author: SHELDON, J.

text:
    JOYCE SNYDER v. GLADEVIEW HEALTH CARE CENTER ET AL.
    (AC 35474)
    Beach, Sheldon and Keller, Js.

      Argued February 14—
    officially released April 29, 2014

      Kenneth J. McDonnell, with whom, on the brief, was William P. Monigan, for the appellant (plaintiff).

      Douglas M. Connors, with whom, on the brief, was Samuel I. Reich, for the appellees (defendants).
   Opinion

SHELDON, J.

The plaintiff Peter Snyder, as the executor of the estate of his deceased wife, Joyce Snyder (claimant), appeals from the decision of the Workers’ Compensation Review Board (board) affirming the ruling of the Workers’ Compensation Commissioner (commissioner) that a stipulated settlement that was prepared by the defendant Gladeview Health Care Center, but signed only by the claimant, was not enforceable. On appeal, the plaintiff claims that: (1) the defendant was bound by the stipulated settlement; (2) the commissioner was required to approve the stipulated settlement absent evidence of fraud, accident, mistake or surprise; and (3) the board erred in affirming the commissioner’s denial of the plaintiffs motion to correct. We disagree with the plaintiff, and thus affirm the decision of the board.

The following facts and procedural history are relevant to our resolution of the plaintiffs claims. The claimant was employed by the defendant as a registered nurse for approximately ten years. On January 22,1997, she sustained a lower back injury during the corase of her employment with the defendant. As a result of that injury, the claimant underwent three surgeries on her spine and was unable to return to work. At the time of the claimant’s third surgery, her treating physician noticed that she had an abnormally low white blood cell count and referred her to an oncologist, who diagnosed her as suffering from acute myelogenous leukemia, of which she informed the defendant.

The claimant and the defendant began discussing the possibility of settling her workers’ compensation case in October, 2003. On or about January 21, 2011, as part of an anticipated final settlement of the case, the United States Department of Health and Human Services approved a proposed Medicare set-aside trust, which was to have paid the claimant $2512 annually, commencing on February 24, 2012, and continuing until the date of her death or February 24, 2022, whichever occurred first. In addition to this Medicare set-aside account, the defendant agreed to make a single final payment to the claimant in the amount of $75,000.

On February 3, 2011, the defendant sent the claimant an electronic version of the full and final stipulation it had drafted for her approval and requested that her counsel schedule an approval hearing before the commissioner. On February 4, 2011, the claimant signed the stipulation in the presence of her attorney, her husband and another witness, and her counsel requested a hearing before the commissioner to approve the stipulation. The following day, on February 5, 2011, the claimant died because of complications from leukemia.

On February 8, 2011, by way of an e-mail, the defendant’s counsel acknowledged receipt of the claimant’s hearing request form. Thereafter, on March 1, 2011, counsel for the claimant and the defendant appeared for the scheduled hearing before the commissioner with the intention of presenting the stipulation for approval. At the hearing, however, the claimant’s counsel informed the commissioner and the defendant’s counsel of the claimant’s recent death. Upon learning that the claimant had died, the defendant, through counsel, withdrew its consent to submitting the proposed stipulation for the commissioner’s approval. The hearing was therefore adjourned without presenting the stipulation to the commissioner for approval.

On October 4, 2011, at the plaintiffs request, counsel for the claimant and the defendant appeared before the commissioner at a formal hearing where they were permitted to present evidence on the issue of whether the stipulation should be approved. Thereafter, on February 2, 2012, the commissioner issued a written ruling denying the plaintiffs request to approve the stipulation and dismissing his claim. In paragraph six of the ruling, the commissioner noted that “[t]he settlement was never properly before a commissioner nor was it approved prior to the claimant’s death, nor did the [defendant] sign the settlement documents.” On February 16, 2012, the plaintiff filed a motion to correct this paragraph of the commissioner’s ruling, seeking to strike that paragraph and replace it with the following language: “The settlement was properly before the commissioner on March 1, 2011 when the [defendant] appeared through counsel at the scheduled hearing to approve the parties’ written stipulation and then, after learning that the claimant had passed away, the [defendant’s] counsel refused to physically sign a hard copy of its own written stipulation and withdrew its request that the [cjommission approve the written stipulation.” The commissioner denied the plaintiffs motion to correct on February 21, 2012.

The plaintiff subsequently appealed from the commissioner’s rulings to the board, which affirmed the commissioner’s order of dismissal, finding that “when an agreement which is not executed by both parties is presented to the [c]ommission for approval it is axiomatic that both parties must assent to its approval at that hearing. The trial commissioner . . . reviewed the circumstances herein carefully, and provided a clear rationale for his decision not to approve the settlement. As the conclusions of the trial commissioner are consistent with precedent, they are not contrary to law.” This appeal followed.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. . . . Statutory construction is a question of law and therefore our review is plenary. . . .

“Although the [Workers’ Compensation Act (act), General Statutes § 31-275 et seq.] does not explicitly provide for [stipulated settlement agreements], we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation. . . . [0]nce an agreement is reached, [General Statutes § 31-296 provides that] a commissioner may approve the agreement if it conforms in every regard to the provisions of chapter 568 of the General Statutes. . . . Approval of ... a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the act. . . . Once approved, an Award by Stipulation is a binding award which, on its terms, bars a farther claim for compensation unless [General Statutes §] 31-315, which allows for modification, is satisfied.” (Citations omitted; footnote altered; internal quotation marks omitted.) O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 335-37, 784 A.2d 428 (2001), cert. denied, 259 Conn. 914, 792 A.2d 852 (2002).

The plaintiff first argues that the defendant was bound by the written stipulation because it prepared the stipulation for the claimant and the claimant signed and agreed to it before her death. In support of this argument, the plaintiff asserts that the commissioner failed to follow board precedent such as Festa v. Hamden, No. 3052, CRB 3-95-4 (October 16, 1996), and Drozd v. Connecticut/DMR Southbury Training School, No. 5158, CRB 5-06-11 (October 19, 2007). We are not persuaded.

