the property, alleging a series of corporate wrongs on the part of the plaintiff, including the plaintiffs failure to provide financial documentation and to prepare timely management reports, his refusal to allow the defendant to participate in business decisions regarding the property and his refusal to account for the income generated by the property. On May 10,1999, the parties entered into a stipulation before the court, Melville, J., which provided that Donadeo Realty & Management, Inc., would act as the exclusive receiver of rents for the property. In contravention of that stipulation, the plaintiff on January 1, 2001, notified all tenants of the property that rents were to be paid to a post office box under his control. In addition, accountant Paul Bologna performed an extensive review of the corporation’s records, which revealed significant discrepancies between the management reports filed by the plaintiff and the actual deposits made to the corporation’s accounts.

On August 4, 1998, the plaintiff filed suit against the defendant to, inter alia, compel him to transfer to the plaintiff 126 shares of the corporation. The defendant responded by filing an answer and a counterclaim. The defendant’s counterclaim consisted of nine counts that alleged (1) that the defendant and the corporation were deprived of vital information concerning the payment of rent and expenses of the building owned by the corporation, (2) a mistake in the allocation of shares to the plaintiff, (3) that the management of the corporation was deadlocked and the dissolution of the corporation was necessary, (4) conversion by the plaintiff of the business opportunities and income generated by the corporation, (5) fraud on the part of the plaintiff in his management of the property, (6) breach of the plaintiffs fiduciary duty to the defendant, (7) breach of contract, (8) unjust enrichment and (9) theft in violation of General Statutes § 52-564.

On January 24, 2003, the parties entered into a partial settlement agreement (agreement) whereby the plaintiff had the right to purchase the defendant’s shares in the corporation. The agreement stated that it was entered into by “Rocco” and “Luigi,” whom it explained “are brothers and each claims an ownership interest” in the corporation. The agreement also noted that “Luigi and Rocco” collectively would be referred to in it as either the “ ‘[p]arties’ or ‘[shareholders’ . . . .”

The agreement explained that “certain disputes exist between the [shareholders with respect to the management of the [Corporation and the [p]roperty, as well as with respect to amounts that may be due to either or both of the [shareholders from the [Corporation and personal claims by each [shareholder against the other . . . .” It continued: “[T]he [shareholders desire to resolve their business disputes with respect to the [Corporation and the [p]roperty through acquisition by one [shareholder of the shares of the [Corporation owned by the other . . . and establishment of a mechanism to resolve any and all remaining claims between the [shareholders • • • ■”

Paragraph nine of the agreement set forth that mechanism. Titled “Parties Directed to Resolve Differences or Proceed to Hearing,” it states that “[e]ach of the [shareholders] agrees to attempt, in good faith, to adjust any and all financial disagreements each has with the other to the extent related to the operation of the [Corporation at any time (the ‘corporate financial differences’). The [p]arties agree to deliver to the [Custodian and to the other party, within one week of a request in writing by the [Custodian, any information the [Custodian deems necessary to resolve the corporate financial differences between the [p]arties and the corporation. The [c]ustodian shall endeavor to obtain an agreement between the [p]arties of their corporate financial differences. Each party shall have the right to submit a position paper to the [cjustodian on the issues. If, after good faith efforts to resolve these corporate financial differences any have not been resolved, then either party may request a hearing before the [c]ourt to resolve any and all such differences. In this event, the [cjustodian shall pay whatever sums he is holding in escrow to any party and in the amounts that the [cjourt shall direct.”

The motion for acceptance and approval of the settlement filed by the plaintiff averred that “[the plaintiff] and [the defendant] are the sole shareholders of the [corporation.” In that motion, the plaintiff further stated that “[t]his relief is requested because the parties have reached a partial settlement of this case and this [o]rder is necessary to carry out and effectuate that partial settlement." (Emphasis added.) On January 31, 2003, the court approved and accepted the settlement agreement. In its order accepting and approving the settlement agreement, the court, Levin, J., stated that the agreement “provides for a partial settlement of certain claims in the above-captioned litigation” and further noted that “the parties have voluntarily entered into such partial settlement pursuant to the terms of that certain [sjettlement [agreement . . . .” The plaintiff thereafter purchased the defendant’s shares of the corporation, leaving him the sole owner thereof.

