text:
    GARY A. CHICATELL v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 35174)
    Robinson, Sheldon and Keller, Js.

      Argued May 20
    officially released August 20, 2013

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).
   Opinion

ROBINSON, J.

The defendant Administrator of the Unemployment Compensation Act appeals from the judgment of the Superior Court sustaining the appeal of the plaintiff, Gary A. Chicatell, from the decision of the Employment Security Board of Review (board), which upheld a denial of unemployment compensation benefits. On appeal, the defendant claims that the court improperly concluded that the board’s determination that the plaintiff had been discharged for deliberate misconduct in the course of his employment was unreasonable and arbitrary and that, in so concluding, it failed to give proper deference to the factual findings of the board. We agree and, accordingly, reverse the judgment of the trial court and remand the case to that court with direction to render judgment dismissing the plaintiffs appeal.

The following facts, found by the appeals referee and adopted by the board, and procedural history are relevant to our resolution of the appeal. Beginning on July 2, 2010, the plaintiff was employed by Securitas Security Services USA, Inc. (employer), as a part-time security officer. The employer’s policies are set forth in an employee handbook. The handbook provides in relevant part that employees are prohibited from leaving their posts without proper relief or authorization from their supervisor. Employees also are prohibited from falsifying company records, including time records. Violation of either of those policies is grounds for termination of employment, even for the first occurrence. The plaintiff signed an acknowledgement that he had received a copy of the policy handbook on July 1, 2010.

On February 14,2011, the plaintiff asked the employer for permission to leave his post early after he received a telephone call at work from his mother indicating that his father was dying. The employer granted the request, but more than an hour elapsed before the employer found a replacement for the plaintiff, and, as a result, his father passed away before the plaintiff could reach his bedside.

On April 29, 2011, the plaintiff received a telephone call at work from his wife. She informed the plaintiff that his mother had called their home and that his mother was upset and needed to talk to him. Because of his displeasure with the way his employer had handled the previous situation with his father, the plaintiff, who was scheduled to work that day until 8 p.m., left his post at 7:15 p.m., without notifying his employer or asking for permission to leave his post. The manager of the building where the plaintiff was posted called the employer at 7:25 p.m. to inform it that the plaintiff had left his post at 7:15 p.m. The employer contacted the plaintiff at home. He admitted that he had left his post without proper authorization to deal with a personal matter.

On May 2,2011, the plaintiff met with Jordan Dolger, a human resource manager for the employer. The plaintiff admitted to Dolger that he knew the employer’s policy prohibiting employees from leaving their posts without authorization from a supervisor and that he had left his post early on April 29, 2011, without authorization, because he needed to deal with a personal matter. When asked by Dolger what departure time he had recorded on his time record, the plaintiff indicated that he had written 8 p.m., explaining that, when he arrived for work, he always recorded both his arrival and anticipated departure times. Dolger explained that this practice of dating his time in advance was a violation of the employer’s policy prohibiting the falsification of company records. Although the plaintiff had never been disciplined previously by the employer, it was the employer’s practice always to terminate the employment of any employee who violated the policies prohibiting leaving a post without authorization and falsification of time records. The plaintiffs employment was terminated on May 3, 2011.

Following his termination, the plaintiff filed for unemployment insurance benefits. The defendant determined that the plaintiff was disqualified from receiving benefits because he had been discharged for wilful misconduct in the course of his employment in accordance with General Statutes § 31-236 (a) (2) (B). The plaintiff appealed that decision.

An appeals referee heard the appeal on June 28,2011. The appeals referee issued a decision on June 30, 2011, affirming the defendant’s determination and dismissing the appeal. In discussing the plaintiffs decision to leave his post without authorization, the referee stated in relevant part: “The [plaintiff] testified that his mother was ‘going ballistic.’ However, he refused to specify what was bothering his mother; the [plaintiff] testified that this was ‘personal.’ Therefore, the referee finds that the [plaintiff] has not provided sufficient evidence to demonstrate a compelling circumstance that would have prevented him from complying with the policies on April 29, 2011.”

The plaintiff filed a timely appeal from the decision of the appeals referee to the board. After reviewing the record, including the recording of the referee’s hearing, the board issued a decision on September 28, 2011, in which it adopted the referee’s findings as its own, affirmed the referee’s decision that the plaintiff was disqualified from receiving benefits, and dismissed the appeal. The board concluded in relevant part: “Walking off the job is an act of deliberate misconduct in wilful disregard of the employer’s interests, unless there are mitigating circumstances or an employee walked off the job in the midst of an emotional confrontation. . . . The employer discharged the [plaintiff] after he left work forty-five minutes early to respond to a [tele]-phone call from his mother. The [plaintiff] has not established that the [tele]phone call constituted an emergency on that particular night. Since the [plaintiff] in the case before us has not cited any circumstances which we would find sufficient to excuse his walking off the job on April 29, 2011, we conclude that the [plaintiff] was discharged for deliberate misconduct in the course of his employment.” (Citation omitted.)

The plaintiff appealed from the board’s decision to the Superior Court. The plaintiff did not file a motion to correct the board’s findings. See Practice Book § 22-4. The court rendered judgment sustaining the plaintiffs appeal, stating that it “disagree[d] with the conclusion reached by the [b]oard” that the plaintiff had failed to establish that the telephone call constituted an emergency or to cite any circumstances sufficient to excuse his walking off the job. The court found that the board’s conclusion was “unreasonable and arbitrary and not supported based on the uncontradicted testimony of the [plaintiff] as stated hereinbefore. It is not a reasonable conclusion based on the facts submitted.” The “uncon-tradicted testimony” referred to by the trial court consisted of statements included on the plaintiffs appeal forms to the board and to the court, not testimony by the plaintiff at the hearing before the appeals referee. This appeal followed.

The defendant claims that the court erred in determining that the board’s conclusions were unreasonable, arbitrary, and unsupported by the evidence. Specifically, the defendant argues that the factual findings adopted by the board support a conclusion of wilful misconduct, that the board was not unreasonable or arbitrary in applying the statutory definition of wilful misconduct to the facts of this case, and that “[t]he court plainly disregarded, in the absence of a motion to correct, the [b]oard’s findings of fact and conclusions of law.” We agree on the basis of our review of the record that the court exceeded its limited role on review, disregarded the facts as found by the appeals referee and adopted by the board, and improperly substituted its own judgment for that of the board on the basis of factual statements by the plaintiff that were outside the scope of its review.

“[A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by [General Statutes] § 31-249b. ... In appeals under ... § 31-249b, the Superior Court does not retry the facts or hear evidence but rather sits as an appellate court to review only the record certified and filed by the board .... Practice Book § 519 [now 22-9]. The court is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board . . . adopted the findings and affirmed the decision of the referee. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in fight of the evidence, the board . . . has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) Addona v. Administrator, Unemployment Compensation Act, 121 Conn. App. 355, 360-61, 996 A.2d 280 (2010). “[T]he court may not substitute its own conclusions for those of the administrative board . . . .” (Internal quotation marks omitted.) Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 266, 274, 22 A.3d 675 (2011). Further, it bears repeating that “[i]n the absence of a motion to correct the findings of the board, the court is not entitled to retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.” (Internal quotation marks omitted.) Id., 275, citing Practice Book § 22-9 (a).

