author: SCHALLER, J. BEAR, X,

text:
    MARY ELLEN ALBINI ET AL. v. CONNECTICUT MEDICAL EXAMINING BOARD
    (AC 33462)
    Lavine, Bear and Schaller, Js.

      Argued January 11
    —officially released July 23, 2013

      Diane Polan, with whom, on the brief, was S. Max Simmons, for the appellants (plaintiffs).

      Henry A. Saltón, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Mary Ellen Albini and Joan Mershon, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant, the Connecticut Medical Examining Board (board). On appeal, the plaintiffs claim that the trial court erred in dismissing their appeal because the board’s order (1) exceeded the scope of its statutory authority, (2) unlawfully restricted the common-law practice of midwifery and (3) construed General Statutes § 20-9 in an unconstitutionally vague and overbroad manner. The plaintiffs also claim that the trial court, in its opinion, erroneously referred to and relied upon repealed statutes. The board filed a cross appeal asserting that (1) the trial court lacked jurisdiction to review the plaintiffs’ claims, (2) the trial court erred in determining that the order was overbroad and (3) alternatively, if the trial court correctly found that the board’s order was overbroad, this court should remand the matter to the board for further proceedings. We reverse the judgment of the trial court with respect to part one of the board’s order and affirm the judgment in all other respects.

The following facts and procedural history, as found by the board and set forth by the trial court, are undisputed. The plaintiffs are independent midwives who have not been issued licenses to practice medicine by the state of Connecticut. The plaintiffs provided prenatal care to C.B., an expectant mother and, in the course of care, they obtained a medical history, and provided periodic physical examinations and advice about nutrition, exercise and having a home birth. C.B.’s physician advised her against a home delivery due to the baby’s positioning and estimated fetal weight, but the plaintiffs advised C.B. that she could have a home delivery despite her physician’s advice to the contrary.

C.B. went into labor in the early morning of May 26, 2000. The plaintiffs went to C.B.’s home to assist with the labor and delivery. The plaintiffs advised C.B. to go to the hospital because the baby had an elevated fetal heart rate. While en route to the hospital with her husband, C.B. began to deliver her baby. At this time, C.B.’s husband drove his car into a parking lot. The plaintiffs were following in a separate vehicle. Emergency medical personnel responded to the scene, and Albini informed them that the baby, E.B., had been bom. The emergency medical personnel requested permission to examine E.B., and the plaintiffs refused access to the child. The emergency medical personnel also requested to take C.B. and E.B. to the hospital for medical evaluation, but the plaintiffs refused this request. The plaintiffs and emergency medical personnel remained with C.B. in the car for approximately thirty to forty minutes waiting for the placenta to be delivered. When there was no spontaneous delivery, the emergency medical personnel transported C.B. to the hospital. Prior to leaving with C.B., emergency medical personnel again requested permission to transport E.B. to the hospital for medical evaluation. C.B. and her husband relied on the plaintiffs’ advice that E.B. was healthy when they refused additional medical evaluation for the child.

Approximately two hours after his birth, E.B. was taken to C.B.’s hospital room, and, while visiting, he developed difficulty breathing and appeared cyanotic. Shortly thereafter, E.B. was taken to the hospital’s emergency department where he was admitted in respiratory distress. After the emergency department assessed and treated E.B., he was transferred to the neonatal intensive care unit. E.B. was discharged from the hospital several days later with a diagnosis of pneu-monitis.

The department of public health presented the board with separate charges seeking a cease and desist order against each of the plaintiffs on the ground that they had engaged in the unauthorized practice of medicine in violation of § 20-9; the charges against the two were subsequently consolidated. Hearings before a panel of the board were held between 2003 and 2005. The panel issued its proposed decision, which then was referred to the entire board. The plaintiffs submitted a brief and posthearing brief to the panel but chose not to file exceptions to the proposed decision or to appear before the full board at its meeting on March 18, 2008, to present oral argument challenging the proposed decision. On March 18, 2008, the board approved the proposed decision unanimously and it thereby became the final decision.

The board concluded that the plaintiffs violated § 20-9 (a), which provides in relevant part: “No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person . . . until he has obtained such a license [to practice medicine].” The board issued an order that the plaintiffs immediately “cease and desist from practicing medicine unless and until [they] are properly licensed” (original order).

The plaintiffs timely appealed the original order on May 2, 2008, and moved the court for a stay of the final decision. On September 22, 2008, the court, after hearing, denied the plaintiffs’ motion for a stay. The court observed that the original order was ambiguous, as it directed the plaintiffs not to practice medicine although they denied that they were practicing medicine. The board subsequently moved for a voluntary remand in order to clarify its final decision, which the court granted.

Thereafter, on July 20, 2010, the board issued a revised final decision after amending the original order in an executive session (revised order). The revised order stated, in relevant part: “Pursuant to the authority vested in it by section 19a-ll of the Connecticut General Statutes, the board orders that the [plaintiffs] immediately cease and desist from practicing medicine as defined in section 20-9 (a) of the Connecticut General Statutes (i.e. diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person) including but not limited to the following actions unless and until [plaintiffs] are properly licensed.” The revised order thereafter includes three numbered paragraphs. Part one provides as follows: “[Plaintiffs] shall cease and desist from diagnosing a person’s condition including but not limited to assessing persons to determine the presence or absence of conditions that may require immediate or future medical care or the course of potential medical care.”

The plaintiffs pursued their appeal to the trial court with respect to the revised order, asserting that the board lacked jurisdiction to sanction them because their activities as independent midwives did not constitute the unauthorized practice of medicine in violation of § 20-9 and that § 20-9, as interpreted by the board, was unconstitutionally vague. The court, in its memorandum of decision dated April 5, 2011, stated that part one had “too broad a sweep to the extent that it forbids determinations associated with normal pregnancy, well-baby care, and the decision to refer a more complicated matter to a physician. . . . [This court’s] opinion in general permits such activities by midwives.” Nevertheless, the court concluded that part one was appropriate when read in context of the following facts: the plaintiffs and C.B. discussed disregarding C.B.’s physician’s advice; the plaintiffs refused to give emergency medical personnel access to C.B. and E.B; the plaintiffs advised C.B. to stay in her vehicle and wait for spontaneous placenta delivery; and the plaintiffs advised C.B. that E.B. was healthy and need not be evaluated at the hospital. The court further concluded that the board’s findings of fact supported parts two and three of the revised order; see footnote 2 of this opinion; and it dismissed the plaintiffs’ administrative appeal.

The plaintiffs filed a motion to reconsider and/or reargue, asserting that after the court concluded that midwifery in the context of normal pregnancies did not constitute the practice of medicine, the court should have either remanded the case to the board with instructions to modify its order or sustained the appeal and modified the board’s decision in accordance with General Statutes § 4-138 (j) and (k). The court, in its April 28, 2011 ruling on the plaintiffs’ motion, noted that the board’s revised order should not be read beyond the factual context of this case. The court concluded that, in the factual context of this case, the plaintiffs failed to meet their burden of showing that part one of the revised order was not sustainable on this specific record. The court granted the motion to reconsider only to the extent that the rescript of the prior decision was withdrawn and reissued as follows: “The appeal is fully dismissed as to [parts two and three of the revised order] of the board; it is dismissed as to [part one] as addressed in this opinion.” The plaintiffs’ appeal, and the board’s cross appeal followed. Additional facts are set forth as necessary.