Litigation of the remaining issues between the parties continued. In April, 2003, the custodian, pursuant to paragraph nine of the agreement, set forth a schedule for the parties to submit position papers in support of their various claims against one another and the corporation. One day before those papers were due, the plaintiff informed the custodian that he was unable to present a position paper. On June 10, 2003, counsel for the plaintiff filed a motion to withdraw his appearance, and the plaintiff filed a pro se appearance. On June 16, 2003, the defendant notified the custodian that further attempts to resolve the remaining issues were unlikely to be successful and that a motion to terminate the custodian would be filed in order to have a hearing on the remaining issues before the court, as provided for in the agreement. The defendant on July 10, 2003, filed a motion for termination of the custodian and other relief, and a certificate of closed pleadings in which he sought a hearing before the court.

A trial date of May 24, 2005, was set. On that date, the plaintiff, as sole shareholder of the corporation, filed a -withdrawal of the corporation’s counterclaim against the plaintiff. The plaintiff further filed a motion to dismiss the defendant’s counterclaim, which stated: “[The plaintiff] respectfully moves that the [counterclaim dated February 12, 2001, brought by [the defendant] be dismissed as there is no subject matter jurisdiction to hear an accounting claim brought by a shareholder, [the defendant], and not derivatively by the corporation.” (Emphasis added.) The plaintiff did not move to dismiss any of the other eight counts contained in the counterclaim.

In the memorandum of law that accompanied the motion to dismiss, the plaintiff asserted that “[t]he other counts claim reallocation of shares, corporate dissolution, conversion, fraud, breach of fiduciary duty, breach of contract and unjust enrichment. All issues were resolved except for an accounting in 2003.” The agreement, particularlyparagraphnine, indicates otherwise. As the court, Richards, J., noted in its memorandum of decision, “[t]he plain meaning of the agreement suggests that once the issue of ownership and management of the corporation was resolved, the parties had the option of a hearing to resolve any other financial disputes against each other.” Nevertheless, the court did not resolve those disputes. Rather, it concluded that the defendant lacked standing: “[The defendant] was a shareholder when the complaint was filed and the counterclaims brought. Today, he is no longer a shareholder in the corporation by virtue of the plaintiff acquiring his shares. When [the defendant] brought the counterclaims against the plaintiff, he was acting as one of [the corporation’s] shareholders. Since the corporation is now owned entirely by the plaintiff and [the defendant] no longer has a stake in the outcome of the counterclaims, [the defendant] no longer fairly and adequately represents the interest of the corporation. The court, therefore, is without subject matter jurisdiction because [the defendant] has no standing in this case.” On that basis, the court dismissed the defendant’s counterclaim, and this appeal followed.

The defendant’s sole claim on appeal is that the court improperly concluded that it lacked subject matter jurisdiction. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . In 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. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Citations omitted; internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 431-32, 806 A.2d 535 (2002).

On appeal, the defendant maintains that the court improperly concluded that, by virtue of the agreement entered into by the parties and the defendant’s subsequent sale of his shares in the corporation to the plaintiff, he was without standing to proceed on any of the nine counts contained in his counterclaim. We agree.

“The issue of standing implicates this court’s subject matter jurisdiction. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 460-61, 839 A.2d 589 (2004).

In the seminal case of Yanow v. Teal Industries, Inc., 178 Conn. 262, 422 A.2d 311 (1979), our Supreme Court addressed the distinction between derivative and personal causes of action in the corporate context. It stated: “A distinction must be made between the right of a shareholder to bring suit in an individual capacity as the sole party injured, and his right to sue derivatively on behalf of the corporation alleged to be injured. . . . Generally, individual stockholders cannot sue the officers at law for damages on the theory that they are entitled to damages because mismanagement has rendered their stock of less value, since the injury is generally not to the shareholder individually, but to the corporation—to the shareholders collectively. . . . [I]t is axiomatic that a claim of injury, the basis of which is a wrong to the corporation, must be brought in a derivative suit, with the plaintiff proceeding ‘secondarily,’ deriving his rights from the corporation which is alleged to have been wronged. ... It is, however, well settled that if the injury is one to the plaintiff as a stockholder, and to him individually, and not to the corporation, as where an alleged fraud perpetrated by the corporation has affected the plaintiff directly, the cause of action is personal and individual. ... In such a case, the plaintiff-shareholder sustains a loss separate and distinct from that of the corporation, or from that of other shareholders, and thus has the right to seek redress in a personal capacity for a wrong done to him individually.” (Citations omitted.) Id., 281-82.

In the present case, the court’s analysis centered exclusively on the defendant’s inability fairly and adequately to represent the interest of the corporation. By dismissing all nine counts of the defendant’s counterclaim, the court implicitly concluded that each was derivative in nature. The court failed to address in any manner the defendant’s contention that the counterclaim included personal claims against the plaintiff, despite the fact that each of the nine counts alleged an injury to the defendant. Our plenary review of the question of subject matter jurisdiction requires us to resolve that issue.