In Festa, the plaintiff and the defendants, through their counsel, reported to the commissioner at a formal hearing that they had reached an agreement to settle the plaintiffs case arising from his compensable elbow injury. At the hearing, counsel for the parties explained the terms of the proposed settlement, and the plaintiff stated that he understood its terms. At a subsequent hearing on the defendants’ motion to enforce the stipulation, the plaintiff testified before a different commissioner that he is a diabetic and has bouts of hypoglycemia that render him dizzy and confused. That commissioner found that at the time the settlement was being discussed at the prior hearing, the plaintiff was suffering from such an attack and did not fully understand the terms of the settlement. The plaintiff never signed the agreement, and, in denying the defendants’ motion to enforce the agreement, the commissioner declared it to be null and void. The defendants petitioned the board for review of the commissioner’s decision, arguing that the record revealed that the plaintiff understood the nature of the stipulation and that he should not be allowed to change his mind after agreeing to it. The board disagreed with the defendants, ruling that the stipulation could not be enforced against the plaintiff because “there was significant doubt as to the [plaintiff’s] capacity to understand the nature and extent of the stipulation . . . coupled with the fact that the [plaintiff] never actually signed the stipulation . . . ."

The plaintiff misstates the holding of Festa by asserting that the board in that case held that the signatures of both parties were not required before a stipulation could be approved by the commissioner. Although the board in that case noted the fact that the plaintiff before it had never signed the stipulation, that was not the determinative factor upon which the board relied in ruling on the stipulation’s enforceability. The facts presented to the board in Festa are different from those in the present case for several reasons. In Festa, unlike in this case, the plaintiff had not signed the stipulation prior to its submission to the commissioner for approval. Further, the issue in Festa did not center around the fact that the plaintiff had not signed the stipulation, but rather around the plaintiffs mental capacity to understand the nature and the extent of the stipulation in light of the hypoglycemic attack he had suffered on the morning of the approval hearing. At no point in its decision in Festa did the board hold that a stipulation without the plaintiffs physical signature still would be a valid and binding agreement on the parties. Thus, the plaintiffs use of Festa to support the argument that the commissioner in this case acted arbitrarily in holding that the defendant was required to sign the stipulation is unavailing.

The plaintiff also relies on Drozd v. Connecticut/DMR Southbury Training School, supra, No. 5158, CRB 5-06-11, for the proposition that it would not be inequitable under the facts of the present case to enforce the agreement against the defendant. We disagree. In Drozd, counsel for the defendant had advised the commissioner of the terms of a proposed settlement of the plaintiffs case, which the commissioner had approved subject to its memorialization in writing. On the day of the hearing to approve the settlement, counsel for the defendant reported that he did not have the authority to settle because the defendant had rescinded its offer. The plaintiff moved to enforce the unexecuted agreement, which was denied by the commissioner and upheld by the board on appeal. In affirming the commissioner’s ruling that the settlement agreement was not enforceable, the board held that the agreement had not been reduced to writing and that it would not enforce an oral agreement against one of the parties. The board explained that even if a defendant acts inequitably by not executing a settlement agreement, a commissioner lacks the authority to enforce the agreement against it without its consent. In the present case, the commissioner properly did not enforce the agreement against the defendant because the defendant had not consented to the agreement, as evidenced by its refusal to sign the settlement documents.

The plaintiff next argues that, in the absence of evidence of fraud, accident, mistake or surprise, the commissioner was required to approve the parties’ stipulation. In support of this argument, the plaintiff relies on this court’s decision in O'Neil v. Honeywell, Inc., supra, 66 Conn. App. 338-39. The defendant responds that O’Neil is inapplicable, arguing instead that this case is controlled by Secola v. Connecticut Comptroller’s Office, No. 3102, CRB 5-95-06 (February 26, 1997). We agree with the defendant.

In O’Neil, the administratrix of the decedent’s estate appealed to this court from the board’s ruling affirming the commissioner’s decision to open and set aside the parties’ approved stipulation. The parties had negotiated a full and final settlement of the decedent’s case arising from a compensable spinal injury, and both parties signed a stipulation setting forth the terms of the settlement in September, 1996. On October 4,1996, the decedent died from an accidental overdose of prescription drugs. Without notifying the defendant second injury fund of the decedent’s death, counsel for the decedent presented the stipulation to the commissioner at a hearing about which the defendant was never provided notice. The stipulation was approved by the commissioner at that hearing. The defendant was later notified of the decedent’s death and moved to open the approved stipulation. The commissioner granted the motion in order to afford the defendant another hearing, at which the defendant would have the opportunity to object to the approval of the stipulation if it chose to do so. The plaintiff appealed from this ruling to the board, which upheld the commissioner’s decision. The plaintiff appealed to this court from the board’s affirmance of the commissioner’s ruling, and this court reversed the decision of the board, holding that the commissioner did not have the authority to open and set aside the approved stipulation absent evidence of fraud, accident, mistake or surprise.

O’Neil is distinguishable from the present case for several reasons. O’Neil involved the opening of a previously approved agreement, not the commissioner’s threshold decision of whether or not to approve a stipulated agreement between the parties, as is the case here. Both the decedent and the defendant in O’Neil had signed the stipulated agreement, and it had been approved by the commissioner without knowledge of the decedent’s death. In the present case, by contrast, only the claimant had signed the stipulated agreement prior to her death, and the commissioner never approved it. This court stated in O’Neil that, “-under the recognized grounds for equitable interference . . . neither the court nor the plaintiff had a duty to inform the defendant of the approval hearing and the claimant’s death after the agreement was signed, and their failure to do so could not have affected the defendant’s ability to make a defense because the parties already had reached a ‘full, final and complete’ settlement of all claims arising from the injury.” (Emphasis in original.) O’Neil v. Honeywell, Inc., supra, 66 Conn. App. 339. Because, in the present case, we are not presented with a settlement agreement executed by both parties and approved by the commissioner before the claimant’s death, O’Neil does not govern this claim. Rather, we conclude that Secola, which is more factually similar to the present case, provides us with clear guidance on the issue presented.

In Secóla, the board reviewed the commissioner’s refusal to approve a stipulation that both parties had signed and agreed to prior to the claimant’s death from cancer. Secola v. Connecticut Comptroller’s Office, supra, No. 3102, CRB 5-95-06. The commissioner found that the insurer was not informed of the claimant’s cancer diagnosis during settlement negotiations and that her illness had a direct effect on the amount of future benefits for which the defendant might be hable. Id. The board affirmed the commissioner’s decision, stating that “protecting the employee’s rights does not mean ignoring the rights of the employer or insurer. Fairness and equity are two-way streets, and the commissioner is certainly entitled to consider more than the claimant’s position in deciding whether a stipulation should be approved.” Id. The board concluded that, “[j]ust as the commissioner is entitled to reject a stipulation if the claimant has second thoughts, he may exercise his authority to withhold approval of a stipulation if the respondent no longer concords with its terms when it is submitted for ratification.” Id.