I

We first address the board’s contention, raised in its cross appeal, that the trial court lacked jurisdiction to review the plaintiffs’ claims. Specifically, the board argues that the plaintiffs waived any objections or challenges regarding the final decision when they elected not to present oral argument to the full board with regard to the proposed decision in accordance with General Statutes § 4-179. According to the board, the plaintiffs failed to fully exhaust their administrative remedies thereby depriving the court of subject matter jurisdiction. We conclude that the board’s arguments lack merit.

The court concluded that the plaintiffs were not barred from raising their claims on appeal. Relying on Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 613 A.2d 739 (1992), the court reasoned that although the plaintiffs had elected not to present oral argument before the board, “[the board’s] decisions [were] questioned in this appeal for the same reasons brought to the panel’s attention both by the plaintiffs’ evidentiary proof and legal argument.” (Emphasis added.) We agree with the trial court.

We begin by setting forth the legal principles that will guide our analysis. “We have long held that because [a] determination regarding atrial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “[Our Supreme Court has] made it clear that [it] will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during trial.” (Internal quotation marks omitted.) Dragan v. Connecticut Medical Examining Board, supra, 223 Conn. 632. “A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [board].” (Internal quotation marks omitted.) Evans v. Plan & Zoning Commision, 73 Conn. App. 647, 651, 808 A.2d 1151 (2002).

The relevant language of § 4-179 (a) provides that when the majority of the agency members rendering the final decision have not heard the matter or read the record, the decision “shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument . . . .” We first observe that the plain language of § 4-179 (a) does not require the plaintiffs to present oral argument but, instead, states that under certain circumstances an opportunity to present exceptions or argument must be provided.

Our courts have remarked that this section, and its predecessors, provide procedural safeguards to protect the plaintiffs’ due process rights and ensures that the board is sufficiently acquainted with the issues so it may render an informed judgment. See Pet v. Dept. of Health Services, 228 Conn. 651, 673, 638 A.2d 6 (1994); Towbin v. Board of Examiners of Psychologists, 71 Conn. App. 153, 173-74, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002). The board has not provided us with any authority supporting its contention that the plaintiffs’ failure to present oral argument pursuant to § 4-179 subsequently bars them from challenging the decision on appeal or that this statute serves that particular purpose.

Under the circumstances of this case, the plaintiffs’ failure to file exceptions or present oral argument pursuant to § 4-179 was not tantamount to failing to challenge the proposed decision. A thorough review of the record reveals that the plaintiffs consistently challenged the board’s jurisdiction and construction of § 20-9. Specifically, the plaintiffs argued during the hearings and in their posthearing brief that the board lacked jurisdiction to sanction or examine their actions because they were not engaged in the practice of medicine as defined by § 20-9. This case is akin to Burinskas v. Dept. of Social Services, 240 Conn. 141, 691 A.2d 586 (1997). In Burinskas, the defendants argued that because the plaintiffs did not challenge the standard applied by the hearing officer at the fair hearing, they should be barred from raising the argument on appeal. Id., 153 n.15. Our Supreme Court disagreed, concluding that the plaintiffs were not barred from raising the claim because they could not have clearly articulated their challenge until the hearing officer rendered his final report relying on the improper standard. Id. Similarly, in the present case, the specific challenges that the plaintiffs raise regarding part one of the order could not have been specifically articulated until the board rendered its revised final decision on remand. Thus, this is not a case in which the plaintiffs are, for the first time on appeal, raising claims that were not asserted before the board. Cf. Dragan v. Connecticut Medical Examining Board, supra, 223 Conn. 632 (plaintiff did not assert during license revocation proceedings that right to cross-examine witness was violated). Accordingly, we conclude that the trial court properly determined that the plaintiffs were not barred from raising their claims on appeal and further conclude that it had jurisdiction over the matter.

II

The plaintiffs first assert that part one of the board’s revised order, as written, unlawfully purports to expand the board’s jurisdiction beyond statutory provisions. The board ordered the plaintiffs to cease and desist from the practice of medicine, as defined by § 20-9 (a), and stated that such practice included but was not limited to, “diagnosing a person’s condition [by] assessing persons to determine the presence or absence of conditions that may require . . . medical care.” The plaintiffs specifically argue that the board’s use of the word “condition” in part one was an invalid interpretation of § 20-9, which impermissibly authorized the board to regulate the conduct of independent midwives in their course of practice as it pertains to normal pregnancies in excess of the board’s statutory authority. We agree with the plaintiffs.

As a preliminary matter, we set forth the standard of review and legal principles that will guide our analysis. “[J]udicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . [R]eview of an administrative agency decision [usually] requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Citation omitted; internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen’s Ethics Advisory Board, 140 Conn. App. 754, 766, 60 A.3d 297 (2013).

Because the plaintiffs’ claim presents a matter of statutory construction, which is a question of law, we will apply a broader standard of review. “Cases that present pure questions of law . . . traditionally invoke a broader standard of review than ordinarily is involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that we will defer to an agency’s interpretation of a statutory term only when that interpretation of the statute previously has been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation and is reasonable.” (Internal quotation marks omitted.) Id., 767. The board does not contend that it has applied a time-tested interpretation, and we observe that this issue has not yet been addressed by the board or our courts. See Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 663, 916 A.2d 803 (2007). “[W]e [therefore] afford no special deference to the conclusion of the board. . . . Instead, we exercise the plenary review we otherwise apply to such questions of law.” (Citation omitted.) Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 264, 927 A.2d 811 (2007); see also State Medical Society v. Connecticut Board of Examiners in Podiatry, 208 Conn. 709, 719, 546 A.2d 830 (1988).

Our analysis of whether the board exceeded its authority or acted without jurisdiction focuses on the relevant statute, § 20-9. “Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon . . . the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions . . . under which it acquires authority unless the statutes expressly grant it that power.” (Internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 654, 923 A.2d 709 (2007).

“Our Supreme Court previously has instructed that in construing statutes, [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Livingston v. Dept. of Consumer Protection, 120 Conn. App. 92, 98, 991 A.2d 570 (2010). “[W]ords and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. ... If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Citation omitted; internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 380, 54 A.3d 532 (2012).

We agree with the plaintiffs that the board exceeded its statutory authority when it interpreted § 20-9 to include the diagnosis or assessment of “conditions.” Section 20-9 (a) provides in relevant part that “[n]o person shall . . . diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease . . . until he has obtained [a] license.” (Emphasis added.) By its plain language, and the common meanings associated therewith, this statute defines the scope of unauthorized practice of medicine specifically in terms of abnormalities or deviations from a healthy state of being. See Stale Medical Society v. Connecticut Board of Examiners in Podiatry, supra, 208 Conn. 727 (trial court did not err in relying on common usage and dictionary definition of “foot” when construing General Statutes § 20-50 to determine scope of practice for podiatry and concluding that “foot” did not include “ankle”). The term “condition,” by contrast, is defined more broadly as the “mode or state of being” of a person or thing, which is expansive enough to encompass even a healthy state of being. American Heritage College Dictionary (2d Ed. 1985). Indeed, the use of condition to refer to ailments or diseases (e.g., heart condition) had been challenged as an improper use of the term. See id. (“Usage: Condition ... in the sense of ‘disease’ or ‘ailment’ ... is not a scientific term and has been objected to as a euphemism”). Accordingly, the statute’s specific focus on illness, injury, deformity and ailment is inconsistent with the intent to include the broader scope expressed by “condition.”