At the time that the plaintiff moved to dismiss the defendant’s counterclaim, five significant events had transpired. First, the parties had entered into a partial settlement agreement that expressly provided for further court proceedings to resolve the remaining financial disagreements between the parties. Second, the court entered an order accepting that “partial settlement.” Third, the plaintiff purchased the defendant’s shares of the corporation, leaving the plaintiff as the sole owner of the shares. Fourth, after efforts to resolve their remaining disagreements proved unsuccessful, the defendant brought the matter before the court pursuant to paragraph nine of the agreement. Fifth, the plaintiff, as sole owner of the coiporation, withdrew the counterclaim of the corporation against the plaintiff. Thus, all that remained for the court’s consideration was the defendant’s individual counterclaim against the plaintiff.

We agree with the court that the defendant lacked standing to pursue the first four counts of the counterclaim. The defendant conceded in his opposition to the motion to dismiss that the relief sought on count one was “reimbursement to the corporation of all [moneys] due to the corporation from the plaintiff’ stenuning from accounting irregularities. Because the plaintiff is sole owner of the corporation, the defendant cannot claim an interest therein. Likewise, count four, which alleged conversion of the corporation’s business opportunities and income, plainly belongs to the corporation, and the defendant has not alleged otherwise. No longer a shareholder in the corporation, the defendant cannot maintain a derivative action on its behalf. See General Statutes §§ 33-721 and 52-572j (permitting shareholders to maintain derivative actions); accord 2 A.L.I., Principles of Corporate Governance: Analysis and Recommendations (1994) § 7.02. Moreover, counts two and three, which alleged a mistake in the allocation of shares to the plaintiff and that the management of the corporation was deadlocked, thereby necessitating the dissolution of the corporation, fully were resolved when the defendant sold his shares of the corporation to the plaintiff in accordance with the agreement.

The final five counts of the defendant’s counterclaim are another story. Construed in the light most favorable to the defendant, they allege individual injuries. Count five alleged that the plaintiff made fraudulent representations to the defendant, on which the defendant relied to his detriment. Count six alleged that the plaintiff breached his fiduciary duty to the defendant. Count seven alleged that the plaintiff violated the May 10,1999 stipulation, resulting in a breach of his contract with the defendant. Count eight alleged that the plaintiff was unjustly enriched at the defendant’s expense. Finally, count nine alleged that the plaintiff committed theft in violation of § 52-564, which deprived the defendant of moneys otherwise due to him.

As one commentator has noted, it can be “difficult to determine whether a particular claim belongs to a shareholder individually or to the corporate entity itself.” M. Ford, Connecticut Corporation Law & Practice (2d Ed. 2007) § 4.06, p. 4-88. Normally, the court would examine each count and ascertain whether the defendant has demonstrated an injury that is separate and distinct from that of any other shareholder or the corporation. See State v. Snyder, supra, 267 Conn. 461. This is not the normal case. This case involves a closely held corporation. Most importantly, the alleged perpetrator of corporate wrongs is now the sole owner of that very corporation. There is thus no shareholder similarly situated to the defendant. Furthermore, the corporation, wholly owned by the plaintiff, has withdrawn the corporation’s counterclaim against the plaintiff.

We also are mindful of the fact that the plaintiff voluntarily entered into a partial settlement agreement. “A settlement agreement is a contract among the parties.” Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 700, 638 A.2d 41 (1994), rev’d on other grounds, 231 Conn. 469, 650 A.2d 1240 (1994); see also Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007) (“[a] settlement agreement is a contract that is interpreted according to general principles of contract law”). The agreement acknowledged that disputes existed between the parties as to both the management of the corporation and as to personal disputes. The plaintiff represented to the court that the agreement was a “partial agreement” that set forth “a mechanism to resolve any and all remaining claims between the [shareholders ... .” That mechanism, described in paragraph nine of the agreement, included resort to the court to resolve the remaining claims. On January 31, 2003, Judge Levin entered an order approving and accepting the agreement, which stated that the agreement “provides for a partial settlement of certain claims in the above-captioned litigation” and further noted that “the parties have voluntarily entered into such partial settlement pursuant to the terms of that certain [sjettlement [ajgreement . . . .”