General Statutes § 31-236 provides in relevant part: “(a) An individual shall be ineligible for benefits . . . (2) . . . (B) if, in the opinion of the administrator, the individual has been discharged or suspended for . . . wilful misconduct in the course of the individual’s employment . . . “Wilful misconduct” is defined as “deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . General Statutes § 31-236 (a) (16). Section 31-236-26a of the Regulations of Connecticut State Agencies provides in relevant part that in order to have engaged in deliberate misconduct in wilful disregard of the employer’s interest, the defendant must find that when the individual engaged in the act of deliberate misconduct “he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer’s expectation or interest.” It is the plaintiffs failure to establish any such mitigating circumstances that is at issue.

The plaintiff had an opportunity at the de novo hearing before the appeals referee to explain the circumstances behind his mother’s telephone call to his wife on the day he left his post. The appeals referee made a finding that the plaintiff refused to provide any such explanation other than to say that his mother was “ ‘going ballistic’ ” and that the reasons were “ ‘personal.’ ” As a result, the appeals referee found that the plaintiff had provided insufficient evidence “to demonstrate a compelling circumstance that would have prevented him from complying with the policies [of his employer].” The board’s conclusion that the plaintiff had failed to establish that the telephone call constituted an emergency or that other circumstances excused his decision to leave work forty-five minutes early was supported by and consistent with the appeals referee’s findings.

In “disagreeing” with the board’s conclusion that the plaintiff had failed to establish an emergency or other compelling circumstance, the court relied on and accepted as true assertions made by the plaintiff on his appeal forms to the board and to the court that sought to explain his decision to leave work without authorization. Those statements, however, were not part of the factual record that the court should have considered in reviewing the board’s decision. The court had no authority to try the matter de novo; yet, by considering the plaintiffs statements as “uncontradicted testimony,” the court essentially found facts and substituted them for those of the appeals referee and the board, which exceeded the court’s limited scope of review. See Ray v. Administrator, Unemployment Compensation Act, 133 Conn. App. 527, 534, 36 A.3d 269 (2012) (“court erred by accepting as true facts that the board did not find and by basing its conclusions on those facts”). On the basis of the certified record, we cannot conclude that the board acted unreasonably, arbitrarily, illegally or in abuse of its discretion in determining that the plaintiff engaged in wilful misconduct and therefore was not entitled to unemployment benefits.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       The plaintiffs employer, Securitas Security Services USA, Inc., also was named as a defendant but is not involved in this appeal. We therefore refer in this opinion to the Administrator of the Unemployment Compensation Act as the defendant.

       The plaintiff participated in the hearing by telephone, and Dolger participated on behalf of the employer.

       Because the plaintiff failed to file a timely appellee’s brief, and disregarded an order requesting that he do so by March 5, 2013, and did not appear for oral argument before this court, we considered the appeal on the basis of only the record and the defendant’s brief and oral argument.

       Practice Book § 22-9, titled “Function of the Court,” provides: “(a) [Unemployment compensation] appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. In addition to rendering judgment on the appeal, the court may order the board to remand the case to a referee for any further proceedings deemed necessary by the court. The court may remand the case to the board for proceedings de novo, or for further proceedings on the record, or for such limited purposes as the court may prescribe. The court may retain jurisdiction by ordering a return to the court of the proceedings conducted in accordance with the order of the court, or may order final disposition. A party aggrieved by a final disposition made in compliance with an order of the superior court may, by the filing of an appropriate motion, request the court to review the disposition of the case.
      “(b) Corrections by the court of the board’s finding will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence.”

       On his appeal form to the board, the plaintiff stated that he continued to suffer from severe emotional distress and guilt from having been unable to leave work to be at his father’s bedside before he died, that his mother, who now relied upon him for support, had complained that his work was more important to him than being with his father when he died, that upon learning that his mother was extremely distraught, he was worried about her and did not want to “let her down again,” and that although he knew it was wrong to leave his post that night, he “could not deal with calling in and being told that [he] could not leave.” He further stated that although he understood his employer’s decision to terminate his employment, he believed that withholding his unemployment benefits was “like adding insult to injury.” On his appeal form to the Superior Court, the plaintiff tried to provide a “response to the question raised by the [board] regarding the nature of the emergency . . . The plaintiff stated that when his mother had called she was “ranting, talking irrationally and not making any sense, very much out of character for her.” He claimed that he was not sure whether she was having a medical emergency, perhaps a stroke, or was just distraught, but he knew that something was wrong and that she needed help. He concluded: “Though she did not have a medical emergency and I was able to calm her down, it was a frightening experience. My family and I determined that she should not be left alone until she was stronger and my sister took her to California to live with her for several months.”


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SHARAD SAKSENA v. COMMISSIONER OF CORRECTION
    (AC 33646)
    DiPentima, C. J., and Sheldon and Harper, Js.

      Argued April 24
    officially released August 20, 2013

      Elio C. C. Morgan, assigned counsel, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Sharad Saksena, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court erred when it concluded that trial counsel did not render ineffective assistance by failing to advise him about the immigration consequences of his guilty pleas. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner is a citizen of India. During the time period from June, 2004, to July, 2005, the petitioner was operating a company payroll system that, as part of its function, was taking money from clients to pay sales tax to the Department of Revenue Services on a quarterly basis. In two separate cases, the state alleged that the petitioner failed to forward money to the department in an aggregate amount exceeding $100,000. On January 10, 2007, the petitioner pleaded guilty under the Alford doctrine to two charges of larceny in the first degree pursuant to General Statutes § 53a-122. Thereafter, he was sentenced on these charges to a total effective term of ten years incarceration, suspended after three years, followed by five years probation. He also was ordered to pay $100,000 in restitution. On March 17, 2008, while in the custody of the respondent, the Commissioner of Correction, the petitioner filed a petition for a writ of habeas corpus. Following his release from prison, the petitioner was taken into custody by the United States Bureau of Immigration and Customs Enforcement and placed in a correctional facility in Massachusetts. On the basis of his conviction, he was ordered to be removed from the United States.

Thereafter, the petitioner filed an amended two count petition for a writ of habeas corpus, dated February 17, 2011. In count one, the petitioner alleged that his trial counsel, Philip Fazzone, had rendered ineffective assistance of counsel with respect to the guilty pleas by failing to advise him about the immigration consequences of those pleas, most importantly, that they would subject him to mandatory removal from the United States. In count two, the petitioner alleged that because he did not understand that his guilty pleas would subject him to mandatory removal from the United States, they were not entered knowingly, intelligently and voluntarily, and, thus, they were obtained in violation of his due process rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. On June 2, 2011, the habeas court, T. Santos, J., rendered an oral decision denying the petitioner’s amended habeas petition. This appeal followed.

The petitioner claims that the habeas court erred when it concluded that trial counsel did not render ineffective assistance by failing to advise him about the immigration consequences of the guilty pleas. “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, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“Moreover, [i]n Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard. . . . [I]n order to satisfy the prejudice requirement, the [petitioner] must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Citation omitted; internal quotation marks omitted.) Niver v. Commissioner of Correction, 101 Conn. App. 1, 3-4, 919 A.2d 1073 (2007).