Because part one of the revised order, as drafted, exceeds the scope of the board’s statutory authority, we further conclude that it improperly purports to regulate midwifery as the unauthorized practice of medicine. In reaching this conclusion, we find the principles set forth in other jurisdictions persuasive. In State ex rel. State Board of Nursing v. Ruebke, 259 Kan. 599, 913 P.2d 142 (1996), the contested statute also defined the unauthorized practice of medicine in the scope of abnormalities and pathologies. Id., 615. Concluding that “[p]regnancy and childbirth [were] neither pathologies nor abnormalities,” the Kansas Supreme Court held that midwifery, in the context of a normal pregnancy, did not constitute the unauthorized practice of medicine. Id., 615-16. Similarly, in State v. Banti, 163 Tex. Crim. 89, 289 S.W.2d 244 (Tex. Crim. App. 1956), the court of criminal appeals in Texas held that assisting a woman with childbirth did not establish that the defendant treated the woman for a “disease, disorder, deformity, or injury” so as to constitute the unauthorized practice of medicine. Id., 92. In the present case, experts opined that normal pregnancies are not considered illnesses, deformities, ailments or diseases. In fact, the dictionary defines pregnancy as the “condition of being pregnant.” (Emphasis added.) American Heritage College Dictionary, supra. Accordingly, diagnosis or assessment rendered in relation to normal pregnancies would not place an individual’s actions within the ambit of § 20-9. In light of the foregoing, we conclude that the use of the word “condition” in part one of the revised order purported to expand the board’s jurisdiction. We farther conclude that the board lacks the power to regulate the diagnosis and assessment of “conditions” where the plain language of § 20-9 contemplates no such authority.

Because we have determined that part one of the revised order exceeded the board’s statutory authority, it follows that the court improperly dismissed the plaintiffs’ appeal. Section 4-183 Q) provides in relevant part that a court may render a judgment under § 4-183 (k) or remand the case to the agency for further proceedings if the court found that the rights of the person appealing have been prejudiced because the agency’s decision is in excess of the statutory authority of the agency. Although the court, in its April 5, 2011 memorandum of decision, observed that part one of the revised order was overbroad, it nevertheless dismissed the plaintiffs’ appeal and instead attempted to limit the scope of part one through its April 28, 2011 opinion. After concluding that part one was overbroad, the court should have sustained the appeal on the ground that the decision exceeded the agency’s statutory authority and taken the appropriate remedial action by either remanding to the agency for farther proceedings, modifying the agency decision, ordering a particular agency action, or ordering the agency to such action necessary to effect the particular action. General Statutes § 4-183 G) and (k).

The judgment of the trial court is reversed with respect to its dismissal of part one of the board’s order and the case is remanded to that court with direction to sustain the plaintiffs’ appeal and to render judgment modifying the board’s final decision to eliminate part one of the order in its entirety. The judgment is affirmed in all other respects.

In this opinion LAVINE, J. concurred.

BEAR, X,

concurring. I concur in the result that the majority reaches in part I of its opinion. I otherwise join the majority opinion.

       The plaintiffs axe not nurse midwives as defined by General Statutes § 20-86a.

       The plaintiffs do not challenge the validity of the board’s other modifications to its original order, namely, parts two and three of the board’s revised order, which provided as follows: “(2) [Plaintiffs] shall cease and desist from advising persons based upon their assessment of a person’s condition (i) whether the assessment or diagnosis of health care providers who have seen the person are correct in their diagnosis or assessment that they have provided the person and (ii) whether to comply with or depart from directions or advice of licensed medical providers who have diagnosed and advised the person.
      “(3) [Plaintiffs] shall cease and desist from advising persons based upon their assessments of a person’s condition whether or not the assessment or intervention of licensed health providers is necessary.”

       To the extent the board asserts that this court is also without jurisdiction, we disagree and for the aforementioned reasons conclude that this court has jurisdiction to review the merits of the plaintiffs’ claims.

       It is undisputed that the board is empowered to seek a cease a desist order against those individuals deemed to be engaged in the unauthorized practice of medicine. See General Statutes §§ 20-9, 19a-11 and 19a-14.

       “Ailment” is defined as “aphysical ormental disorder, esp. amildillness.” American Heritage College Dictionary (2d Ed. 1985). “Deformity” is defined as “the state of being deformed,” while “deformed” is defined as “misshapen or distorted in form.” Id. “Disease” is defined as “an abnormal condition of an organism or part, esp. as a consequence of infection, inherent weakness, or environmental stress, that impairs normal physiological functioning.” Id. “Illness” is defined as “sickness of body or mind.” Id.

       We are not persuaded by the board’s assertion that its interpretation of § 20-9 is entitled to deference. The board’s reliance on Leib v. Board of Examiners for Nursing, 177 Conn. 78, 411 A.2d 42 (1979), for the proposition that the agency is given authority to determine the parameters of a statute is misplaced. In Leib, the statute contained the nonexclusive language “includpng] . . . but not limited to,” which our Supreme Court concluded was indicative of legislative intent to delegate to the agency the duty of ascertaining the acts falling within the ambit of the statute. Id., 88-90. Here, however, there is no such expansive language indicating that the statute sets forth a nonexclusive list.
      We also find that the board’s reliance on Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 561 A.2d 429 (1989), is similarly misplaced. In that case, the court concluded that the legislature’s use of the word “operational meeting,” without further providing criteria for determining what activities constituted “operational” or defining the term evinces legislative intent that the agency should define the parameters of the term. Id., 106. In the present case, the legislature did not use the broad term “condition,” but instead set forth an exhaustive list composed entirely of four specific terms with narrow definitions pertaining to abnormal states of health.

       We note that those jurisdictions reaching the opposite conclusion—that midwifery does constitute the unauthorized practice of medicine—define the scope of medicine more broadly to include conditions as well as abnormalities and pathologies. See, e.g., Smith v. State ex rel. Medical Licensing Board of Indiana, 459 N.E.2d 401, 403-404 (Ind. App. 1984); see also State ex rel. State Board of Nursing v. Ruebke, supra, 259 Kan. 616.

       Because our conclusions regarding this issue are dispositive, we need not address the plaintiffs’ remaining claims as to why the board’s first order is erroneous. We therefore decline to address the plaintiffs’ claims that the board’s order (1) unlawfully restricts common law practice of midwifery and (2) renders the § 20-9 unconstitutionally vague and overbroad. For the same reason, we also decline to address the board’s claims on cross appeal that the court erred in concluding that the first order was overbroad, or, alternatively, that this court should remand the matter to the board for further proceedings if we conclude that the trial court correctly determined that the order was overbroad.
      The plaintiffs’ assertion that court erred in referring to repealed statutes that had previously regulated to practice of midwifery is without merit. The plaintiffs, in their argument, misinterpret and mischaracterize trial court’s language as an attempt to resurrect these repealed statutes and incorporate them into § 20-9. In context, the court’s reference to these statutes served only to provide an example of the traditional roles of midwives. We therefore conclude that the trial court did not err.