Finally, the plaintiff’s contention that the agreement concerns only the claims of shareholders, and not individual parties, is without merit. At its outset, the agreement stated that “Rocco and Luigi are brothers and each claims an ownership interest in the shares of [the corporation]” and provided that they would collectively be referred to as either the “ ‘[pjarties’ or ‘[sjhareholders’ . . . .” Subsequent references to “the shareholders” was mere shorthand for the plaintiff and the defendant. Paragraph nine, for example, demonstrates that the terms “shareholders” and “parties” are used interchangeably. It provides in relevant part: “Each of the [s]hareholde [rs] agrees to attempt, in good faith, to adjust any and all financial disagreements each has with the other .... The [p]arties agree to deliver to the [cjustodian and to the other party . . . any information the [c]ustodian deems necessary to resolve the corporate financial differences between the \p]arties and the corporation. The [cjustodian shall endeavor to obtain an agreement between the \p]arties of their corporate financial differences. Each party shall have the right to submit a position paper to the [cjustodian on the issues. If, after good faith efforts to resolve these corporate financial differences any have not been resolved, then either party may request a hearing before the [cjourt to resolve any and all such differences.” (Emphasis added.) The use of the term “shareholder” in the agreement does not signify that the agreement concerns shareholder claims exclusively.

Under the unique facts of this case and in light of the plaintiffs peculiar status as both alleged perpetrator of corporate wrongs and sole shareholder of the coiporation, we conclude that the defendant has the requisite standing to litigate counts five, six, seven, eight and nine of his counterclaim against the plaintiff. Considered in the light most favorable to the pleader, the defendant’s alleged injuries are separate and distinct from those of the corporation and any shareholder. Accordingly, the court’s determination that it lacked subject matter jurisdiction over those claims was improper.

The judgment is reversed only as to counts five through nine of the counterclaim and the case is remanded for further proceedings on those counts. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       For convenience, we refer to Rocco Guamieri and Louis Guamieri as the plaintiff and the defendant, respectively. We note that Giuseppe Leale and Umile Ceci were named as plaintiffs in this action. Moreover, although 4-D Rose, Inc., originally was named a defendant, the plaintiff withdrew the action against 4-D Rose, Inc., and, thus, it is not a party to this appeal.

       At some point during the pendency of the litigation, the plaintiff and the defendant became the sole shareholders of the corporation.

       Count one of the defendant’s counterclaim sought an accounting.

       We note that the plaintiffs statement omitted the theft count alleging a violation of § 52-564.

       On appeal, the plaintiff asserts that all counts contain derivative claims.

       In Fink v. Golenbock, 238 Conn. 183, 200 n.14, 680 A.2d 1243 (1996), our Supreme Court stated: “At least one authority has suggested that in the case of a closely held corporation, the court may choose to treat a derivative action as a direct action: ‘In the case of a closely held corporation . . . the court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery 2 American Law Institute, Principles of Corporate Governance: Analysis and Recommendations (1994) § 7.01 (d).”


author: PER CURIAM.

text:
    RONALD PATTERSON v. TRAVELERS CASUALTY AND SURETY COMPANY ET AL.
    (AC 27720)
    Bishop, Harper and Foti, Js.
    Argued October 18
    officially released December 11, 2007

      Ronald Patterson, pro se, the appellant (plaintiff).

      Bradford R. Carver, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff, Ronald Patterson, appeals from the judgment of the trial court in favor of the defendants, Travelers Casualty & Surety Company (Travelers) and Paul Lewis. On appeal, the plaintiff claims that the court improperly (1) opened a default against Travelers and (2) directed a verdict in favor of Travelers and Lewis. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. In April, 2004, the plaintiff commenced this pro se action against Boce W. Barlow, Jr., and Lewis, alleging breach of fiduciary duty in their capacity as executors of the estate of the plaintiffs grandfather, Quitman Butler. The plaintiff also sought to recover against Travelers as surety on a probate bond issued to Barlow. Prior to the start of trial in April, 2006, Barlow died. The court, Tanzer, J., relying on General Statutes §§ 52-599 and 52-600, informed the parties that the court could not proceed with any claims as to Barlow until his estate was brought into the action by the plaintiff but that the action could move forward as to the remaining defendants.

On June 15, 2005, Travelers did not appear for a pretrial conference and a default was entered against it. On July 11, 2005, prior to a hearing in damages that had been scheduled, the court, Bryant, J., granted Travelers’ motion to open the default. Travelers’ motion indicated that it had not received a copy of the pretrial notice.

The matter was tried to the jury as to the two remaining defendants, Travelers and Lewis. At the conclusion of the plaintiffs case, the defendants moved for a directed verdict, which Judge Tanzer granted. The court determined that the plaintiffs claims were barred by the statute of limitations and by the doctrine of res judicata. On May 16,2006, the plaintiff filed this appeal.

I

The plaintiff first claims that Judge Bryant improperly set aside or opened the default against Travelers. We disagree.