In his brief, the petitioner argued that, pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), he was entitled to accurate and specific advice regarding the immigration consequences of his guilty pleas because deportation in his case was a certainty, but trial counsel failed to render such advice. The petitioner further argued that because trial counsel failed to advise him about the immigration consequences of the guilty pleas, the pleas cannot be found to have been entered knowingly, intelligently and voluntarily. We disagree.

This court has previously indicated that “[a] defendant need only be made aware of the direct consequences of his plea for it to be valid. . . . Our Supreme Court has explained that [although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense. . . . [U]nder Connecticut law, [t]he impact of a plea’s immigration consequences on a defendant, while potentially great, is not of constitutional magnitude and cannot transform this collateral consequence into a direct consequence of the plea.” (Citation omitted; internal quotation marks omitted.) Niver v. Commissioner of Correction, supra, 101 Conn. App. 4; see also State v. Aquino, 89 Conn. App. 395, 403-404, 873 A.2d 1075 (2005), rev’d on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006).

Along these lines, this court has specifically indicated that, “[w]hile the [s]ixth [a]mendment [to the United States constitution] assures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to collateral aspects of the prosecution. . . . [I]n Connecticut, immigration consequences are collateral consequences of a guilty plea. Accordingly, the failure to advise as to that collateral consequence does not constitute deficient assistance.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Aquino, supra, 89 Conn. App. 406-407. More particularly, this court has concluded, “effective assistance of counsel may be rendered without advising a client whether deportation will result from a guilty plea.” Id., 410.

The United States Supreme Court recently concluded, however, that the sixth amendment to the United States constitution requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. See Padilla v. Kentucky, supra, 559 U.S. 356. In doing so, the court concluded that “[t]he collateral versus direct distinction is ... ill suited to evaluating a Strickland claim concerning the specific risk of deportation. . . . [A]dvice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id., 366. “When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.” (Footnote omitted.) Id., 369.

Notwithstanding Padilla, subsequent to the filing of the petitioner’s brief, in Chaidez v. United States, U.S. , 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149 (2013), the United States Supreme Court concluded that Padi-Ua does not have retroactive effect. In his supplemental brief, the petitioner acknowledged that, pursuant to Chaidez, Padilla does not apply to this case. We agree. Given that the petitioner pleaded guilty to two charges of larceny in the first degree in 2007, and the United States Supreme Court rendered its decision in Padilla in 2010, Padilla did not require trial counsel to advise the petitioner about the risk of deportation arising from the guilty pleas. See State v. Aquino, supra, 89 Conn. App. 410 (controlling authority at time of petitioner’s guilty pleas indicated “effective assistance of counsel may be rendered without advising a client whether deportation will result from a guilty plea”).

Notwithstanding the inapplicability of Padilla to this case in light of Chaidez, the petitioner argues in his supplemental brief that Chaidez itself does not control the broader question as to whether he entered his guilty pleas knowingly, intelligently and voluntarily pursuant to the due process clauses of the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Such an argument is without merit. Niver and Aquino, which apply to all guilty pleas entered prior to Padilla, held that the failure to inform a defendant as to the immigration consequences of a plea does not render that plea unintelligent or involuntary in a constitutional sense. Because we remain bound by these cases at this time, we reject this claim.

Accordingly, we conclude that the habeas court did not err when it determined that trial counsel did not render deficient performance.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also claims that the habeas court erred when it proceeded to trial without him present in contravention of his due process rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, Practice Book § 23-40, and General Statutes § 52-470. For reasons set forth in this opinion, we conclude that any error by the habeas court in proceeding to trial without the petitioner present was harmless.

       See North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The habeas court granted the petition for certification to appeal.

       We recognize, however, that General Statutes § 54-lj (a) requires the trial court to canvass the petitioner about the immigration consequences of his guilty pleas. “[T]he statute’s purpose is simply to recognize that this collateral consequence is of such importance that the defendant should be informed of its possibility.” (Internal quotation marks omitted.) State v. Irala, 68 Conn. App. 499, 520, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002). Nevertheless, to the extent that anything in the petitioner’s brief or supplemental brief could be construed as a challenge to the trial court’s canvass, we note that the petitioner failed to cite § 54-lj and wholly failed to provide any analysis with respect to the court’s canvass. Therefore, we decline to address any argument with respect to the court’s canvass as inadequately briefed. See Riddick v. Commissioner of Correction, 113 Conn. App. 456, 469, 966 A.2d 762 (2009) (“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]), appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011).


author: ROBINSON, J.

text:
    NEW LONDON COUNTY MUTUAL INSURANCE COMPANY v. KARLEEN ZACHEM ET AL.
    (AC 34538)
    Robinson, Alvord, and Pellegrino, Js.

      Argued March 13
    officially released August 20, 2013

      Theodore W. Heiser, with whom was Catherine H. Heiser, for the appellants (defendants).

      Susan L. Miller, with whom, on the brief, was Margaret A. Casey, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendants, Karleen Zachem and Phyllis Knutson, appeal from the trial court’s declaratory judgment holding that the plaintiff, New London County Mutual Insurance Company, has no duty to provide coverage under an insurance policy with the defendants for a claimed loss arising from an explosion and fire. The defendants claim that the court improperly concluded that their loss was excluded from coverage under a vandalism exception in the policy based on its erroneous determinations that (1) the defendants’ property had been vacant for more than thirty consecutive days at the time of the explosion and fire, and (2) an “ensuing loss” provision in the policy was inapplicable as an alternative basis for coverage. We affirm the judgment of the trial court.

We first set forth the following procedural history and relevant facts, which either are undisputed or were found by the trial court. The defendants are the owners of real property located on Route 2 in Preston (premises). A single family house and a freestanding garage were located on the premises; the defendants maintained the house as a rental property. The plaintiff issued an insurance policy to the defendants that included coverage for the house and the garage. The section of the insurance policy entitled “Perils Insured Against,” provides in relevant part: “We insure against risk of direct loss to property described in Coverages A [Dwelling] and B [Other Structures] only if that loss is a physical loss to property.” Following that provision is a list of exceptions to coverage, which provides in relevant part: “[W]e do not insure loss . . . caused by . . . vandalism and malicious mischief, theft or attempted theft if the dwelling has been vacant for more than [thirty] consecutive days immediately before the loss” (vandalism exception). The policy also contains the following provision related to the list of exceptions to coverage, including the vandalism exception: “[A]ny ensuing loss to property described in Coverages A and B not excluded or excepted in this policy is covered” (ensuing loss provision). The policy does not contain definitions for the terms “vacant” or “ensuing loss.”

A property loss occurred at the premises on September 11, 2008, while the insurance policy between the parties was in full effect. An unidentified intruder stole copper pipes from the house, including breaking and removing a copper propane gas line that led to a clothes dryer in the basement of the house. The basement filled with propane gas, which ultimately exploded and caused a fire that destroyed the house.

No one had resided at the house since July, 2007, although Peter Knutson periodically visited to do remodeling or maintenance work. He also stored equipment and materials related to his fencing business in the unattached garage. No one was living at the house at the time of the claimed loss, and the house was not suitable for habitation at that time. The fire marshal who investigated the fire reported that the house did not show any signs of recent occupation at the time of the gas explosion.