       Because the scope of a midwife’s practice is not before us on this appeal, we do not establish the boundaries of what a midwife may do without engaging in the unauthorized practice of medicine.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MIGUEL GONZALEZ
    (AC 33296)
    Alvord, Bear and Sheldon, Js.

      Argued February 19
    —officially released July 23, 2013

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Matthew A. Weiner, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Miguel Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of interference with a search in violation of General Statutes § 54-33d. On appeal, the defendant claims (1) that the evidence was insufficient to convict him of the crime of interference with a search, and (2) that the trial court abused its discretion by refusing to sever his trial on that charge from his trial on the charge of murder in connection with which the search at issue was conducted. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In September 2007, the defendant and the victim, Miguel Vasquez, had a verbal altercation outside of a bar in Bridgeport. On October 7, 2007, the victim was shot and killed at a party in the basement of a home (home) owned by Mokeema Garcia. The victim was shot from approximately six to twelve inches away.

Nairobi Ortiz, the victim’s niece, testified that she saw the defendant at a bar on the night of the party, before seeing him later at the party. She testified that while the defendant was at the bar he stared at the victim, and that he was wearing a brown baseball hat and glasses. Richard Serrano testified that he saw the defendant at around midnight on that same night. Serrano testified that, while he was on his way to the party, he saw the defendant walking out of an alleyway near the home carrying a gun. Nairobi Ortiz testified that she saw the defendant being denied entry to the party. Erica Ortiz, another of the victim’s nieces, also testified that she saw the defendant being denied entry to the party, but that she later saw him at the party. After the shooting, Garcia found a brown baseball hat and a pair of glasses on his property. Serrano testified that he saw the defendant the next day, at which time the defendant threatened him “to watch [his] mouth or the same thing was going to happen that happened in the basement . . . .” Serrano testified that the defendant had a gun in his hand at this time.

The hat and glasses were sent to the state police forensic laboratory for DNA testing. The results included the defendant as a possible contributor to the DNA on the hat and eliminated him as a possible contributor to the DNA on the glasses. On August 25, 2008, as part of the murder investigation, the state obtained a search warrant to use a buccal swab to obtain a DNA sample from the defendant. At the time, the defendant was being held in a cell at the Bridgeport Police Department awaiting arraignment in an unrelated matter. On August 26, 2008, after the defendant was approached by detectives who had come to execute the warrant to seize a buccal swab from the interior of his cheek, initially he vacillated between agreeing and refusing to comply with the warrant. The defendant ultimately refused to comply, causing the detectives to seek advice from their supervisor. Upon returning to the defendant’s cell, accompanied by other officers, the detectives explained to the defendant that he did not have a right to speak to an attorney before they executed the warrant and that if he did not comply voluntarily, they would execute the warrant forcibly. The defendant persisted in his refusal to comply. Several officers entered the cell to assist with the execution of the warrant and the defendant resisted by “struggling,” “flailing, fighting,” and “basically fighting them not to stay down on the . . . bed.” Three of the officers present in the cell held the defendant down on the bed: one officer held his legs and feet, one officer held his stomach area, and one officer held his nose and jaw line. The defendant refused to open his mouth. The officer holding the defendant’s nose and jaw line pinched his nose closed to prevent him from breathing through his nose and force him to breathe through his mouth. Pinching the defendant’s nose closed forced him to open his mouth. A detective entered the cell, stood over the defendant and swabbed his open mouth. The officers and detectives then exited the cell. DNA tests on the swab and the hat found at the home established that the defendant was a possible contributor to the DNA found on the hat. On August 26, 2008, the defendant was charged with interference with a search. Subsequently, the defendant was charged in a separate information with the victim’s murder.

On September 22, 2009, the state filed a motion to consolidate for trial the information charging interference with a search and the information charging murder, which the court, Hauser, J., granted. On November 10, 2009, the defendant filed a motion to sever the two cases, arguing that consolidation of the charges for trial would result in him suffering substantial prejudice because the two offenses involved separate and unrelated incidents. He claimed that the murder charge involved a brutal and shocking crime, and that the jury would use video evidence of the interference with a search charge cumulatively to convict him of both charges. On November 12, 2009, the court, Hauser, J., denied the defendant’s motion to sever, incorporating his prior decision on the state’s motion to consolidate and further elaborating that the defendant failed to demonstrate how the victim’s murder was especially brutal. During jury selection for the joined cases, defense counsel made an oral motion for a bench trial on the interference with a search charge, which the court, Hauser, J., denied. The consolidated cases were tried to a jury, which found the defendant guilty of interference with a search. The jury could not reach a verdict on the murder charge, which resulted in a mistrial on that charge. The court rendered judgment in accordance with the jury’s verdict. This appeal followed.

I

The defendant’s first claim on appeal is that the evidence before the court was insufficient to prove him guilty of interference with a search pursuant to § 54-33d, which provides in relevant part as follows: “Any person who forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person authorized to serve or execute search warrants or to make searches and seizures while engaged in the performance of his duties with regard thereto or on account of the performance of such duties, shall be fined not more than one thousand dollars or imprisoned not more than one year or both . . . .” Specifically, the defendant argues that the evidence was insufficient to prove either (A) that his refusal to open his mouth or his involuntary struggles to breathe constituted forcible interference with a search; or (B) that such use of force, if any, was intentional. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [Pjroof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.” (Internal quotation marks omitted.) State v. Moore, 141 Conn. App. 814, 818, 64 A.3d 787 (2013).

“It is axiomatic that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010).

A

The defendant claims that neither his refusal to open his mouth nor his involuntary struggle to breathe constituted forcible interference with a search pursuant to § 54-33d. Specifically, the defendant argues that the “forcibly” element of interference with a search necessarily requires the use of physical force, such as engaging in a physical struggle, in order to prove that his acts of resistance, opposition, impeding or otherwise interfering with a search violated the statute. The defendant also argues that the evidence adduced at trial was insufficient to prove that he used physical force in refusing to open his mouth or involuntarily straggling to breathe. We are not persuaded.

The jury could reasonably have found that the defendant resisted, opposed, impeded and interfered with the detectives and officers when they attempted to obtain a sample of DNA from him, by struggling with them, flailing his arms and legs, and otherwise physically resisting their efforts. The defendant’s resistance caused the detectives and officers to pin him down on the bed in his cell to prevent him from continuing to struggle and to resist their efforts to execute the warrant. The jury could also reasonably have found that the defendant actively refused to open his mouth as part of his efforts to resist and to interfere with the detectives’ attempt to obtain his DNA sample, and that the defendant exerted physical force by clenching his jaws and related facial muscles to keep his mouth closed, thereby denying them access to the inside of his cheeks. The detectives were able to open the defendant’s mouth only by pinching his nose closed, which action constricted the defendant’s nasal air passage and forced him to breathe through his open mouth. We conclude, therefore, that the evidence was sufficient to prove that the defendant used physical force to resist, oppose, impede and to interfere with the execution of the search warrant.

B

The defendant also claims that the evidence was insufficient to demonstrate that he intentionally acted forcibly to interfere with the search. Specifically, the defendant argues that the evidence was insufficient to prove that he acted intentionally, which is an element of § 54-33d that must be proven beyond a reasonable doubt. We are not persuaded.