The holding of Secola is instructive in the present case. Here, although the defendant had not signed the stipulation, as had the defendant in Secóla, the commissioner found that the defendant was no longer in agreement with the stipulation at the time it was submitted to the commissioner for approval. “The commissioner . . . may exercise his authority to withhold approval of a stipulation if the respondent no longer concords with its terms when it is submitted for ratification.” Secola v. Connecticut Comptroller’s Office, supra, No. 3102, CRB 5-95-06. The board applied the findings of Secóla to the present case and determined that there were no equitable considerations favoring enforcement of the settlement agreement against the defendant. “Where the commissioner has reason to suspect that the . . . stipulation is no longer agreed to by both parties at the time it is being offered for approval ... he is entitled to reject that agreement.” Considine v. Slotnik, No. 3468, CRB 04-96-11 (May 6, 1998). Simply stated, “no stipulation is binding until it has been approved by the commissioner.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480, 650 A.2d 1240 (1994). Without the commissioner’s approval, the stipulation between the parties could not be operative within the confines of the act. The commissioner’s findings support his decision to deny approval of the stipulation. We therefore affirm his decision.

The plaintiff last argues that the board erred in affirming the commissioner’s denial of the plaintiffs motion to strike and motion to correct because the commissioner’s findings in paragraph six of his ruling were not supported by the evidence and were contrary to material facts that were admitted or undisputed. We disagree.

“ [T]he finding of a commissioner cannot be corrected by striking out or adding paragraphs, unless the record discloses that he has found facts without evidence, or failed to include material facts which were admitted or undisputed . . . Palumbo v. George A. Fuller Co., 99 Conn. 353, 356-57, 122 A. 63 (1923). The plaintiff, by way of motion, sought to correct and to strike the commissioner’s finding of fact that “[t]he settlement was never properly before a commissioner nor was it approved prior to the claimant’s death, nor did the [defendant] sign the settlement documents.” The plaintiff moved to replace this finding with language stating that the settlement was properly before the commissioner and that, after learning that the claimant had died, the defendant’s counsel withdrew its request that the commissioner approve the written stipulation.

The record in this case does not reveal that the commissioner’s findings were unsupported by the evidence. By contrast, the plaintiffs suggested substituted findings, had they been accepted by the board, would not have been supported by the evidence or by undisputed facts. There is nothing in the record to suggest that the stipulation was properly before the commissioner at the time of the hearing. Rather, because the defendant had not executed the stipulation and withdrew its consent to submit the stipulation for approval, the stipulation was never properly before the commissioner. For the commissioner to find otherwise, or for the board to have reversed the commissioner’s dismissal of the plaintiffs motion to correct and motion to strike, would have been contrary to the evidence presented and the undisputed facts of this case. Thus, because the commissioner’s findings in paragraph six were supported by the evidence, we conclude that the board did not err in affirming the commissioner’s denial of the plaintiffs motion to strike and motion to correct.

The decision of the Workers’ Compensation Review Board is affirmed.

In this opinion the other judges concurred.

       Arrowhead Capital Corporation, the workers’ compensation insurer for the defendant Gladeview Health Care Center, also is a defendant and a party on appeal. For convenience, we refer in this opinion to Gladeview Health Care Center as the defendant.

       General Statutes § 31-296 (a) provides in relevant part: “If an employer and an injured employee ... at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, the commissioner shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. . . .”

       At the time the stipulation was scheduled for approval by the commissioner, the defendant was unaware that the claimant had died three weeks prior, and counsel for the defendant testified at the formal hearing before the commissioner that, “[h]ad [he] known that there were health issues aside from the workers’ compensation claim, [his] advice to them would have been to consider whether or not they wanted to go forward with a full and final stipulation since a stipulation would necessarily involve future uncertain benefits, and with a person of declining health they may have wished to forgo settling that case since there was no present benefit that was being paid or was being threatened at that time.” The claimant in the present case disclosed her medical records showing her diagnosis of leukemia, but her counsel withheld the information of her death from the defendant prior to the approval hearing before the commissioner. By contrast, the decedent in Secóla had withheld her terminal illness diagnosis from the defendant prior to the parties’ execution of the stipulation.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    DISCIPLINARY COUNSEL v. BENSON A. SNAIDER
    (AC 35736)
    Lavine, Keller and Borden, Js.

      Argued February 7—
    officially released April 29, 2014

      Ira B. Grudberg, for the appellant (defendant).

      Suzanne B. Sutton, first assistant chief disciplinary counsel, with whom was Desi Imetovski, assistant disciplinary counsel, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Benson A. Snaider, formerly of the Connecticut bar, appeals from the judgment of the trial court rendered after the court accepted his resignation from the bar and imposed discipline pursuant to Practice Book § 2-47 (d). On appeal, the defendant claims that (1) the court’s acceptance of his resignation constituted a final judgment and therefore the court (a) had no authority to impose discipline on him, and thereby (b) denied him due process of law, and (2) the court imposed discipline that is unfair and unreasonable given his age, namely, seventy-five years old. We disagree with the defendant and, thus, affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On October 13, 2011, pursuant to Practice Book § 2-42, the plaintiff, Disciplinary Counsel, acting through Attorney Suzanne B. Sutton, first assistant chief disciplinary counsel, applied for an order of interim suspension of the defendant’s license to practice law, alleging that he had misappropriated the funds of a client. The defendant admitted that he had misappropriated his client’s funds, but challenged the amount of the misappropriation. Following a hearing held on November 3, 2011, the court found that the defendant had committed professional misconduct by misappropriating the funds of a client and that he presented “a threat of irreparable harm to current and potential clients.” The court suspended the defendant’s license to practice law, appointed a trustee to protect the interests of his clients, and ordered the Statewide Grievance Committee to conduct an audit of his trustee accounts.

On July 10, 2012, the plaintiff filed a request to amend its application from an interim order of suspension to a presentment complaint (presentment), pursuant to Practice Book §§ 2-40 and 2-47. The presentment alleged two counts related to the defendant’s misappropriation of his client’s funds and was filed subsequent to a decision issued by the Statewide Grievance Committee and the defendant’s felony conviction, both of which occurred after the defendant’s license to practice law was suspended.