The defendants filed a claim for coverage of their loss with the plaintiff. The plaintiff took the position that, pursuant to the terms of the policy, it was not liable because the claimed loss was caused by vandalism or theft, and the subject premises had been vacant for more than thirty consecutive days immediately preceding the loss. The plaintiff then filed this declaratory judgment action asking the court for a ruling that it had no duty to provide coverage for the defendants’ claimed loss arising from the September 11, 2008 explosion and fire. The parties filed cross motions for summary judgment, which the court denied. The matter proceeded to a one day trial to the court, following which the court asked for supplemental briefing.

On March 29, 2012, the court issued a memorandum of decision. The court found on the basis of relevant case law and the evidence presented that the subject premises had been vacant for more than thirty consecutive days at the time of the explosion and fire and, accordingly, that the defendants’ loss fell squarely within the vandalism exception in the insurance policy. The court also rejected the defendants’ argument that the explosion and fire was an “ensuing loss” and, thus, a covered loss under the policy despite the vandalism exception. The court determined that the defendants failed to meet their burden of establishing that the policy's ensuing loss provision was applicable in the present case. The court rendered a declaratory judgment holding that the plaintiff was not liable for the loss suffered by the defendants. This appeal followed.

“The general principles that guide our review of insurance contract interpretations are well settled. [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract. ... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms. . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. . . .

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.” (Internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 309 Conn. 1, 9-10, 68 A.3d 1121 (2013).

“Finally, a trial court’s resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard. . . . Such a finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [A] finding 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.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 90, 961 A.2d 387 (2009).

I

The defendants first claim that the court concluded that their loss was excluded from coverage pursuant to the policy’s vandalism exception on the basis of an erroneous determination that their house had been vacant for more than thirty consecutive days at the time of the claimed loss. In particular, the defendants argue that the term “vacant” as used in the policy’s vandalism exception is ambiguous and that in determining whether the subject premises was vacant, the court applied an overly restrictive definition that was inconsistent with the parties’ intent. We do not agree.

To determine the common, natural, and ordinary meaning of an undefined term, it is proper to turn to the definition found in a dictionary. See DeCarlo & Doll, Inc. v. Dilozir, 45 Conn. App. 633, 648-49, 698 A.2d 318 (1997). Random House Webster’s Unabridged Dictionary defines “vacant” as “having no contents; empty” and, with regard to a dwelling specifically, as “having no tenant and devoid of furniture, fixtures.” Random House Webster’s Unabridged Dictionary (2d Ed. 2001). Similarly, Webster’s Third New International Dictionary defines “vacant” as that term pertains to premises as “premises which are not lived in and from which the furniture and fixtures have been removed.” Webster’s Third New International Dictionary (2002). As noted by the trial court, Black’s Law Dictionary defines “vacant” as generally meaning “empty; unoccupied.” Black’s Law Dictionary (9th Ed. 2009). Although no appellate court in this state has had the opportunity to construe the term “vacant” in the context of an insurance policy exception to coverage, our research reveals that courts in other jurisdictions that have considered the very issue now before us have applied a definition very similar to the definition applied by the trial court, and which, although not binding on this court, we find persuasive and consistent with the aforementioned dictionary definitions. See, e.g., American Mutual Fire Ins. Co. v. Durrence, 872 F.2d 378, 379 (11th Cir. 1989) (loss excluded from coverage under vacancy clause of homeowner’s policy because house “lacked amenities minimally necessary for human habitation”); Estes v. St. Paul Fire & Marine Ins. Co., 45 F. Supp. 2d 1227, 1230 (D. Kan. 1999) (holding in context of dwelling insurance policy exclusion for vandalism that “plain and ordinary meaning of ‘vacant’ is that the structure is not lived in and lacks the basic amenities for human habitation”).

The defendants contend that a layperson would not have understood that the vacancy exclusion could be in effect when Peter Knutson was making daily visits to the premises, mostly to the garage for business related activities, but sometimes to conduct maintenance activities around the house. The defendants urge us to adopt a definition such that a dwelling could be deemed “vacant” only upon a complete abandonment of the entire premises, in effect substituting the term “abandoned” for “vacant.” That, however, would not comport with the dictionary definitions of vacant as set forth previously. Further, adopting the defendants’ definition would require us to ignore or to render superfluous other language in the policy, which we cannot do. See R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 468-69, 870 A.2d 1048 (2005).

The vandalism exception expressly provides that losses caused by vandalism or theft are not covered “if the dwelling has been vacant for more than [thirty] consecutive days.” (Emphasis added.) The “dwelling” is described in the policy as the structure used principally for dwelling, meaning the house, including any attached structures. The defendants’ garage is unattached and, thus, not part of the dwelling. Peter Knut-son’s daily visits to the garage in support of his fencing business as well as his upkeep of the land surrounding the garage and house only would be relevant to a consideration of whether the dwelling was vacant if we were to substitute the word “premises” for the word “dwelling,” which we cannot do. See R.T. Vanderbilt Co. v. Continental Casualty Co., supra, 273 Conn. 468-69. We further note that common sense suggests that although a dwelling might for different periods of time become vacant and then later reoccupied and refurnished, a property that has been abandoned outright by an insured likely would remain so, negating any need for, and, thus, rendering superfluous, the qualifying language in the policy that the dwelling be vacant “for more than [thirty] consecutive days.”

Viewed in context of the policy as a whole, we conclude that the term “vacant” as used in the vandalism exception is susceptible to only one reading and, therefore, is not ambiguous. Consistent with the intent of the parties, a vacant dwelling is one that is unoccupied and does not contain items ordinarily associated with habitation, such as furniture, fixtures or personal property. The definition of “vacant” applied by the court was therefore legally and logically correct. Having so concluded, we are left to consider only whether the court’s finding that the defendants’ house had been vacant for more than thirty consecutive days prior to the claimed loss is supported by the record. We conclude that it is.

It is undisputed that no one had lived in the house for more than a year prior to the claimed loss. Thus, it was unoccupied during the relevant time period. Further, the court expressly found that “the dwelling did not contain any items suitable for habitation.” The defendants do not challenge that factual finding on appeal. Although the court does not expressly find that the house lacked items ordinarily associated with habitation for more than thirty days prior to the claimed loss, that finding is implicit, and the defendants do not raise any argument to the contrary. Accordingly, we conclude that the court’s finding that the house was vacant for more than thirty days prior to the loss at issue is amply supported by the record.

II

The defendants also claim that the court erred in concluding that the defendants had failed to establish that the ensuing loss provision of their policy was applicable to their claim thus removing it from the policy’s vandalism exception. Specifically, the defendants assert that in considering their ensuing loss claim, the court applied an improper proximate cause analysis that was first set forth in Sansone v. Nationwide Mutual Fire Ins. Co., 47 Conn. Supp. 35, 39-41, 770 A.2d 500 (1999), aff'd, 62 Conn. App. 526, 527, 771 A.2d 243 (2001) (concluding trial court analysis was “consistent with our applicable law and precedents” and adopting court’s “well reasoned decision”). The plaintiff argues that the court correctly determined that the policy’s ensuing loss provision did not apply, arguing that “the ensuing loss provision only applies when an excluded peril sets in motion a covered peril, and the trial court determined as a factual matter that all of the damage to the dwelling was caused by the excluded peril of vandalism, malicious mischief, and theft. Thus, there [was] no second, covered peril to trigger the ensuing loss provision.” For the following reasons, we find no error with the court’s conclusion that the defendants’ claim was not entitled to coverage under the policy’s ensuing loss provision.