“A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” General Statutes § 53a-3 (11). “It is axiomatic that the definition of intent as provided in § 53a-3 (11) embraces both the specific intent to cause a result and the general intent to engage in proscribed conduct.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 411, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

Here, the jury could reasonably have found on the basis of the evidence that the defendant intentionally acted forcibly to resist, oppose, impede and interfere with the detectives and officers when they attempted to obtain a sample of DNA from the inside of his cheeks when he struggled with them, flailed his arms and legs, and otherwise physically resisted their efforts, including clenching his jaws shut. The jury also reasonably could have found that the defendant, after being given the opportunity to provide his DNA sample, actively refused to cooperate despite being told that the sample forcibly would be taken from him if necessary, and that his conduct demonstrated that he intended to use force to achieve the result of not providing his DNA sample to the state. In summary, the evidence was sufficient for the jury reasonably to have found that the defendant had the requisite intent to engage in the described conduct and to achieve his desired result, i.e. forcibly to resist, oppose, impede and otherwise to interfere with the search in order to avoid providing his DNA to the state, and the intent requirements of § 54-33d thus were satisfied.

For the foregoing reasons, we conclude that the jury reasonably could have found that the evidence established the elements of the defendant’s guilt of interference with a search beyond a reasonable doubt.

II

The defendant claims that the court abused its discretion in denying his motion to sever the interference with a search charge from the murder charge because evidence was not cross admissible in the two cases. The state argues that evidence of the interference with a search charge was admissible in the murder case as consciousness of guilt evidence, and that evidence of the murder charge was admissible in the interference with a search case to prove the defendant’s motive for interfering with the search. We agree with the state.

“[W]hen charges are set forth in separate informa-tions, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” (Footnote omitted.) State v. Payne, 303 Conn. 538, 549-50, 34 A.3d 370 (2012). “[I]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” (Internal quotation marks omitted.) State v. Morgan, 140 Conn. App. 182, 203, 57 A.3d 857 (2013).

“A long line of cases establishes that the paramount concern is whether the defendant’s right to a fair trial will be impaired. Therefore, in considering whether joinder is proper, this court has recognized that, where evidence of one incident would be admissible at the trial of the other incident, separate trials would provide the defendant no significant benefit. . . . Under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial. . . . Accordingly, we have found joinder to be proper where the evidence of other crimes . . . [was] cross admissible at separate trials. . . . Where evidence is cross admissible, therefore, our inquiry ends.” (Internal quotation marks omitted.) Id., 201-202.

“A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as . . . concealment of evidence . . . [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. ... In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused . . . which may be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) State v. Moye, 119 Conn. App. 143, 150, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638 (2010).

“Generally speaking, all that is required is that . . . evidence [of consciousness of guilt] have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render [such] evidence . . . inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of consciousness of guilt does not make [the admission of evidence of consciousness of guilt] erroneous. . . . Moreover, [t]he court [is] not required to enumerate all the possible innocent explanations offered by the defendant. . . . [I]t is the province of the jury to sort through any ambiguity in the evidence in order to determine whether [such evidence] warrants the inference that [the defendant] possessed a guilty conscience.” (Citation omitted; internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011).

“Evidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of a crime, or to corroborate crucial prosecution testimony.” Conn. Code Evid. § 4-5 (b).

The jury reasonably could have found the evidence of the defendant’s interference with a search charge indicative of the defendant’s consciousness of guilt in the murder case. In particular, the jury could have found, from the defendant’s interference with the execution of the search warrant, that the defendant did not want to provide a DNA sample because it would support the state’s claim that he was guilty of the murder. As previously set forth, “[t]he fact that the evidence might support an innocent explanation as well as an inference of consciousness of guilt does not make [the admission of evidence of consciousness of guilt] erroneous.” (Internal quotation marks omitted.) State v. Coccomo, supra, 302 Conn. 670. Additionally, the jury reasonably could have found the evidence of the murder indicative of the defendant’s motive for interfering with the execution of the search warrant in the interference with a search case. “Evidence of other crimes, wrongs or acts of a person is admissible ... to prove . . . motive . . . .” Conn. Code Evid. § 4-5 (b). Thus, we are not persuaded by the defendant’s claim that the evidence was not cross admissible in these two cases. Accordingly, we conclude that the court properly exercised its discretion in granting the state’s motion to consolidate the charges for trial and in denying the defendant’s motion for a separate trial on each charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[A] [b]uccal swab is similar to a big cotton swab, and ... is swabbed inside the mouth to get skin cells for DNA analysis.” State v. Morgan, 140 Conn. App. 182, 193 n.9, 57 A.3d 857 (2013).

       Alternatively, the defendant argues that joinder of the two charges for trial substantially prejudiced him because of the violence inherent in the murder charge and the complexity of the trial of that charge. Because our discussion of the cross admissibility of the evidence is dispositive of the claimed error, we do not reach the defendant’s claim of substantial prejudice under the Boscarino factors. See State v. Payne, 303 Conn. 538, 549-50, 34 A.3d 370 (2012).

        State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987).

       Section 4-5 of the Connecticut Code of Evidence provides: “(a) Evidence of other crimes, wrongs, or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.
      “(b) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of a crime, or to corroborate crucial prosecution testimony.
      “(c) Specific instances of conduct when character in issue. In cases in which character or a trait of character of a person in relation to a charge, claim or defense is in issue, proof shall be made by evidence of specific instances of the person’s conduct.”


author: PER CURIAM.

text:
    VANCE JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 33594)
    Gruendel, Sheldon and Dupont, Js.

      Argued March 14
    —officially released July 23, 2013

      Lori Welch-Rubin, assigned counsel, for the appellant (petitioner).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Vance Johnson, appeals from the judgment of the habeas court denying his most recent post-conviction petition for a writ of habeas corpus alleging that he had received ineffective assistance of counsel both in his underlying criminal trial and in two earlier habeas corpus proceedings challenging the lawfulness of his underlying conviction. As to his trial counsel, Fred DeCaprio, the petitioner makes a claim of ineffective assistance based upon DeCaprio’s alleged failure to investigate, or to present any claim to the trial court concerning, the petitioner’s competency to stand trial. As to his first prior habeas counsel, Vicki Hutchinson, the petitioner makes a claim of ineffective assistance based upon Hutchinson’s failure to raise the foregoing claim of ineffective assistance by DeCaprio as an independent basis for seeking habeas relief. As to his second prior habeas counsel, William Bums, the petitioner makes a claim of ineffective assistance based upon Bums’ failure to raise a claim of ineffective assistance by Hutchinson for failing to raise the foregoing claim of ineffective assistance by DeCaprio as a basis for seeking habeas relief. The petitioner claims that the habeas court improperly determined that he had not received ineffective assistance of counsel from his trial lawyer, DeCaprio, or either of his prior habeas counsel, Hutchinson or Bums, and that the habeas court erred in excluding the report and testimony of his psychological and cognitive forensic expert. We disagree with the petitioner, and thus affirm the judgment of the habeas court.