“We review a court’s ruling on a motion to set aside a default under the abuse of discretion standard. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) Merritt v. Fagan, 78 Conn. App. 590, 593, 828 A.2d 685, cert. denied, 266 Conn. 916, 833 A.2d 467 (2003).

In the present case, the motion to open the default is governed by Practice Book § 17-42 because the default was entered prior to final judgment. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 733, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). Section 17-42 provides in relevant part: “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown . . . .”

The court found that Travelers’ failure to receive notice constituted good cause for its nonappearance. We conclude, therefore, that the court did not abuse its discretion in granting the motion to set aside or to open the default.

II

The plaintiff next claims that Judge Tanzer improperly directed a verdict in favor of Travelers and Lewis. We disagree.

Our standard for reviewing a challenge to a directed verdict is well settled. “Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. . . . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict. ” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn. App. 556, 565-66, 874 A.2d 259 (2005).

The record discloses that on December 19, 1994, the final accounting was approved by the Probate Court for the district of Hartford, which rendered a final decree terminating the fiduciary’s obligation. No appeal was filed. Therefore, the Probate Court’s order is no longer subject to attack.

“All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.” General Statutes § 45a-24. Because the Probate Court determined that the fiduciary complied with his obligations and terminated the bonds, res judicata acts as a bar to further litigation absent a timely appeal, which, in the present case, was not filed by the plaintiff.

The judgment is affirmed.

       The plaintiff also alleges that the court improperly struck the case from the hearing in damages list. This claim is subsumed in the first issue and is also without merit.

       Barlow’s estate was substituted as a party after judgment was rendered and after this appeal was filed. Issues raised as to Barlow are not properly before us.

       A decree by the Probate Court for the district of Hartford, dated December 19,1994, was concluded to be a final judgment from which the plaintiff failed to appeal.

       The court also found that the plaintiff had failed to present sufficient evidence to sustain his claim of fraud. In his complaint, the plaintiff alleged that Lewis fraudulently acted as trustee of Butler’s estate for at least ten years. The plaintiff claimed that Lewis had never been authorized to act as trustee and failed to post a surety bond with Travelers or any other surety company for the time he served as trustee. Because we affirm the judgment on the basis of res judicata, we do not reach this claim.

       The plaintiff argues that the default could not be opened because the matter was not filed within four months, as required by Practice Book § 17-4. Section 17-4 applies to judgments and not a default on which a judgment has not yet been rendered.


text:
    STATE OF CONNECTICUT v. NATHANIEL CARMONA
    (AC 28969)
    Bishop, Gruendel and Borden, Js.
    Argued November 13
    officially released November 20, 2007

      Tejas Bhatl, assistant public defender, with whom were Adele V. Patterson, acting chief of habeas corpus services, and, on the brief, Jennifer L. Bourn, deputy assistant public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Suzanne M. Vieux, assistant state’s attorney, for the appellee (state).

       November 20, 2007, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

In this appeal, the defendant, Nathaniel Carmona, raises important and troubling issues concerning the calculation and application of presentence confinement credit. He appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence, claiming that the court improperly concluded that it lacked subject matter jurisdiction over the motion. We affirm the judgment of the trial court.

The following facts as found by the court are not disputed. “On November 30, 2000, the defendant . . . was arrested for sale of narcotics in violation of General Statutes § 21a-277 (a). He was arraigned in Bridgeport on December 1, 2000, and posted bond shortly thereafter (the Bridgeport file). The defendant remained out on bond until April 28, 2001, when he was arrested for robbery in the second degree in violation of General Statutes § 53a-135. The defendant was arraigned on this charge in Norwalk on April 30, 2001, and was subsequently held on bond (the Norwalk file). On June 4, 2001, the bond in the Bridgeport file was raised. On November 28, 2001, the defendant pleaded guilty in the Bridgeport file and received a sentence of five years, execution suspended after eighteen months, and three years probation. On March 18, 2002, the defendant pleaded guilty in the Norwalk file and received a sentence of five years, execution suspended after twenty months, and four years probation, to run concurrently with the sentence in the Bridgeport file. The department of correction [department] credited both the Bridgeport and Norwalk sentences with presentence confinement credit. In the Bridgeport file, the defendant received 177 days of credit for the time he served from June 4, 2001, the date the bond was raised, to November 28, 2001, the date he was sentenced. Therefore, the defendant’s discharge date was calculated to be November 29, 2002. In the Norwalk file, the defendant received 212 days of credit for the time he served from April 30, 2001, the date of his arraignment in that file, to November 28,2001, the date of his sentencing in the Bridgeport file. Accordingly, the defendant’s discharge date was calculated to be May 19, 2003. On that date, the defendant was released to probation.