In their appellate brief, the defendants engage in an elaborate analysis of how courts correctly should interpret and apply ensuing loss provisions found in insurance policies and why the legal analysis employed by the court in Sansone v. Nationwide Mutual Fire Ins. Co., supra, 47 Conn. Supp. 35, which was relied on and followed by the court in the present case, was incorrect. Although we find merit in much of the defendants’ discussion of the issue, we nevertheless are bound, as was the trial court, to follow the legal framework established in Sansone.

In Sansone, the plaintiff homeowners filed an action against their homeowners insurance provider claiming that the defendant insurer had breached the contract of insurance and had acted in bad faith by not paying for certain damages to the covered residence after a wall collapsed. Id., 35. The insurer filed an answer, special defense, and later a motion for summary judgment, arguing that the homeowners’ claimed loss was caused by termites and that insect infestation was excepted from coverage under the policy at issue. Id., 35-36. The homeowners did not dispute that there was damage caused by termites to a header beam, floor joist and wall studs near a doorway between the living room and an enclosed porch of their dwelling, but claimed that damage to other areas of the house were not actually caused by the termites but by the resulting restoration necessary to return the house to its original condition and that that damage constituted an ensuing loss that was not excluded from coverage. Id., 36.

The court, in deciding in favor of the insurer on its motion for summary judgment, noted that “[i]n construing the policy, [it] must determine whether the loss was ‘caused’ by insects and thus excluded or if the loss is an ensuing loss that is not excluded.” Id., 38. It next noted that “[t]he policy excludes ‘direct physical loss’ to the premises ‘caused’ by insect infestation. It is well settled that the words ‘direct cause’ ordinarily are synonymous in legal intendment with ‘proximate cause,’ a rule applicable to causes involving the construction of an insurance policy.” Id.

The court concluded that the homeowners could not recover “for direct physical loss if the losses were proximately caused by insect infestation.” Id., 38-39. The court reasoned: “In the determination [of] whether a loss is within an exception in a policy, where there is a concurrence of two causes, the efficient cause—the one that sets the other in motion—is the cause to which the loss is to be attributed, though the other cause may follow it and operate more immediately in producing the disaster. . . . [W]hat is meant by proximate cause is not that which is last in time or place, not merely that which was in activity at the consummation of the injury, but that which is the procuring, efficient, and predominant cause. . . . Proximate cause has been defined as [a]n actual cause that is a substantial factor in the resulting harm. . . . [The homeowners] appear to argue that their losses were not caused by the insects themselves, but by the fact that the dwelling was damaged in order to access and repair the insect damage. There was, however, no aggravating activity or event that caused their additional losses other than those losses arising from the repairs necessitated by the damage caused by the insect infestation. Therefore, these losses were proximately caused by the insect infestation . . . .” (Internal quotation marks omitted.) Id., 39.

The Appellate Court panel that considered the homeowners’ appeal in Sansone adopted the legal analysis of the trial court as being well reasoned and consistent with the law in this state. Sansone v. Nationwide Mutual Fire Ins. Co., supra, 62 Conn. App. 527. Accordingly, we are bound by the reasoning of Sansone. As we have clarified on a number of occasions, “this court’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc. Before a case is assigned for oral argument, the chief judge may order, on the motion of a party or suo moto, that a case be heard en banc. Practice Book § 70-7 (a).” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). The defendants in the present case did not ask this court to hear their appeal en banc for the purpose of reversing our decision in Sansone. Because Sansone remains good law, we cannot attribute error to the trial court’s utilization of the proximate cause analysis set forth therein in considering whether the defendants’ claimed loss was caused by the vandalism and theft of the copper pipes or instead was an ensuing loss.

In applying the Sansone holding to the facts of the present case, the court stated: “[T]he fire investigator’s report concluded that the ‘fire and explosion were a direct result from the intentional act of removing the copper propane lines.’ Pursuant to the rationale discussed in the Sansone decision, the efficient cause of the explosion is the removal of the copper propane lines, which constitutes ‘the cause to which the loss is to be attributed,’ although the ‘other cause,’ here, the spark from the water heater, ‘may follow it and operate more immediately in producing the disaster.’ Sansone v. Nationwide Mutual Fire Ins. Co., supra, 47 Conn. Supp. 39. The spark that set [off] the explosion does not constitute a separate and independent hazard from which the defendants’ loss ensued. The defendants have not carried their burden of establishing that the ‘ensuing loss’ exception is applicable in the present case.” The defendants have raised no claim of error as to the trial court’s application of the Sansone holding to the facts of this case, contending only that the Sansone holding was legally flawed and should not have formed the basis for the trial court’s decision. “It is fundamental that the scope of appellate review in a given appeal is defined by the claims of error actually raised by the parties. Our Supreme Court consistently has admonished this court for stepping beyond that threshold. As it recently stated, [w]e long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed.” (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844, 849 n.2, 939 A.2d 1249 (2008). Accordingly, we will not engage in further review of the court’s decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       It is not disputed that the house is property described in Coverage A and that the unattached garage is property described in Coverage B.

       It is not disputed that the breaking and removing of copper pipes from the house was an act of vandalism or theft as those terms are used in the policy’s vandalism exception.

       The record reveals that after the last tenant moved out, the defendants began refurbishing the house with the intent to list it for sale.

       Peter Knutson is Phyllis Knutson’s husband and Karleen Zachem’s father.

       In addition to considering the dictionary definition, the court analogized on the basis of our case law holding that commercial property is not “vacant” if items of substantial value remained on the premises; see Bishop’s Comer Associates Ltd. Partnership v. Service Merchandise Co., 45 Conn. Supp. 443, 453-54, 720 A.2d 531 (1997), aff'd, 247 Conn. 192, 718 A.2d 966 (1998); that a dwelling is vacant when it does not contain “any items suitable for habitation.” Because our review of the meaning of the term “vacant” as used in the policy is de novo, we need not consider the propriety of the court’s analogy, although we note that it comports with the dictionary definitions suggesting that a “vacant” house is one that is devoid of furniture and fixtures.

       The vandalism exception provides that “[a] dwelling being constructed is not considered vacant.” Although the defendants state in their brief that during the period that the house was unoccupied, Peter Knutson performed “refurbishing work on the interior of the house,” the defendants never argued that the house was not vacant for the thirty days prior to the explosion because it was “being constructed.”

       Even if they had challenged the finding, our review of the record reveals that the court’s finding is amply supported by testimony from the fire marshal who investigated the explosion, as well as from Peter Knutson and the defendants. The testimony established that, at all relevant times, the house was without any furniture, including bedding, that it did not have a stove or refrigerator, that there was no personal property in the house and that the first floor toilet was not connected.