The petitioner was charged in his underlying criminal case with murder and criminal possession of a firearm. He pleaded guilty to the firearm charge and was sentenced to five years incarceration on that offense. At a subsequent jury trial, in which he was represented by DeCaprio, the petitioner was found guilty of murder and was sentenced on that charge to sixty years incarceration, to run concurrently with his sentence on the firearm charge. His conviction was later affirmed by this court on direct appeal. State v. Johnson, 53 Conn. App. 476, 733 A.2d 852, cert. denied, 249 Conn. 929, 733 A.2d 849 (1999).

Since his conviction, the petitioner has filed four habeas corpus petitions. In the present, most recent petition, as noted, his claims were based upon his trial counsel’s alleged failure to request a competency examination pursuant to General Statutes § 54-56d and the failure of his two prior habeas attorneys to allege ineffectiveness by their predecessors in prior trial and habeas corpus proceedings. At the present habeas trial, the respondent, the commissioner of correction, sought to bifurcate the case in order first to focus on the performance of the petitioner’s prior attorneys, and thus perhaps to eliminate the need to proceed to the element of prejudice, which would entail the presentation of medical evidence. The petitioner objected to bifurcation on the ground that the performance and prejudice prongs of an ineffective assistance inquiry under Strickland are intertwined due to the nature of the claim of ineffective assistance, to wit: that his trial counsel should have requested a competency examination. The habeas court agreed with the respondent that it made sense to bifurcate the trial and begin with the testimony of the petitioner’s prior attorneys.

Following the petitioner’s presentation of the testimony of his three prior attorneys, in addition to his own testimony, the habeas court denied the petition for a writ of habeas corpus from the bench, finding that there had never been “a question in anyone’s mind” as to the petitioner’s competency at the time of his trial. Having heard the testimony of the petitioner’s attorneys and reviewed the transcripts of earlier proceedings in which they represented him, the habeas court determined that “there is no possibility . . . that [the petitioner] was incompetent. There isn’t even a hint of it.” The habeas court noted DeCapiio’s testimony that although he had had some concerns during the criminal trial regarding the petitioner’s ability to assist with his defense, and had raised those concerns with the trial court and asked for some time to have an evaluation done to ascertain whether there should be an inquiry regarding the petitioner’s competency, he did not feel it necessary to file a motion for a competency evaluation pursuant to § 54-56d. The habeas court credited DeCaprio’s testimony, which it described as unequivocal, that “at no time did he feel that there was a question of incompetency.” The habeas court also credited the testimony of Bums and Hutchinson, who both testified in support of the finding that “there certainly was in no way any issue of [the petitioner’s] competency.” On those bases, the habeas court concluded that DeCaprio’s performance had not been deficient, and thus that the petitioner had not been denied the effective assistance of counsel at trial. The court, accordingly, denied the petition for a writ of habeas corpus. The petitioner sought certification to appeal the habeas court’s decision, which the habeas court granted, and this appeal followed.

“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 established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense .... Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn. App. 133, 135-36, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).

“Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Id., 137. Accordingly, a court need not consider the prejudice prong if it determines that the petitioner has failed to meet the burden of proving deficient performance. Id., 143; see also Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991).

In determining that the petitioner failed to prove that his attorneys rendered ineffective assistance, the habeas court credited the testimony of each of the petitioner’s attorneys, as it was free to do, that they never had any reason to question the petitioner’s competency at the time of trial. Based upon that testimony, the habeas court determined that there was no ineffectiveness of counsel, as claimed by the petitioner, and thus that the petitioner failed to satisfy the first prong of Strickland, rendering expert medical testimony regarding that competency unnecessary. “As an appellate court, we do not reevaluate the credibility of testimony, nor will we do so in this case. The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ” (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn. App. 725, 736, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010). Because the habeas court’s conclusion is amply supported by the record, we cannot conclude that it was in error.

The petitioner also claims that the habeas court improperly denied his request to admit into evidence the report and testimony of his psychological and cognitive forensic expert. Although the habeas court denied the petitioner’s offer, it did so with the qualification that it would not admit it at that “stage of the game” because the medical testimony and report were not relevant to the inquiry as to DeCapiio’s performance. The petitioner asserts that when the issue before the court is whether counsel is ineffective for failing to request a competency examination, the performance and prejudice prongs of Strickland are intertwined, and thus that the court should have permitted the testimony and report at issue into evidence. Not only is the petitioner’s claim devoid of any basis in our law, but it is contrary to extensive authority that an ineffective assistance claim can be defeated by the failure of the petitioner to prove either deficient performance or resulting prejudice. We thus conclude that the habeas court properly applied the Strickland test to the petitioner’s claim.

The judgment is affirmed.

       General Statutes § 54-56d provides in pertinent part: “(a) A defendant shall not be tried, convicted or sentenced while he is not competent. . . . [A] defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. . . .
      “(c) If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       We note that, as a practical matter, the petitioner’s claims as to his two prior habeas attorneys rests upon the determination that DeCaprio did not render ineffective assistance in failing to request a competency evaluation because, as a result of that determination, the petitioner could not, as a matter of law, prove prejudice.


text:
    JEFFREY R. STENNER v. COMMISSIONER OF CORRECTION
    (AC 34164)
    Lavme, Robinson and Keller, Js.

      Submitted on briefs April 12
    —officially released July 23, 2013

      Laljeebhai R. Patel, assigned counsel, filed a brief for the appellant (petitioner).

      Scott J. Murphy, former state’s attorney, Rita M. Shair, senior assistant state’s attorney, and Brenda Hans, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jeffrey R. Stenner, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas coipus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and that the denial of his petition for a writ of habeas corpus was improper because his trial counsel rendered ineffective assistance by failing to investigate adequately and to present to the jury the theory that a coconspirator had reason to kill the victim. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to the petitioner’s appeal. On August 22, 2001, the petitioner was arrested and charged with one count of murder in violation of General Statutes §§ 53a-54a and 53a-8 following the death of Robert Schmidt. See State v. Stenner, 281 Conn. 742, 744, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007). After being found guilty following a jury trial, the court sentenced the petitioner to sixty years of incarceration. Our Supreme Court affirmed his conviction. See id.

On August 12, 2011, the petitioner filed an amended habeas coipus petition alleging that his trial counsel, Brian Woolf, provided ineffective assistance because he failed to (1) hire an investigator to conduct an effective investigation, (2) effectively present evidence that someone other than the petitioner had a motive to murder the victim, (3) call several witnesses who would have supported the petitioner’s defense, (4) object to the introduction of a coconspirator’s hearsay statement on sixth amendment grounds and (5) effectively impeach coconspirators. Following the habeas trial, the habeas court denied the petition for a writ of habeas coipus. The petitioner requested certification to appeal from the denial of the petition for a writ of habeas coipus and set forth the ground for the appeal in his application for waiver of fees, costs and expenses and appointment of counsel on appeal. In that application, the petitioner set forth the following as the basis for his appeal: “Confrontation violated pursuant to 6th amendment.” The habeas court denied the petition for certification. This appeal followed.

We begin with our standard of review. “Faced with the habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) .... First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citation omitted; internal quotation marks omitted.) Mejia v. Commissioner of Correction, 112 Conn. App. 137, 144, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009).