“Almost three years later, on April 25,2006, the defendant was arrested for violation of probation in the Bridgeport file. The defendant was arrested for violation of probation in the Norwalk file two days later, on April 27, 2006. On July 14, 2006, the defendant admitted to the violation of probation in the Norwalk file and was sentenced to twenty months in prison. On July 18, 2006, the defendant admitted to the violation of probation in the Bridgeport file and was sentenced to one year in prison, to run concurrently with the Norwalk sentence. The department . . . credited the defendant with seventy-eight days of presentence confinement credit on the Norwalk violation of probation sentence for the time the defendant served from his arraignment on April 27, 2006, to his sentencing on July 14, 2006. Accordingly, the defendant’s discharge date for the violation of probation in Norwalk would have been December 27, 2007. The department . . . however, added 177 days to the sentence as time owed, based on its interpretation of the Supreme Court’s decision in Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004), which had been decided after the defendant served his time on the underlying charges in the Bridgeport and Norwalk files, but before he violated his probation in those files. Therefore, the defendant’s discharge date was calculated to be June 14, 2008.”

In response, the defendant filed a motion to correct his sentence pursuant to Practice Book § 43-22, which provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” In the motion, he asked the court to correct his sentence for violation of probation in the Norwalk file and to issue a revised mittimus reflecting his presentence confinement credit from June 4 to November 28, 2001. In his accompanying memorandum of law, the defendant claimed that (1) his sentence was imposed in an illegal manner because the state breached the plea agreement in violation of his federal and state constitutional rights to due process and (2) his sentence was illegal because it violated his constitutional right against double jeopardy.

The court held a hearing on the matter on June 22, 2007. At the outset, counsel for the defendant stated that a “motion to correct . . . must be filed before these claims can be pursued in a petition for a writ of habeas corpus .... [TJhat’s why we’re here, in order to preclude the state in a habeas [proceeding] from raising the claim of procedural default.” The court subsequently heard testimony from the defendant, his counsel in the violation of probation proceeding, Mary Elizabeth Reid, and Michelle Deveau, a records specialist at the department. During the hearing, the state argued that the court lacked jurisdiction to correct the sentence because the sentence was not illegal at the time the court imposed it, as the decision regarding the addition of the 177 days to the original sentence was that of the department. The court agreed and denied the defendant’s motion. From that judgment, the defendant now appeals.

The defendant maintains that the court improperly concluded that it lacked subject matter jurisdiction over the motion to correct his sentence. The issue of subject matter jurisdiction presents a question of law over which our review is plenary. State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004).

“A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant’s sentence has begun, the authority of the sentencing court to modify that sentence terminates.” State v. Casiano, 282 Conn. 614, 624, 922 A.2d 1065 (2007). In order for the court to have jurisdiction over such a motion, the sentencing proceeding must itself be the subject of the attack. Id., 625; State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007). We agree with the court that neither the defendant’s due process nor double jeopardy claims implicate the sentencing proceeding itself. The act allegedly giving rise to those violations was the addition of 177 days to his sentence by the department. As the court noted, the defendant attacks not the legality of the sentence imposed by the court during the sentencing proceeding but, rather, the legality of his sentence as subsequently calculated by the department.

In its brief, the state repeatedly argues that “the habeas court is the proper venue to bring the defendant’s claims” and cites Wright v. Commissioner of Correction, 216 Conn. 220, 225-26, 578 A.2d 1071 (1990), Casey v. Commissioner of Correction, 215 Conn. 695, 697-98, 577 A.2d 1051 (1990), and Abed v. Commissioner of Correction, 43 Conn. App. 176, 179-82, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996), in support of that proposition. We agree with the state.

Because it is the act of the department in applying presentence confinement credit, and not the sentencing proceeding itself, that is the subject of the defendant’s attack, we conclude that the court properly determined that it lacked subject matter jurisdiction over the defendant’s motion to correct.

The judgment is affirmed.

       We note with interest the court’s statement that “ [a] violation of probation is a new offense and a defendant can be subject to a new sentence. See General Statutes § 53a-32 (b). If the defendant is subject to any sentence that is different from the original sentence imposed, the original sentence is deemed revoked. General Statutes § 53a-32 (b).”

       The record reveals that the defendant filed a petition for a writ of habeas corpus on October 4, 2006. That matter presently is pending.

         The defendant filed a motion to expedite the appeal, which this court granted.

       Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.


author: Per Curiam.

text:
    HOLLY FLOR v. MICHAEL R. POHL, CONSERVATOR (ESTATE OF PATRICIA ANN SCHUETZ)
    (AC 28069)
    Gruendel, Harper and Mihalakos, Js.
    Argued September 10
    officially released October 9, 2007
   Per Curiam.