The court scheduled a hearing on the presentment to be held on November 16, 2012. On October 26, 2012, however, the defendant submitted to the Superior Court his resignation from the bar without conditions. The November 16,2012 hearing was continued for unrelated reasons, and on November 21, 2012, the court accepted the defendant’s resignation from the bar. The court continued the presentment proceedings to permit the parties to present evidence as to mitigating and aggravating circumstances regarding the discipline to be imposed. The defendant, however, argued that, because the court had accepted his resignation, the court lacked personal jurisdiction to discipline him for the misconduct alleged in the presentment. Counsel for the plaintiff disagreed. Thereafter, the parties submitted briefs on the issue of the court’s jurisdiction over the defendant. On March 26, 2013, the court concluded that it had jurisdiction to determine when the defendant could apply, if ever, for readmission to the bar.

The parties appeared before the court on April 29, 2013. The plaintiff presented evidence of aggravating factors with regard to the defendant’s misconduct and argued that he should not be permitted to apply for readmission for twelve years. The defendant presented no evidence but argued that, given his age and the fact that he had practiced law for fifty years without misconduct, he should be permitted to apply for readmission to the bar in five years. The court issued its order on May 8, 2013, prohibiting the defendant from applying for readmission to the bar for twelve years from April 29, 2013. The defendant appealed.

Before we address the defendant’s specific claims on appeal, we set forth the overarching principles articulating the relationship between the Superior Court and members of the bar. “The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar. . . . The judiciary has the power to admit attorneys to practice and to disbar them ... to fix the qualifications of those to be admitted . . . and to define what constitutes the practice of law. ... In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility [now Rules of Professional Conduct].” (Citations omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553-54, 663 A.2d 317 (1995).

“Disciplinary proceedings axe for the purpose of preserving the courts from the official ministration of persons unfit to practice in them.” (Internal quotation marks omitted.) Ex parte Wall, 107 U.S. 265, 288, 2 S. Ct. 569, 27 L. Ed. 552 (1882). “The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court. . . . Once the complaint is made, the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require. . . . [T]he power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct and the purging of the bar from the taint of unfit membership. Such statutes as ours are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct. ... In proceedings such as those at issue, therefore, the attorney’s relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238-39, 558 A.2d 986 (1989).

I

The defendant first claims that, after it accepted his resignation from the bar pursuant to Practice Book § 2-52, the court improperly modified its judgment by disciplining him, i.e., ordered that he was not permitted to apply for readmission to the bar for twelve years, pursuant to Practice Book § 2-47 (d). We disagree, concluding that the court’s order disciplining the defendant is consistent with the comprehensive disciplinary scheme established to safeguard the public and the court from unfit practitioners. See Massameno v. Statewide Grievance Committee, supra, 234 Conn. 554. Moreover, a presentment is justiciable if the alleged misconduct occurred prior to the attorney’s suspension or disbarment on an unrelated matter. See Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 524-33, 871 A.2d 380 (2005) (trial court had jurisdiction to adjudicate presentment of disbarred lawyer), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).

“[A] challenge to the personal jurisdiction of the trial court is a question of law, and, therefore, our review is plenary.” Investment Associates v. Summit Associates, Inc., 132 Conn. App. 192, 202, 31 A.3d 820 (2011), aff'd, 309 Conn. 840, 74 A.3d 1192 (2013).

The following additional facts are relevant to our resolution of this claim. During the November 21, 2012 hearing, the court accepted the defendant’s resignation from the bar and stated: “The court will accept the resignation, and again, I’m going to hear argument as I understand it on when [the defendant] could apply for readmission . . . .”

After the court inquired whether there were questions, counsel for the defendant argued that, because the defendant had resigned from the bar, the court lacked jurisdiction to enter an order of discipline. Moreover, he argued, it is the responsibility of the Connecticut Bar Examining Committee to determine if the defendant may ever apply for readmission. The court stated that it would retain jurisdiction and that it would hear argument as to when the defendant could apply for readmission. The plaintiff was seeking a twelve year period and the defendant was willing to accept a five year period. The defendant also continued to argue, on the basis of his resignation, that a final judgment had been rendered, and the court no longer had jurisdiction over him. The parties briefed the issue of jurisdiction and appeared before the court to argue the matter on March 26,2013. The court concluded that it had jurisdiction to issue a disciplinary order.

On April 29,2013, the court heard evidence presented by the plaintiff, including evidence that the defendant had been charged with larceny in the first degree for allegedly misappropriating the funds of a second client, and heard argument from both counsel as to when the defendant should be permitted to apply for readmission. The court issued an order on May 8, 2013, stating, in part, that it had jurisdiction to adjudicate the presentment and that the defendant “is not eligible to apply for readmission to the Connecticut [b]ar for a period of twelve years from April 29, 2013. He will be subject to the imposition of such conditions upon his application for reinstatement as may be deemed appropriate at that time.” See footnote 7 of this opinion.

On appeal, the defendant argues that, at the time his resignation was before the court, the court could have pursued one of several options: (1) defer ruling on his resignation until it had heard evidence and argument with regard to further sanctions; (2) decline to accept the resignation and adjudicate the presentment pursuant to Practice Book § 2-47 (d); or (3) decline to accept Ms resignation unless it included a satisfactory limitation on Ms right to apply for readmission. It is the defendant’s position that, when the court accepted Ms resignation, it rendered a final judgment, wMch defined Ms rights and status, and any further action by the court as to him constituted a modification of the judgment.

The defendant grounds Ms claim, in part, in Practice Book (2012) § 2-52 (b), wMch was in effect at the time of the November 21, 2012 hearing. The defendant argues that under the 2012 version of § 2-52 (b), wMch concerns the resignation of an attorney, the court did not have the authority or discretion to impose “such other discipline as the court deems appropriate.” The defendant notes that that language is contained in Practice Book § 2-47 (d), which governs presentments. He concludes therefore that, in 2012, § 2-47 (d), not § 2-52, permitted the court to restrict the ability of a person who has been disbarred to apply for readmission.

To support his argument, the defendant relies on one of the tenets of statutory construction: “[w]here a statute, with reference to one subject contains a given provision, the omission of such provision for a similar statute concerning a related subject ... is significant to show that a different intention existed.” (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Consequently, the defendant concludes that because the court accepted his resignation pursuant to Practice Book (2012) § 2-52 (b), it was powerless to impose disciplinary sanctions that he did not volunteer in his resignation.