       Our review of the record also reveals that, with respect to the contents of the house, Phyllis Knutson testified that it was in the same condition in terms of content for more than thirty days prior to the explosion.

       The ensuing loss provision at issue in Sansone was very similar to the one at issue in the present appeal. The policy in Sansone covered the homeowners’ dwelling and provided in a section titled “Perils Insured Against,” that the policy “cover[s] direct physical loss to property . . . except that caused by . . . birds, vermin, rodents, insects or domestic animals.” (Internal quotation marks omitted.) Sansone v. Nationwide Mutual Fire Ins. Co., supra, 47 Conn. Supp. 37-38. As to that and several other exceptions from coverage, the policy later provided that “any ensuing loss not excluded is covered.” (Internal quotation marks omitted.) Id.


author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. JONATHAN BROWN
    (AC 33696)
    Gruendel, Robinson and Borden, Js.
    Argued March 5
    officially released August 27, 2013

      David V. DeRosa, assigned counsel, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Marc G. Ramia, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Jonathan Brown, appeals from the judgment of conviction, rendered by the trial court, of assault in the third degree of an elderly person in violation of General Statutes § 53a-61a and the judgment finding him in violation of his probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that the court (1) improperly failed to sentence him in accordance with the conditions of a Garvin agreement; and (2) violated his right to due process by failing to provide an evidentiary hearing on whether he breached such agreement. We affirm the judgments of the trial court.

Following a domestic dispute, the defendant was charged with assault in the third degree in violation of General Statutes § 53a-61, assault in the third degree of an elderly person in violation of § 53a-61a, interfering with an officer/resisting arrest in violation of General Statutes § 53a-167a, threatening in the second degree in violation of General Statutes § 53a-62, breach of the peace in the second degree in violation of General Statutes § 53a-181, disorderly conduct in violation of General Statutes § 53a-182, and two counts of violation of probation in violation of § 53a-32. The defendant and the court then entered into a Garvin agreement pursuant to which he pleaded guilty to assault in the third degree of an elderly person and admitted to two counts of violation of probation. Ultimately, the court found that the defendant had violated the Garvin agreement and sentenced him to eighteen months incarceration on the charge of assault in the third degree of an elderly person and on one count of violation of probation. This appeal followed.

The defendant’s compliance with the conditions of the Garvin agreement would have resulted in a fully suspended sentence and a different conviction, namely, assault in the third degree in violation of § 53a-61, instead of assault in the third degree of an elderly person in violation of § 53a-61a. Thereafter, the court determined that the defendant violated the Garvin agreement by failing to abide by the rules and regulations of Evolve—a fifty-two session behavior modification program for male offenders of domestic violence. Accordingly, the defendant was sentenced to eighteen months imprisonment.

The record reveals the following undisputed facts and procedural history. At the plea hearing on October 9, 2009, the state set forth the conditions of the Garvin agreement, including the requirement that the defendant “complete the Evolve program.” The court, A. Hadden, J., in approving the proposed Garvin agreement, clarified its terms, expressly stating, “should you fail to complete the Evolve program, should you violate any of the rules and regulations of that program . . . the court [could] impose the sentence of twenty-seven months to serve with a one year mandatory minimum sentence.” (Emphasis added.) In the subsequent months, the defendant accrued multiple unexcused absences from the Evolve program despite the court’s frequent reminders to comply with its rules and regulations.

For instance, on February 19, 2010, when defense counsel reported that the defendant had accrued one unexcused absence, Judge Hadden warned him, “[m]ake sure you comply with the requirements of the program, sir.” Thereafter, the defendant accrued three additional unexcused absences and was suspended from the Evolve program. On April 30, 2010, the state filed a motion seeking to have the defendant sentenced on the basis of this suspension. Judge Hadden remarked that he was willing to sentence the defendant to the one year mandatory minimum, but continued the matter upon the defendant’s request.

Thereafter, at a hearing before the court, Connors, J., on July 16, 2010, the state accorded the defendant another opportunity to satisfy the conditions of the Garvin agreement through readmission into the Evolve program. Addressing the defendant, Judge Connors stated, “[y]ou have to abide by all of the program terms and conditions, including . . . attendance .... In the event that you are noncompliant you will be going to prison for twenty-seven months . . . .” The defendant indicated that he understood. At a subsequent hearing, the state reported that the defendant had accumulated two additional absences from the Evolve program. Judge Connors reminded him, “[m]ake sure you keep up with the classes . . . .”

On January 28, 2011, at a hearing before the court, Wahla, J., the state reported that the defendant once again had been suspended from the Evolve program, this time due to a fourth unexcused absence. Defense counsel noted that, in regard to the defendant’s third and fourth unexcused absences, the defendant was present at the meetings but issues arose concerning his conduct.

On February 4, 2011, the state moved for sentencing because of the defendant’s second suspension from the Evolve program for failure to comply with its rules and regulations. At a presentencing bond hearing, Judge Wahla read a letter, dated February 4,2011, detailing the factors leading to the defendant’s second suspension: “[The defendant] acknowledged to the male facilitator that he was drinking before . . . group. [The defendant] refused to leave the Evolve office at one point and made a nonverbal hand gesture toward the male facilitator as though he was pointing a gun at him. Over the course of [the defendant’s] time in the program he has been given several opportunities and chances to comply with the program rules.” The defendant attempted to explain the circumstances leading to this final absence, but did not request an evidentiary hearing on the matter.

Prior to sentencing, the defendant was readmitted into the Evolve program. At another presentencing hearing on March 25, 2011, Judge Wahla noted that the Evolve program had sent him a letter stating that the defendant had completed the program. The defendant did not request an evidentiary hearing regarding whether his completion of the Evolve program altered the state’s repeated contention that he had violated the Garvin agreement.

At sentencing on May 13, 2011, the state argued that the defendant’s frequent absences, resulting in two separate suspensions from the Evolve program, violated the Garvin agreement. Rather than requesting the twenty-seven month maximum, however, the state limited its sentencing request to twenty months, in recognition of the defendant’s eventual completion of the Evolve program. Defense counsel also recognized that the defendant’s history of absences from the Evolve program did not comport with the Garvin agreement, noting, “[t]his is somebody who unfortunately did pick up too many absences in the waning days of his program.” Nevertheless, defense counsel asked the court to consider the defendant’s ultimate completion of the Evolve program in rendering its sentencing decision; he did not, however, argue that the defendant had complied with the Garvin agreement. The court imposed a total sentence of eighteen months imprisonment, including the one year mandatory minimum sentence on the charge of assault in the third degree of an elderly person in violation of § 53a-61a, and six months on the charge of violation of probation in violation of § 53a-32.

I

The defendant first claims that the court improperly found that he violated the conditions of the Garvin agreement. Specifically, the defendant contends that he was not required to abide by the rules and regulations of the Evolve program, but instead, that he satisfied the agreement by ultimately completing the program. We disagree.

Our analysis of this claim is twofold. We first determine under plenary review whether the terms of the agreement required the defendant to comply with the Evolve program’s rules and regulations. See State v. Stevens, 278 Conn. 1, 7-8, 895 A.2d 771 (2006). Second, we determine whether the trial court’s finding that the defendant violated the Garvin agreement when he was twice suspended from the Evolve program was clearly erroneous. Id., 10.