The judgment is affirmed.


text:
    SUSAN K. PAPERNY v. MARK A. SHAPIRO
    (AC 27196)
    Flynn, C. J., and Lavine and West, Js.
    Submitted on briefs September 4
    officially released October 30, 2007
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JASON DION GASTON
    (AC 27626)
    DiPentima, Lavine and Hennessy, Js.
    Argued October 18
    officially released October 30, 2007
   Per Curiam.

The judgment is affirmed.


text:
    DANNY LOWERY v. MICHAEL STEINBACH ET AL.
    (AC 28113)
    McLachlan, Gruendel and Berdon, Js.
    Argued October 15
    officially released October 30, 2007
   Per Curiam.

The judgment is affirmed.


text:
    MARIO SEGOVIA v. SUSAN SEGOVIA
    (AC 28173)
    Flynn, C. J., and Lavine and West, Js.
    Argued October 24
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. REGINALD COREY
    (AC 27925)
    Flynn, C. J., and McLachlan and Lavine, Js.
    Submitted on briefs November 15
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


text:
    ANDREW J. CAMPBELL v. WILLIAM A. LICHTENFELS
    (AC 27891)
    Flynn, C. X, and Harper and Peters, Js.
    Argued November 15
    officially released December 11, 2007
   Per Curiam.

The appeal is dismissed.


text:
    JULIAN ABBEY v. LUCY ABBEY
    (AC 27585)
    Flynn, C. J., and McLacldan and Lavine, Js.
    Submitted on briefs November 15
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


text:
    BNC MORTGAGE, INC. v. PAUL HARRIS ET AL.
    (AC 28645)
    Bishop, Gruendel and Borden, Js.
    Submitted on briefs November 15
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LEE ALLAN HENRY, JR.
    (AC 28344)
    Bishop, Gruendel and Borden, Js.
    Submitted on briefs November 15
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


text:
    ROGER JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 28301)
    Bishop, Gruendel and Borden, Js.
    Submitted on briefs November 15
    officially released December 11, 2007
   Per Curiam.

The appeal is dismissed.


text:
    GLORIA PALMIERI v. METCALF’S DRUG STORE, INC.
    (AC 28285)
    Flynn, C. J., and McLachlan and Gruendel, Js.
    Argued November 26
    officially released December 11, 2007
   Per Curiam.

The judgment is affirmed.


author: LAVINE, J. MCDONALD, J.,

text:
    JAMES P. PURCELL ASSOCIATES, INC. v. J. MARTIN HENNESSEY ET AL.
    (AC 27515)
    Schaller, Lavine and McDonald, Js.

      Argued May 30
    officially released December 18, 2007

      Steven W. Varney, for the appellant (plaintiff).

      Patrick W. Boatman, with whom, on the brief, was Jenna N. Sternberg, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, James P. Purcell Associates, Inc., appeals from the judgment of the trial court rendered in favor of the individual defendant, J. Martin Hennessey. On appeal, the plaintiff claims, in essence, that the court improperly failed to find that the individual defendant was unjustly enriched. We affirm the judgment of the trial court.

The individual defendant is a real estate developer, and the corporate defendant, The Hennessey Company, Inc., is a Connecticut corporation he formed in 1992. In December, 1998, the individual defendant, as manager of the corporate defendant, signed an agreement between the plaintiff and the corporate defendant. In January, 1999, the individual defendant signed, as the “G.P.” of the corporate defendant, an agreement between the plaintiff and the corporate defendant. The agreements called for the plaintiff to provide civil engineering services for the development of a senior housing project in Glastonbury. In April, 2004, the plaintiff commenced this action against the defendants, alleging that it had fully performed its obligations under the agreements and that the defendants had failed to make payment, despite a demand to do so.

In December, 2003, the individual defendant had commenced an action against SunAmerica Affordable Housing Partners, Inc. (SunAmerica), alleging breach of contract for the development of a housing project in Hartford and for the senior housing project in Glastonbury. The individual defendant alleged against SunAm-erica, in part: “In reliance upon the agreement, [the individual defendant] incurred significant development expense in preparing to acquire the property and commence construction thereon.” The action against SunAmerica was settled prior to trial.

At trial in the present action, the plaintiff sought to use the individual defendant’s allegation in the SunAm-erica complaint as an admission by the individual defendant that he is the party that benefited from the plaintiffs services. The plaintiff sought to use that admission to obtain a judgment against the individual defendant under the doctrine of unjust enrichment. The plaintiff seems to imply that the individual defendant took action in the name of the corporate defendant or in his name individually depending on the better situation for him personally.