We disagree with the defendant because Practice Book §§ 2-47 (d) and 2-52 (b) are functionally different. Section 2-47 is the method by which alleged attorney misconduct is brought to the attention of the Superior Court by the disciplinary counsel. Section 2-52 is an option available to an attorney under investigation by a grievance panel, reviewing committee or the Statewdde Grievance Committee or against whom a presentment for misconduct is pending to resign from the bar without a trial. In his case, the defendant exercised his option to resign from the bar. His resignation, however, did not foreclose the imposition of discipline. Moreover, under our common law, the court has broad discretion to discipline an attorney to protect the court from individuals who are unfit to practice law. See Massameno v. Statewide Grievance Committee, supra, 234 Conn. 553-54.

“There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court.” In the Matter of Presnick, 19 Conn. App. 340, 347, 563 A.2d 299 (1989), cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). “That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs as to achieve an orderly and expeditious disposition of cases.” Id. “[Reference to specific rules does not constitute the only basis for a finding of guilt in attorney misconduct proceedings. Rather, reference to a specific rule simply assists the trial court in drawing its conclusions as to whether, under the totality of circumstances, professional misconduct occurred.” Statewide Grievance Committee v. Botwick, 226 Conn. 299, 310, 627 A.2d 901 (1993).

Our conclusion that the court had jurisdiction over the defendant to impose discipline after it accepted his resignation is controlled by this court’s decision in Statewide Grievance Committee v. Burton, supra, 88 Conn. App. 523. In Burton, this court determined that the trial court had subject matter jurisdiction over “an attorney who was disbarred subsequent to the events alleged in the presentment . . . because the issue is justiciable.” Id., 524. In the present case, the misconduct alleged in the presentment, also, was justiciable.

Burton concerned an attorney who had been disbarred in 2001 for misconduct related to a civil action commenced later than December, 1999. Burton v. Mottolese, 267 Conn. 1, 3, 835 A.2d 98 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004). In January, 2004, the Statewide Grievance Committee filed a presentment against Nancy Burton for misconduct that occurred in 1995. Id. Burton filed a motion to dismiss the presentment claiming that the trial court lacked subject matter jurisdiction because she was no longer a member of the bar. Statewide Grievance Committee v. Burton, supra, 88 Conn. App. 524. The trial court agreed and dismissed the presentment. The Statewide Grievance Committee filed an appeal to this court, which reversed the judgment of dismissal, concluding that the issue of Burton’s alleged 1995 misconduct was justiciable in that an adjudication of the presentment would provide both actual and practical relief to the parties. Id., 531. This court’s reasoning in Burton informs our analysis in this case.

The Burton presentment “concerns an incident that occurred in 1995, alleging misconduct that occurred before [Burton] was disbarred. [General Statutes § 51-90e] and Practice Book § 2-47 concern the misconduct of attorneys. [E]ach disciplinary action must be decided on its own particular facts in order to determine the appropriate discipline. . . . We therefore conclude that the court can adjudicate the 1995 incident to determine whether [Burton’s] alleged conduct was, in fact, misconduct. That determination can be made irrespective of [Burton’s] current status.” (Citations omitted; internal quotation marks omitted.) Id., 529-30.

A comprehensive disciplinary scheme exists “to safeguard the administration of justice, and [is] designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners.” (Internal quotation marks omitted.) Id., 530. “An attorney, as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. . . . Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.” (Internal quotation marks omitted.) Id., 530-31.

In Burton, this court noted that a person who has been disbarred has the right to apply for readmission pursuant to Practice Book § 2-53 and that the Superior Court may reinstate, as an attomey-at-law, a person who has been disbarred. Id., 531. Under the terms of Burton’s disbarment, she had the right to apply for readmission after five years. “The appropriate inquiry when deciding whether to grant admission to the bar is whether the applicant has present fitness to practice law. . . . Fitness to practice law does not remain fixed in time.” (Emphasis in original; internal quotation marks omitted.) Id.

In Burton, this court concluded that there was a practical benefit to both Burton and the Statewide Grievance Committee to resolve the matter concerning the 1995 conduct sooner, rather than later. Id. “A resolution of the controversy also will benefit the courts and the public, the third party beneficiaries of our attorney disciplinary system. If, and when, [Burton] seeks to apply for readmission to the bar, [her] record before the bar admission committee will be more complete if this matter is adjudicated. The issue to be decided is whether [Burton’s] conduct with respect to the 1995 incident violates our code of professional conduct.

“With respect to [Burton], we foresee a possible impediment to her applying for readmission to the bar if the 1995 incident remains unresolved. We cannot anticipate how the absence of a decision will be considered by the bar examining committee that would review [her] application for readmission. Alternatively, if [Burton] is readmitted to the bar, will she immediately be faced with a presentment related to the 1995 incident?” Id., 531-32. Moreover, the Superior Court is not limited to suspending or disbarring an attorney from the practice of law. Id., 532. “Practice Book § 2-47 (a) does not limit the Superior Court to those two forms of discipline, as it may impose ‘such other discipline as the court deems appropriate.’ ” Id.

For the same reasons, the court here had jurisdiction to adjudicate the defendant’s presentment, despite the fact that he voluntarily had resigned from the bar. Although the defendant had resigned, there was no finding by the court as to the presentment allegations of misappropriation and what discipline, if any, should be imposed. Practice Book § 2-47 (b) provides: “The sole issue to be determined in a disciplinary proceeding predicated upon conviction of a felony, any larceny or crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed shall be the extent of the final discipline to be imposed.”

In the trial court and in this court, the defendant stated that he had lived his life as an attorney and wanted to die as an attorney. Given his age, the defendant asked that he be permitted to apply for readmission to the bar sooner rather than later. Without an adjudication of the allegations of the presentment now, the defendant may have had to face a similar presentment if he ever were to apply for readmission to the bar. As in Burton, it was to the benefit of the parties, as well as the court, to resolve the matter now.

For the foregoing reasons, we conclude that the court had jurisdiction to adjudicate the presentment and to impose discipline after it accepted the defendant’s resignation from the bar.

II

The defendant’s second claim is that the court denied him due process of law by imposing discipline beyond that contained in his letter of resignation. We disagree.

“Procedural due process is a required constitutional right adhering to those attorneys who are subject to disciplinary actions so that they are not unjustly deprived of their reputations or livelihoods. ... A defendant attorney is entitled to notice of the charges and a fair hearing.” (Citation omitted.) Statewide Grievance Committee v. Gifford, 76 Conn. App. 454, 461, 820 A.2d 309 (2003).