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification because his trial counsel rendered ineffective assistance by failing to investigate adequately and to present to the jury the theory that a coconspirator had reason to kill the victim. The petitioner’s application for waiver of fees, costs and expenses and appointment of counsel on appeal, however, cites “[confrontation violated pursuant to 6th amendment” as his statement of grounds on appeal. Neither the petition for certification to appeal nor the application for waiver of fees, costs and expenses and appointment of counsel included claims related to the adequacy of investigation or the advancement of an alternative theory of defense.

“This court has determined that a petitioner cannot demonstrate that a habeas court abused its discretion in denying a petition for certification to appeal on the basis of issues that were not actually raised in the petition for certification to appeal. . . . Under such circumstances, the petition for certification to appeal could not have apprised the habeas court that the petitioner was seeking certification to appeal based on such issues. ... A review of such claims would amount to an ambuscade of the [habeas] judge.” (Citations omitted; internal quotation marks omitted.) Campbell v. Commissioner of Correction, 132 Conn. App. 263, 267, 31 A.3d 1182 (2011). Because the petitioner failed to raise the claims that he now alleges in his petition for certification to appeal or in his application for waiver of fees, costs and expenses and appointment of counsel, we decline to afford them review. See Tutson v. Commissioner of Correction, 144 Conn. App. 203, 217, 72 A.3d 1162 (2013); Campbell v. Commissioner of Correction, supra, 267.

The appeal is dismissed.


text:
    JANCIS FULLER v. COMMISSIONER OF CORRECTION
    (AC 34175)
    Lavine, Alvord and Bear, Js.

      Argued May 23
    —officially released July 23, 2013

      JancisL. Fuller, self-represented, the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom were Stephen Finucane, law student intern, and on the brief, George Jepsen, attorney general, for the appellee (respondent).
   Opinion

PER CURIAM.

The self-represented petitioner, Jancis Fuller, appeals from the judgment of the habeas court dismissing her petition for a writ of habeas corpus for want of jurisdiction. On appeal, the petitioner claims that the habeas court improperly dismissed her petition. We affirm the judgment of the habeas court.

The petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). The petitioner received an effective sentence of thirty years in the custody of the respondent, the commissioner of correction. See State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). The petitioner’s prior petitions for a writ of habeas corpus were either denied or dismissed. See Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817 A.2d 1274 (petition denied), cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003); Fuller v. Commissioner of Correction, 93 Conn. App. 736, 890 A.2d 620 (petition dismissed as abuse of writ), cert. denied, 278 Conn. 914, 899 A.2d 620 (2006).

On July 22, 2010, the petitioner filed a petition for a writ of habeas corpus in which she alleged that her incarceration was illegal because “(1) the parole board unfairly and arbitrarily held the petitioner responsible for the fact that she had not completed her [offender accountability plan] and denied parole ... (2) the parole board’s decision to order that the petitioner’s next parole hearing be held in March, 2015, caused a major disruption in the petitioner’s life in violation of the due process clause of the 14th Amendment to U.S. Constitution.” The court reviewed the petition and sent the petitioner a letter that stated: “This is to acknowledge receipt of your petition for a writ of habeas corpus. It has been assigned docket number .... The [h]abeas [c]orpus petition is declined and is being returned because the court lacks jurisdiction per . . . Practice Book § 23-24 (a) (l).” The letter was dated August 18, 2010, and was signed by the court. The petitioner filed a motion for reconsideration that was denied by the court. The court granted the petitioner certification to appeal from the dismissal of her habeas petition.

“[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... [W]here the court rendering the judgment lacks jurisdiction of the subject matter the judgment itself is void.” (Internal quotation marks omitted.) Baker v. Commissioner of Correction, 281 Conn. 241, 248-49, 914 A.2d 1034 (2007).

Baker controls our decision in this appeal. “ [T]he writ of habeas corpus [has] evolved as a remedy available to effect discharge from any confinement contrary to the [constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction.” (Internal quotation marks omitted.) Id., 249. “[T]he principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. ... To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.” (Internal quotation marks omitted.) Id., 250-51. “[I]n order to invoke successfully the jurisdiction of the habeas court, a petitioner must allege an interest sufficient to give rise to habeas relief.” (Internal quotation marks omitted.) Id., 251. “In order to . . . qualify as a constitutionally protected liberty, [however] the interest must be one that is assured either by statute, judicial decree, or regulation.” (Emphasis in original; internal quotation marks omitted.) Id., 252. “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the [s]tate may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the [constitution.” (Internal quotation marks omitted.) Id.

The United States Supreme Court has recognized that “[t]here is no constitutionally or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. ... A state may . . . establish a parole system, but it has no duty to do so.” (Citations omitted.) Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 90 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). “[W]hether and to what extent a state creates a liberty interest in parole by state statute is entirely at the discretion of the state.” Baker v. Commissioner of Correction, supra, 281 Conn. 253.

In Baker, our Supreme Court examined Connecticut’s parole eligibility statute; General Statutes (Rev. to 2001) § 54-125a, as amended by Public Acts, Spec. Sess., June, 2001, No. 01-9, § 74; to determine whether it conferred a liberty interest on a petitioner for a writ of habeas corpus. See Baker v. Commissioner of Correction, supra, 281 Conn. 254-56. The court saw “no indication in § 54-125a that the legislature intended to assure an inmate’s parole eligibility status . . . .” Id., 256. “[T]he regulations promulgated by the [parole] board pursuant to [General Statutes] § 54-125a (c) do not in any way limit its discretion in parole eligibility decisions.” Id., 257. “Prison classification and eligibility for various rehabilitation programs, wherein prison officials have full discretion to control those conditions of confinement do not create a statutory or constitutional entitlement sufficient to invoke due process. Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 496 (1990), citing Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976).” (Internal quotation marks omitted.) Coleman v. Commissioner of Correction, 111 Conn. App. 138, 142, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).

Contrary to the petitioner’s assertions, “parole eligibility ... is not within the terms of the sentence imposed.” (Internal quotation marks omitted.) Baker v. Commissioner of Correction, supra, 281 Conn. 260, quoting State v. Faria, 254 Conn. 613, 627, 758 A.2d 348 (2000). Our Supreme Court has concluded that “parole eligibility under § 54-125a does not constitute a cognizable liberty interest sufficient to invoke habeas jurisdiction.” Baker v. Commissioner of Correction, supra, 261-62. The court therefore properly dismissed the petition for a writ of habeas corpus.

The judgment is affirmed.

       The substance of the petitioner’s claim is that the respondent failed to make available to her the programs she needs to complete her offender accountability plan.

       Practice Book § 23-34 (a) provides in relevant part: “The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that:
      “(1) the court lacks jurisdiction . . . .”

       The petitioner refers to the state’s parole system in general, and the petition does not allege a particular statute. We, nonetheless, direct our attention to § 54-125a (a), which provides in relevant part: “A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board . . . for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require that there is a reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society. ...” (Emphasis added.) General Statutes (Rev. to 2001) § 54-125a (a), as amended by Public Acts, Spec. Sess., June, 2001, No. 01-9, § 74.

       “Since it is clear that an inmate has no liberty interest in or right to parole release, it follows that he cannot invoke a court’s subject matter jurisdiction in a habeas action by claiming his confinement is illegal based on a parole board’s [alleged] failure to adhere to rule-making procedures.” Vincenzo v. Warden, 26 Conn. App. 132, 143-44, 599 A.2d 31 (1991).


author: BEACH, J.

text:
    418 MEADOW STREET ASSOCIATES, LLC v. ONE SOLUTION SERVICES, LLC
    (AC 34046)
    Gruendel, Beach and Alvord, Js.