We begin our inquiry by examining the terms of the Garvin agreement. “The validity of plea bargains depends on contract principles. . . . When the contract language relied on by the court is definitive, the interpretation of the contract is a matter of law and our review is plenary.” (Citations omitted; internal quotation marks omitted.) Id., 7-8. In setting forth the terms of a Garvin agreement, “the trial court judge bears an affirmative, nondelegable duty to clarify the terms . . . .” (Internal quotation marks omitted.) State v. Rosado, 92 Conn. App. 823, 827, 887 A.2d 917 (2006). Thus, we look to whether the terms of the Garvin agreement were “clear and unambiguous so as to put the defendant on notice that failing to” abide by the Evolve program’s rules and regulations would violate the agreement. Id.

On October 9,2009, Judge Hadden set forth the terms of the plea agreement as follows:

“The Court: You . . . understand, however, should you violate any of the terms of this plea, should you fail to complete the Evolve program, should you violate any of the rules and regulations of that program . . . the state will recommend either an increase in bond and immediate incarceration in lieu of bond or that the court impose the sentence of twenty-seven months to serve with a one year mandatory minimum sentence. You understand all these things?
“The Defendant: Yes.
“The Court: And you agree to all those things?
“The Defendant: Yes.” (Emphasis added.)

On the basis of the plea canvass, we conclude that the Garvin agreement required the defendant to comply with the Evolve program. Judge Hadden clearly communicated that failure to abide by the Evolve program’s rules and regulations would violate the Garvin agreement, and the defendant indicated that he understood this condition. See State v. Trotman, 68 Conn. App. 437, 445, 791 A.2d 700 (2002) (plea agreement required defendant to produce negative urine samples where defendant understood court’s warning that positive urine samples would breach agreement).

Thus, we next consider whether the court’s finding that the defendant breached the Garvin agreement when he was twice suspended from the Evolve program was clearly erroneous. Due process dictates “that a defendant must not be sentenced on the basis of improper factors or erroneous information . . . (Internal quotation marks omitted.) State v. Stevens, supra, 278 Conn. 10. “The standard of review regarding this inquiry is whether, on the basis of the evidence, the trial court’s finding of a breach of the agreement was clearly erroneous.” Id. “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.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 782, 991 A.2d 1086 (2010).

We conclude that the trial court’s finding that the defendant breached the Garvin agreement was not clearly erroneous. The record is replete with evidence demonstrating the defendant’s disregard for the Evolve program’s rules and regulations. Not only was the defendant suspended from the Evolve program on two separate occasions, each time due to four unexcused absences, but he also engaged in disruptive behavior while in attendance. Additionally, the court relied upon a letter from the Evolve program, dated February 4, 2011, documenting the defendant’s noncompliance: “[The defendant] acknowledged to the male facilitator that he was drinking . . . before group. [The defendant] refused to leave the Evolve office at one point and made a nonverbal hand gesture toward the male facilitator as though he was pointing a gun at him. Over the course of [the defendant’s] time in the program he has been given several opportunities and chances to comply with the program rules.”

The defendant’s repeated absences and the Evolve letter demonstrate his failure to comply with the Evolve program’s rules and regulations. Although the defendant ultimately completed the Evolve program, the Gar-vin agreement required both completion of the program and compliance with the program’s rules and regulations. Therefore, completion alone could not satisfy the agreement. In the face of this evidence, we conclude that the court’s finding that the defendant breached the Garvin agreement was not clearly erroneous.

II

Next, we address the defendant’s claim that the court, Wahla, J., violated his right to due process when it failed to hold an evidentiary hearing on whether he breached the conditions of the Garvin agreement. Specifically, the defendant argues that, under State v. Stevens, supra, 278 Conn. 1, the court was obligated to conduct an evidentiary hearing when he disputed the contents of the Evolve letter. Further, the defendant contends that the court improperly used the minimum indicia of reliability standard to determine whether the plea agreement was violated, instead of the preponderance of the evidence standard. We are not persuaded.

Although the defendant failed to preserve this claim by requesting an evidentiary hearing, he seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). The defendant’s claim satisfies the first two prongs of Golding because the record is adequate for review and this claim implicates a fundamental constitutional right. See State v. Stevens, supra, 278 Conn. 6 n.6 (noting that appellate court found Golding review appropriate where defendant disputed condition of Garvin agreement). The defendant’s claim, however, fails to satisfy Golding's third prong because he has not established that a constitutional violation occurred.

First, the defendant asserts that the court was obligated to offer, sua sponte, an evidentiary hearing regarding the contents of the Evolve letter. “[D]ue process requires that the defendant be given the opportunity to contest the evidence upon which the trial court relies for sentencing purposes . . . .” (Citations omitted.) Id., 12. Yet, “in the absence of a dispute as to” whether a condition of the Garvin agreement has been violated, “giving effect to the breach of the . . . condition does not violate due process.” Id.

Despite ample opportunities, the defendant did not dispute the state’s evidence that he violated the Garvin agreement. He neither contested the facts underlying his first suspension from the Evolve program, nor requested an evidentiary hearing regarding either his second suspension or the contents of the Evolve letter. Instead, when the court ordered a presentencing hearing in light of the defendant’s failure to comply with the Evolve program, defense counsel’s only reply was, “Yes, Your Honor.” In fact, rather than disputing the allegations contained in the Evolve letter, defense counsel actually used them to support his argument against increased bond. Further, defense counsel asserted that prior to the hearing held on January 28,2011, the defendant was aware that the state could seek his incarceration on the basis of his termination from Evolve, thus belying the defendant’s belief that he was in compliance with the Garvin agreement.

The defendant’s only point of contention pertained to the circumstances leading to his second suspension cited in the Evolve letter. The defendant asserted that his noncompliant behavior was not caused by inebriation, but instead, by consumption of “a few too many” narcotics for an existing injury. This assertion, however, is not probative of whether the defendant complied with the program’s rules and regulations. Instead of contesting the fact of his noncompliance, the defendant only contested the cause of his noncompliance. That the defendant engaged in disruptive behavior in violation of the Evolve program’s rules remained unchallenged.

Moreover, even if the defendant’s contention regarding the circumstances surrounding his noncompliance with the Evolve program were sufficient to trigger an evidentiary healing, the court accorded the defendant an appropriate hearing by inquiring into his explanation. The “nature and extent” of an evidentiary hearing is within the discretion of the trial court, provided that it is of “sufficient depth ... so that the court can be satisfied ... of the existence of a legitimate basis” for finding that the condition of the Garvin agreement was violated. (Internal quotation marks omitted.) State v. Stevens, supra, 278 Conn. 13. We conclude that the court’s inquiry into the defendant’s contentions satisfied this standard.

Next, we address the defendant’s argument that the court improperly applied the minimum indicia of reliability standard in assessing the defendant’s compliance with the Garvin agreement. Specifically, the defendant argues that the court should have applied the preponderance of the evidence standard utilized in probation revocation proceedings in determining whether he breached the agreement. See Stale v. Ricketts, 140 Conn. App. 257, 260, 57 A.3d 893, cert. denied, 308 Conn. 909, 61 A.3d 531 (2013). We disagree.