In this case, the court held a hearing on the application for an order of interim suspension of the defendant’s license to practice law. Thereafter, pursuant to the plaintiffs request, the application was amended to a presentment. The defendant did not object to the presentment, but chose to resign from the bar. Immediately after accepting the defendant’s resignation, the court stated that it would retain jurisdiction to determine the discipline to be imposed. The court afforded the defendant the opportunity to brief the question of its jurisdiction and a hearing. The court also provided the defendant with an opportunity to present evidence related to mitigating factors to consider regarding discipline.

The defendant predicates his claim on the 2013 amendments to Practice Book (2013) § 2-52, particularly the addition of subsection (e), which provides: “Acceptance by the court of an attorney’s resignation from the bar without the waiver of right to apply for readmission to the bar at any time in the future shall not be a bar to any other disciplinary proceedings based on conduct occurring before or after the acceptance of the attorney’s resignation.” The defendant argues that subsection (e) broadens the power of the trial court to impose new disciplinary sanctions on a resigning attorney after the court accepts the resignation. That language, the defendant argues, is substantive in nature and may be applied prospectively only. We disagree with the defendant’s claim, as the sanction imposed by the court was imposed pursuant to the misconduct alleged in the presentment complaint; see Practice Book § 2-47 (d); about which the defendant had fair notice and a hearing. See Statewide Grievance Committee v. Botwick, supra, 226 Conn. 308.

We agree that an attorney against whom misconduct is alleged in a presentment has the option to resign from the bar. See Practice Book § 2-52. The resignation from the bar, however, does not terminate the presentment proceeding in its entirety. It only terminates a part of the process by sparing the attorney from a trial as to the misconduct alleged in the presentment. The court is endowed with authority to impose discipline pursuant to Practice Book § 2-47 (d).

Our case law holds that an attorney faced with allegations of misconduct is entitled to notice and a hearing. See In the Matter of Presnick, supra, 19 Conn. App. 349. The application for an order of interim suspension and subsequent presentment gave the defendant notice of the allegations of misconduct against him. Our review of the transcript of the proceedings before the court indicate that the court afforded the defendant a hearing on multiple occasions, the opportunity to brief his legal claims, the opportunity to present evidence, and the opportunity to argue to the court. The defendant received the due process to which he was entitled, and his claim therefore fails.

Ill

The defendant’s last claim is that the discipline imposed by the court is unfair and unreasonable. We do not agree.

“As long as there is no denial of due process, we conclude that this court may, for good cause, discipline attorneys who practice before it by suspending them from practice in this court for a reasonable and stated period.” In the Matter of Presnick, supra, 19 Conn. App. 349. The substance of the plaintiffs claim is that given his age, a twelve year prohibition against applying for readmission to the bar, may constitute permanent disbarment, which is contrary to our law. “Connecticut does not acknowledge permanent disbarment. Permanent does not mean forever. [D]isbarment is not punishment for a crime, but, rather the withdrawal of a privilege . . . .” (Internal quotation marks omitted.) In re Application of Avcollie, 43 Conn. Supp. 13, 20, 637 A.2d 409 (1993).

We acknowledge the legal precept cited by the defendant, but the fact that he was seventy-five years old when the court imposed discipline in May, 2013, is not relevant to our review of the court’s exercise of discretion in imposing a term of twelve years before the defendant may apply for readmission to the bar. The relevant facts are the defendant’s misconduct. The court was presented with evidence of gross and unconscionable misconduct on the part of the defendant with respect to the funds of two of his clients. The defendant admitted to misappropriating approximately $800,000 of a Ghent’s funds, although he claimed that the sum was much less. He failed to cooperate with the Statewide Grievance Committee’s audit of his trustee accounts. In a criminal proceeding in Stamford, he was convicted of larceny in the first degree for the misappropriation of $800,000 and given a suspended sentence of five years imprisonment. Thereafter, the defendant was arrested following a hearing that there was probable cause that he had misappropriated approximately $175,000 from a second client. After finding that the defendant had misappropriated almost $1 million from two clients, the court found that he caused substantial injury to his clients and poses a substantial threat of harm to any prospective client. Moreover, accepting the premise of the defendant’s argument would produce absurd results. Pursuant to the defendant’s logic, a ninety year old lawyer who stole similar amounts would deserve only a slap on the wrist. The proposition that older lawyers who steal from their clients should be rewarded for the length of their membership in the bar is dubious, to say the least. On the basis of the evidence and the court’s findings, we cannot conclude that the court abused its discretion by ordering that the defendant may not apply for readmission to the bar for a period of twelve years from April 29, 2013. We also cannot conclude that the discipline is unfair and unreasonable given the defendant’s age.

IV

Our review of the trial court file discloses that it states that the case was disposed of on November 21, 2012, and that a final judgment was rendered on that date. See footnote 8 of this opinion. There are clerical errors in the record as to when final judgment was rendered and the case disposed of. Pursuant to our supervisory powers; see Practice Book § 60-2; we direct the court to order a rectification of those clerical errors in the trial court file so that the file conforms to the facts and the law.

The judgment is affirmed and the case is remanded with direction to order a rectification of the trial court record in accordance with this opinion.

In this opinion the other judges concurred.

       Practice Book § 2-42 provides in relevant part: “(a) If there is a disciplinary proceeding pending against a lawyer . . . and the grievance panel, the reviewing committee, the statewide grievance committee or the disciplinary counsel believes that the lawyer poses a substantial threat of irreparable harm to his or her clients or to prospective clients . . . the panel or committee shall so advise the disciplinary counsel. The disciplinary counsel shall, upon being so advised or upon his or her own belief, apply to the court for an order of interim suspension. The disciplinary counsel shall provide the lawyer with notice that an application for interim suspension has been filed and that a hearing will be held on such application.
      “(b) The court, after hearing, pending final disposition of the disciplinary proceeding, may, if it finds that the lawyer poses a substantial threat of irreparable harm to his or her clients or to prospective clients, enter an order of interim suspension, or may order such other interim action as deemed appropriate. Thereafter, upon good cause shown, the court may, in the interest of justice, set aside or modify the interim suspension or other order entered pursuant hereto. . . .”