      Argued April 15
    —officially released July 23, 2013

      William J. Ward, for the appellant (defendant).

      Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellee (plaintiff).
   Opinion

BEACH, J.

The principal question in this appeal is whether the trial court properly applied the appropriate standard in determining that two members who jointly held a 50 percent interest in the plaintiff 418 Meadow Street Associates, LLC (418 Meadow Street), had standing to initiate this lawsuit on behalf of 418 Meadow Street without the consent of its third member, who held the remaining 50 percent. We reverse the judgment and remand the case to the trial court for further proceedings.

In a prior opinion regarding this controversy, this court set forth the following relevant facts and procedural history. “Barbara Levine and Steven Levine were the original owners of [418 Meadow Street] . . . until [Steven] Levine sold his 50 percent interest to Michael Weinshel and Mark Wynnick, making them joint owners with Barbara Levine. Thus, Weinshel and Wynnick collectively own 50 percent of the company and Barbara Levine owns the remaining 50 percent. On September 3, 2008, Weinshel and Wynnick brought this action on behalf of [418 Meadow Street] to recover damages from the defendant [One Solution Services, LLC] for breach of their lease agreement. On February 26, 2009, the defendant answered the complaint, denying that it breached the agreement. The defendant pleaded by way of a special defense that [418 Meadow Street] brought the action without the proper authority of [its] members, and, therefore, it lacked standing to maintain the action.” 418 Meadow Street Associates, LLC v. One Solution Services, LLC, 127 Conn. App. 711, 712-13, 15 A.3d 1140 (2011).

The court entered a default judgment against the defendant and held a hearing in damages, after which it awarded 418 Meadow Street total damages in the amount of $66,508.40. The defendant, through counsel, filed a motion to “reopen and reargue.” The court denied the motion to open the default judgment. The defendant appealed to this court, claiming the court erred in denying its motion to open the default judgment in that the court improperly failed to address standing and to determine if it had subject matter jurisdiction. Id. This court reversed the denial of the defendant’s motion to open the default judgment and remanded the case to the trial court to address the defendant’s claim as to standing. Id., 718.

On remand, the defendant filed a motion to open and vacate the judgment on the ground that the plaintiff lacked standing. The court noted that the action was brought by two members of 418 Meadow Street, Weins-hel and Wynnick, without the consent of the third, Barbara Levine. The court rejected the defendant’s claim that the two members of 418 Meadow Street lacked standing to bring the action. Pursuant to its operating agreement, a majority of the ownership interest in 418 Meadow Street was required to authorize expenditures such as legal expenses; consistently, General Statutes § 34-142 (a) provides that, unless otherwise stated in the operating agreement, “the approval ... of a majority in interest . . . shall be required to decide matters related to the business or affairs of a limited liability company.” The court observed that General Statutes § 34-187 (b) provides that “[i]n determining the vote required under § 34-142 for purposes of this section, the vote of any member . . . who has an interest in the outcome of the suit that is adverse to that of the limited liability company shall be excluded.”

There was no dispute that the dispositive issue was whether Barbara Levine had an interest in the outcome of the present action that was adverse to that of 418 Meadow Street. The defendant’s claim was that Barbara Levine’s interest was not adverse, and that 418 Meadow Street thus lacked the majority vote necessary to confer standing. The court found that Weinshel and Wynnick brought the present action without the consent of the third member of 418 Meadow Street, Barbara Levine. The court found that although Barbara Levine did not have a proprietary interest in the defendant, she was “an individual who ha[d] an adverse interest in the outcome of this suit . . . .” The court determined that Weinshel and Wynnick had standing to bring the action without Barbara Levine’s consent because, pursuant to § 34-187 (b), she had an interest that was adverse to that of the other members of 418 Meadow Street. The court stressed the importance of other actions involving 418 Meadow Street between Barbara Levine and the remaining two members. The court denied the defendant’s motion to open and vacate the judgment. This appeal followed.

The defendant claims that the court erred in finding that Weinshel and Wynnick had standing to bring the present action without Barbara Levine’s consent because of animosity between her and the other two members of 418 Meadow Street. The defendant argues that the court’s analysis of whether Barbara Levine’s interest was “adverse” under § 34-187 (b) was defective because it focused on animosity between Barbara Levine and the other members of 418 Meadow Street, rather than on whether Barbara Levine’s interest was adverse to the interest of 418 Meadow Street. We agree.

“A determination regarding atrial court’s subject matter jurisdiction is a question of law. . . . When the trial court draws conclusions of law, appellate review is plenary, and the reviewing court must decide whether the trial court’s conclusions are legally and logically correct.” (Citation omitted.) Bloom v. Dept. of Labor, 93 Conn. App. 37, 39, 888 A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d 992 (2006).

General Statutes § 34-187 provides: “(a) Except as otherwise provided in an operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited Lability company by: (1) Any member or members of a limited Lability company, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of aL members shall be required pursuant to subsection (b) of section 34-142; or (2) any manager or managers of a limited liabihty company, if the articles of organization vest management of the limited LabiLty company in one or more managers, who are authorized to sue by the vote required pursuant to section 34-142.

“(b) In determining the vote required under section 34-142 for purposes of this section, the vote of any member or manager who has an interest in the outcome of the suit that is adverse to the interest of the limited liability company shall be excluded.” (Emphasis added.)

Under § 34-187, if Barbara Levine’s interest in the outcome of the present suit was adverse to that of 418 Meadow Street, her vote properly would have been excluded, and Weinshel and Wynnick would have had standing to bring the present action. In determining whether Barbara Levine’s interest was “adverse” under § 34-187 (b), however, the court focused on “the litany of cases involving [418 Meadow Street] which has caused a great deal of animosity between [Barbara] Levine and the two remaining members,” as well as other factors which demonstrated animosity between Barbara Levine and the other two members of 418 Meadow Street, rather than on whether her interest in the outcome of the present litigation was adverse to the interest of 418 Meadow Street. According to § 34-187 (b), the appropriate inquiry is whether a member “has an interest in the outcome of the suit that is adverse to the interest of the limited liability company.” In 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 304 Conn. 820, 43 A.3d 607 (2012), our Supreme Court defined the term “adverse” as used in § 34-187 (b) as follows: “As almost universally defined, ‘adverse’ means opposed to one’s interest. . . . Simply put, the term ‘adverse’ in § 34-187 (b) encompasses any interest of a member that is contrary or opposed to the limited liability company’s interest in the outcome of the litigation.” (Citations omitted.) Id., 831-32. We remand the case to the trial court for a factual determination, using the appropriate standards, of whether Barbara Levine’s interest in the outcome of the present litigation was adverse to the interest of 418 Meadow Street.

The judgment denying the defendant’s motion to open and vacate the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant’s attorney moved to withdraw, and the court granted him permission to withdraw. At the scheduled trial date, when Steven Levine, one of the defendant’s managing members, arrived without counsel, the court rendered a default judgment against the defendant, reasoning that Steven Levine was unable to represent the defendant as a self-represented party and thus, in essence, the defendant failed to appear.