“When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 744, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008). Under a Garvin agreement, “a court may impose sentences predicated on the defendant’s failure to fulfill a condition of the agreement . . . .” State v. Stevens, supra, 278 Conn. 5. The burden of proof for determining whether a Garvin agreement has been violated is minimum indicia of reliability. Id., 10. Thus, “[a]s long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” (Internal quotation marks omitted.) State v. Petaway, supra, 746 n.6.

Here, the defendant concedes that the trial court applied the appropriate standard of proof of minimum indicia of reliability in determining whether he violated the Garvin agreement. The defendant nevertheless argues that the court should have followed Justice Nor-cott’s concurrence in Stevens by applying the preponderance of the evidence standard. State v. Stevens, supra, 278 Conn. 17-18. This argument is misplaced. “As we have stated before, [w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” (Internal quotation marks omitted). State v. Johnson, 71 Conn. App. 272, 278, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002), cert. denied, 537 U.S. 1207, 123 S. Ct. 1286, 154 L. Ed. 2d 1052 (2003).

The judgments are affirmed.

In this opinion the other judges concurred.

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement.” (Internal quotation marks omitted.) State v. Clark, 136 Conn. App. 421, 423 n.3, 47 A.3d 391, cert. denied, 307 Conn. 906, 53 A.2d 221 (2012); see State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).

       During the October 9,2009 plea proceeding before the court, A. Hadden, J., the defendant admitted to a second charge of violation of probation, which arose out of a 2008 conviction of having operated a motor vehicle while under the influence of intoxicating liquor or drugs. That second charge of violation of probation is not at issue in this appeal. At the sentencing proceeding on the charges at issue in this appeal, the court, Wahla, J., terminated the violation of probation stemming from that 2008 conviction.

       We note that the defendant has already served the eighteen month sentence underlying this appeal. Although this ordinarily would render the defendant’s claims moot; see Brown v. Brown, 69 Conn. App. 209, 211-12, 794 A.2d 550 (2002); under the terms of the Garvin agreement, the defendant’s record would disclose a conviction of assault in the third degree in violation of § 53a-61, rather than assault in the third degree of an elderly person in violation of § 53a-61a. Although both are class A misdemeanors, the conviction of assault in the third degree of an elderly person carries a nonsuspendable one year term of imprisonment. Thus, we determine that such a conviction carries a greater stigma than a conviction of simple assault in the third degree. Consequently, this renders this case eligible for review under the collateral consequences exception to the mootness doctrine. See State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002).

       The state’s full summary of the plea agreement was as follows: “[The] defendant will undergo a substance abuse evaluation and treatment, psychological evaluation and treatment and subsequently complete the Evolve program. [The] defendant will be required to appear for all subsequent court dates, abide by the protective order, not engage in any new criminal conduct, domestic or nondomestic.” (Emphasis added.)

       Additionally, the state moved for sentencing on the ground that the defendant had engaged in criminal conduct in violation of the Garvin agreement by having new charges brought against him—the one count of domestic breach of the peace and one count of nondomestic breach of the peace. The state, however, did not ultimately rely on these violations as grounds for the defendant’s breach of the Garvin agreement. Accordingly, the sole issue on appeal is whether the defendant violated the condition of the Garvin agreement pertaining to the Evolve program.

       Both parties agree that although the defendant failed to preserve this claim, it is nonetheless reviewable. We have previously characterized a similar claim as a “sufficiency of the evidence claim.” State v. Small, 78 Conn. App. 14, 23, 826 A.2d 211 (2003). “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.”

        (Internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13,32 n.17, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006).

       Furthermore, following the initial plea canvass, various judges repeatedly reminded the defendant that failure to comply with the Evolve program’s rules and regulations would violate the Garvin agreement. When the defendant accrued one unexcused absence from the Evolve program, Judge Had-den warned him, “make sure you comply with the requirements of the program, sir.”
      At a later hearing, Judge Connors stated: “You have to abide by all of the program terms and conditions, including the payment, attendance, everything. In the event that you are noncompliant you will be going to prison for twenty-seven months.” When asked if he understood, the defendant replied, “Yes . . . .”

       The defendant also raises an equitable estoppel claim in his reply brief, which we decline to address on the basis of the “well established principle . . . that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Thompson, 98 Conn. App. 245, 247-48, 907 A.2d 1257 (2006).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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.” (Internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 303, 699 A.2d 921 (1997).

       To be sure, the record indicates the defendant’s awareness of his right to request an evidentiary hearing; at the same hearing, held on April 30, 2010, defense counsel requested a Stevens hearing pertaining to a postplea arrest. Presumably, if the defendant disputed his noncompliance with the Evolve program, he would have requested an evidentiary hearing on this matter.

       The state argued that the defendant posed a flight risk and therefore requested a bond increase. In response, defense counsel stated: “I would note, Your Honor, that [the defendant] has not come before the court with any allegation of a violation of his protective order, knowing his situation. This appears to have been a situation explained in the Evolve reports as one fueled by intoxication. In light of that, I would recommend perhaps alternative measures such as [the Alternative Incarceration Center program] for random urines and Breathalyzers or substance abuse evaluation instead of . . . increasing the bond.”

       The following colloquy took place between the court and the defendant:
      “The Defendant: Well, I’d like to say that I will do whatever the court asks me to do. I would like to finish my five classes with Evolve. And my absence there was due to I got an injury and I had several very hard narcotics for my injury. And I took a few too many of those and the man thought I was, you know. . . . That’s why I was—I did make the class, the last class, but I was asked to leave and I did leave, and there was, you know, incident.
      “The Court: You were asked to leave, why?
      “The Defendant: He thought—I guess he thought I was intoxicated. It was the medications that I took, and I have a whole list of them. . . . And, you know, he thought I was under the influence of something other than what I was, which was the pain pills.
      “The Court: So . . . you’re telling me that the Evolve program, who had this observation about you, there was no evidence, real evidence that you were intoxicated?
      “The Defendant: No. He—it would appear that—
      “The Court: He thought that you were intoxicated?
      “The Defendant: He thought—yes. Yes.
      “The Court: But you are telling me that you were not?
      “The Defendant: No, I was not. I have—I have evidence of five different medications I take for pain.
      “The Court: So, you took medication?
      “The Defendant: Yes. Five different—I don’t have them with me.
      “The Court: On that day, sir, I’m talking about?
      “The Defendant: Yes. Yes. I took a couple for my shoulder.”

       Contrary to the defendant’s assertion, the record does not reveal which standard of proof the court applied in determining whether the defendant breached the Garvin agreement on February 4, 2011. It is well established that where the record is silent, a reviewing court will not presume error. See State v. Adgers, 101 Conn. App. 123, 132-33, 921 A.2d 122, cert, denied, 283 Conn. 903, 927 A.2d 915 (2007). Thus, because the record is silent as to the standard of proof applied, we presume that the court utilized the appropriate standard, which, pursuant to State v. Stevens, supra, 278 Conn. 4, is the minimum indicia of reliability standard—the very standard that, the defendant concedes, was applied by the court.