       The defendant refused to comply with the Statewide Grievance Committee’s request for information pertaining to his trust accounts. The plaintiff filed a motion for contempt to which the defendant objected on the basis of the constitutional privilege against self-incrimination. On March 21, 2012, the court overruled the defendant’s objection and ordered him to produce the documents necessary to conduct the audit. The defendant filed a notice of intent to appeal the court’s ruling on April 4, 2012, and a motion for stay of the court’s order relative to the trust accounting. The court denied the defendant’s motion for stay on June 5, 2012. See Practice Book § 61-11 (b) (attorney disciplinary orders are not automatically stayed during appeal).

       Practice Book § 2-40 (a) provides in relevant part: “The clerk of the superior court location in this state in which an attorney is convicted of a serious crime as defined herein shall transmit, immediately upon the imposition of sentence, a certificate of the conviction to the disciplinary counsel and to the statewide grievance committee. The attorney shall also notify the disciplinary counsel in writing of his or her conviction. The disciplinary counsel or designee shall, pursuant to Section 2-47, file a presentment against the attorney predicated upon the conviction. . . . The filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a maximum penalty of a period of incarceration of one year or less.”

       Practice Book § 2-47 provides in relevant part: “(a) Presentment of attorneys for misconduct, whether or not the misconduct occurred in the actual presence of the court, shall be made by written complaint of the disciplinary counsel. Service of the complaint shall be made as in civil actions. ... [A] hearing on the merits of the complaint shall be held within sixty days of the date the complaint was filed with the court. At such hearing, the respondent shall have the right to be heard in his or her own defense and by witnesses and counsel. After such hearing the court shall render a judgment dismissing the complaint or imposing discipline as follows: reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate. This may include conditions to be fulfilled by the attorney before he or she may apply for readmission or reinstatement. . . .
      “(b) The sole issue to be determined in a disciplinary proceeding predicated upon conviction of a felony, any larceny or crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed shall be the extent of the final discipline to be imposed.”

       On April 11, 2012, in the judicial district of Stamford, the defendant pleaded guilty to the charge of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). He was given a suspended sentence of five years imprisonment.

       The defendant’s letter was addressed to the Superior Court for the judicial district of New Haven and stated: “In accordance with the provisions of Superior Court Rule § 2-521 do hereby submit my resignation as an attorney admitted to the Connecticut Bar. This action supersedes my letter dated April 11, 2012.” We are unable to find in the record the April 11, 2012 letter to which the defendant referred.

       In its May 8, 2013 order the court stated: “On November 21, 2012 the court accepted the [defendant’s] resignation from the practice of law. The [plaintiff] requested the [defendant] be prohibited from applying for reinstatement to the Connecticut [b]ar for a period of twelve years. The [defendant] argues this court has no jurisdiction over his applying for reinstatement and therefore no time limit should be imposed. The [defendant] is [seventy-five] years old.
      “This court does have jurisdiction over this matter. Byway of background the [defendant] admitted the misappropriation of [a] client[’s] funds in the approximate amount of $800,000. He entered a guilty plea to larceny in the first degree in Stamford Superior Court in 2012. He was not sentenced to prison. He received a suspended sentence.
      “Subsequent to his conviction in Stamford, he was arrested for misappropriating $175,000 from another client. This larceny in the first degree charge is currently pending against the [defendant] in Milford Superior Court.
      “[The defendant] is a convicted felon who stole approximately $800,000 from a client in Stamford. There has been a probable cause finding that he stole another $175,000 from a client in Milford.
      “He has intentionally misappropriated substantial amounts of his clients’ funds for his own purposes. He has caused substantial injury to his clients. He is very fortunate, as of now, not to be incarcerated. He poses a substantial threat of harm to any prospective client.
      “The [defendant] is not eligible to apply for readmission to the Connecticut [b]ar for a period of twelve years from April 29, 2013. He will be subject to the imposition of such conditions upon his application for reinstatement as may be deemed appropriate at that time.”

       Subsequent to the November 21, 2012 proceeding during which the court accepted the defendant’s resignation, the clerk’s office issued the following order. “After hearing had, and in accordance with Practice Book § 2-52, I hereby find that Benson A. Snaider, Juris No. 371721, has knowingly and voluntarily resigned from the bar of the State of Connecticut. I hereby accept his resignation.
      “The court hereby retains jurisdiction concerning this matter.”
      The defendant attempts to bolster his final judgment argument by pointing out that on November 21, 2012, after the court accepted his unconditioned resignation, a notice from the court issued on a preprinted form entitled “FINAL JUDGMENT.” The notice states, in part: “Judgment without trial for . . . Other (JWT).” The notice indicates that it was sent to counsel on “12/21/12.”
      Our review of the electronic file indicates that the signature at the bottom of the page entitled Final Judgment is illegible and none of the boxes indicating who signed the form is checked, i.e., assistant clerk, court officer, casefiow coordinator. See part IV of this opinion.

       Practice Book (2012) § 2-52 entitled “Resignation of Attorney,” provides in relevant part: “(a) The superior court may, under the procedure provided herein, permit the resignation of an attorney whose conduct is the subject of investigation by a grievance panel, a reviewing committee or the statewide grievance committee or against whom a presentment for misconduct under Section 2-47 is pending.
      “(b) Such resignation shall be in writing signed by the attorney, and filed . . . with the clerk of the superior court in the judicial district in which the attorney resides .... Such resignation shall not become effective until accepted by the court after a hearing following a report by the statewide grievance committee, whether or not the attorney seeking to resign shall, in the resignation, waive the privilege of applying for readmission to the bar at any future time.”

       The defendant also seeks to strengthen his argument by referring to the 2013 amendment to § 2-52, specifically the addition of Practice Book (2013) § 2-52 (e), which provides in relevant part: “Acceptance by the court of an attorney’s resignation from the bar without the waiver of the right to apply for readmission to the bar at any time in the future shall not be a bar to any other disciplinary proceedings based on conduct occurring before or after the acceptance of the attorney’s resignation.”
      In response to this argument, the plaintiff contends that the additional language does not change the court’s ability to impose sanctions on an attorney who has resigned from the bar in 2012. The plaintiff draws our attention to the official commentary to Practice Book (2013) § 2-52 (e), which provides in relevant part: “The amendments . . . require the court to make a finding of misconduct before it can accept the resignation. This amendment is necessary to assure that lawyers who resign and waive here in Connecticut will be subject to a finding of misconduct, which will be useful to disciplinary authorities in other jurisdictions where the attorney is admitted or may seek admission. Currently, some states do not consider a resignation and waiver without a finding of misconduct as the imposition of discipline. As a result, attorneys who have resigned and waived here in the face of allegations of very serious misconduct have been allowed to retain their licenses in other states, such as New York.”