Although the plaintiff was required to prove other facts to prevail on a claim of unjust enrichment, the resolution of this appeal turns on the question of which entity entered into the contract with SunAmerica for the development of the Glastonbury and Hartford projects—the individual defendant or the corporate defendant. Our review of the record discloses, however, that the plaintiff failed to place the SunAmerica contract into evidence or to offer other proof of it at trial. The court concluded that “[w]hat was said in the other lawsuit that was referenced . . . could have been filed for different purposes, for different considerations, as far as what was acknowledged in there . . . .”

“A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . .

“Furthermore, the determination of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion.” (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 194, 880 A.2d 945 (2005).

By not introducing the SunAmerica contract into evidence, the plaintiff failed to offer sufficient evidence to prove that the individual defendant had alleged that he had incurred expenses individually as the result of a contract entered into by the corporate defendant. The plaintiff, therefore, cannot prevail on its claim that the trial court was required to find that the individual defendant’s prior pleadings were an admission that the corporation’s expenses and benefits were attributable to him individually.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

MCDONALD, J.,

dissenting. I respectfully dissent. The plaintiff, James P. Purcell Associates, Inc., sued the defendants, J. Martin Hennessey, individually, and The Hennessey Company (Hennessey Co.), a corporation that Hennessey controlled. The plaintiff alleged in its complaint that the individual defendant, Hennessey, was unjustly enriched by $95,000, the amount owed to the plaintiff for engineering services provided on a Glastonbury senior housing project.

In support of its claim against Hennessey, the plaintiff produced undisputed evidence that Hennessey had personally sought money damages from SunAmerica Affordable Housing Partners, Inc. (SunAmerica), because Hennessey claimed, relying on SunAmerica’s agreement to provide funding for the Glastonbury senior housing development, that he personally “incurred significant development expenses . . . .” Thereafter, Hennessey received $80,000 for the withdrawal of that action, in which he claimed that SunAm-erica had withdrawn its funding without cause. It was also undisputed that the plaintiff was never paid for the development services it had provided on the project.

The trial court found in favor of Hennessey, relying on the existence of a contract for professional services that was entered into by the plaintiff with Hennessey Co., and not with Hennessey individually. Determining that “this case really has to rise or fall [on the basis of] what the particular specifics are pursuant to the contract in this case,” the court concluded that Hennes-sey was entitled to the protection of corporate limited liability.

On appeal, Hennessey’s principal argument is that the existence of a contract between two parties providing for an express remedy precludes the application of the doctrine of unjust enrichment. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 284, 649 A.2d 518 (1994); Pleines v. Franklin Construction Co., 30 Conn. App. 612, 616, 621 A.2d 759 (1993). In this case, the contract was between the plaintiff and Hennessey Co., and the contractual remedy was, as Hennessey argued, a claim against the corporation only.

As to the plaintiffs claim of unjust enrichment, the majority points out the plaintiffs failure to introduce evidence of the contract with SunAmerica. A review of the record, however, reveals that the plaintiff asked the trial court to take judicial notice of Hennessey’s complaint in the SunAmerica action. Hennessey did not object to the request, and the court expressly referred to the complaint in its decision. Therefore, I would conclude that the court took judicial notice of the complaint filed by Hennessey in the SunAmerica litigation. See Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003) (“[t]here is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties” [internal quotation marks omitted]); see also Montanaro v. Gorelick, 73 Conn. App. 319, 326 n.12, 807 A.2d 1083 (2002). The SunAmerica complaint alleged that Hennessey personally entered into a contract with SunAmerica pursuant to which SunAmerica agreed to fund the development.

It was undisputed that a law firm, an architecture firm and the plaintiff engineering firm were the only providers of development services for the project. Their development services resulted in the bills that Hennes-sey now claims were not personally incurred. By receiving a settlement in his personal capacity from SunAmerica based on the cost of work performed by the plaintiff for Hennessey Co. and not paid for, Hennessey unjustly received a benefit separate and distinct from the benefit conferred on Hennessey Co. See Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 651, 922 A.2d 1131 (2007). Accordingly, because the court’s actions were contrary to the undisputed evidence and were thus clearly erroneous, I would reverse the judgment as to Hennessey and order a new trial.

       The corporate defendant, The Hennessey Company, Inc., stipulated to a judgment against it in the amount of $95,234.29.

       See Perreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001); Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972) (complaint from companion case “admissible as an admission because it is a statement [made] by a party in a prior action to which he was also a party”).

       The plaintiff did not allege that the corporate veil should be pierced to reach the individual defendant.

       At trial, Hennessey Co. did not contest the plaintiffs claim for reimbursement.