       During argument to the trial court on April 29, 2013, counsel for the defendant stated: “[The defendant] would like to be able to call himself a lawyer at some point before he dies . . .

       The defendant’s jurisdictional argument appears rooted in his dissatisfaction with the court’s prohibiting him from applying for readmission to the bar for a period of twelve years. The defendant seems to argue that he exercised the option to resign from the bar and that is discipline enough. The record suggests that the defendant first was willing to resign from the bar with the option to apply for readmission after five years. After the plaintiff opposed the brevity of five years and argued for a period of twelve years before the defendant could apply for readmission, the defendant withdrew his offer to resign and submitted a letter of resignation from the bar without conditions. The defendant also had been arrested and charged with larceny in the first degree with respect to the misappropriation of the funds of a second client. Following his resignation from the bar, in addition to claiming that the court lacked jurisdiction over him to impose discipline, the defendant asked, due to his age, that the court order that he be permitted to apply for readmission to the bar after five years. The defendant’s real concern therefore appears to have been, not the court’s jurisdiction, but the length of the discipline the court could impose.

       The American Bar Association has promulgated standards for the imposition of sanctions. See Burton v. Mottolese, supra, 267 Conn. 55. “[A]fter a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney’s mental state; (3) the potential or actual injury stemming from the attorney’s misconduct; and (4) the existence of aggravating or mitigating factors. A.B.A Standards for Imposing Lawyer Sanctions (1986) standard 3.0, p. 25 . . . .” Burton v. Mottolese, supra, 55.
      The aggravating factors include: “(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; [and] (j) indifference to making restitution.” (Internal quotation marks omitted.) Id.
      The mitigating factors include: “(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (1) remorse; [and] (m) remoteness of prior offenses.” (Internal quotation marks omitted.) Id., 55-56.

       At the time of oral argument in this court, counsel for the defendant represented that the defendant was incarcerated. The defendant pleaded guilty to larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), and was sentenced to a term of eight years imprisonment, execution suspended after two years, and five years of probation. This court may take judicial notice of a case involving the same parties. See, e.g., State v. Bunkley, 202 Conn. 629, 648, 522 A.2d 795 (1987).

       The defendant has asked this court to consider his representation that he practiced law for fifty years without discipline and was an attorney trial referee. His plea is unavailing and unwarranted in that it is he who chose to take his clients’ funds near the end of his legal career, which resulted in ending his professional life in disrepute. Moreover, substantial legal experience is an aggravating, not a mitigating, factor to be considered. See footnote 13 of this opinion.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. RYAN C. WRIGHT
    (AC 33894)
    DiPentima, C. X, and Keller and Borden, Js.

      Argued December 4, 2013—
    officially released April 29, 2014

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      Paul J. Narducci, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Ryan C. Wright, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. On appeal, the defendant claims that the trial court (1) improperly precluded him from presenting evidence of third party culpability by using the incorrect standard and erroneously finding that the evidence was not relevant, and (2) improperly declined to charge the jury on the quality of the police investigation. We affirm the judgment of the court.

The jury reasonably could have found the following facts. On December 9, 2008, at approximately 11:15 p.m., several guests at a hotel in Groton reported to the front desk clerk, Robert Harvey, that they heard several gunshots. Harvey noted these calls in the front desk logbook and then walked around the perimeter of the hotel. He did not see anything suspicious, but noticed a white car leaving the hotel parking lot.

The following morning, a member of the housekeeping staff alerted Harvey that there appeared to be a person lying in the doorway of room 130. Harvey went to room 130 to investigate and observed a man lying face down in the doorway. After nudging the body several times and receiving no response, he noticed bullet shell casings on the floor and called the police.

Upon arriving at the scene, police recovered two spent .40 caliber Smith & Wesson shell casings from the hallway just outside of room 130 and four additional spent shell casings from inside the room. The victim was identified as Jamel Campbell and the autopsy report indicated that he had suffered two gunshot wounds to the chest and abdomen, a gunshot wound to the neck, and several gunshot wounds to the head. Ballistic evidence indicated that the same gun fired all six bullets and discharged all six bullet shell casings.

Near the victim was a set of car keys. The police located the car associated with the keys in the hotel parking lot, and determined that the car was registered to Emily Strother, the victim’s girlfriend and mother of his child. After speaking with Strother and several of the victim’s friends, the police learned that the victim might have made plans to meet with Meagan Foley at the hotel the night of his death.

When police first spoke with Foley, she informed them that she had communicated with the victim only a few times on December 9, 2008, via text messaging. The victim’s phone records, however, indicated more than fifty communications between the victim and Foley on the day in question, including both text messages and telephone calls. When confronted with this information during a second interview, Foley told the police that there was a “blood feud” between the victim and the defendant. Upon receiving this information, the police interviewed the defendant, and during the interview, the defendant denied any involvement in the victim’s death and provided the police with two telephone numbers where the police could reach him. The police then sought, obtained, and executed a search warrant for the defendant’s residence. The search, however, did not yield any relevant evidence or information.

In addition to searching the defendant’s home, the police obtained search warrants for the cell phone records of Foley, the victim and the defendant. When police analyzed the text messaging records of the victim and the defendant for the twenty-four hours preceding the victim’s death, the records revealed that the defendant and Foley had planned for Foley to lure the victim to the hotel so that the defendant could kill him.

Foley testified at trial that she had been friends with both the defendant and the victim for approximately ten years before the victim’s death and that she had corresponded regularly with both of them. She testified that the victim had become angry with the defendant in November, 2008, when he had learned that the defendant had had sexual relations with Strother while the victim was incarcerated in 2007. She further testified that the victim had told her that he and a friend, Pablo Colon, had met the defendant at a gas station in the defendant’s neighborhood and had stolen the defendant’s car, had removed the stereo equipment and rims, and had left the car in Hartford.

Foley testified that the defendant also spoke to her about the altercation he had with the victim at the gas station and that the defendant became increasingly angry every time he discussed the event with her. At one point, the defendant told Foley that, on multiple occasions, he had waited outside her home when he thought the victim was visiting in order to kill him when he exited the house. Afraid that the defendant would kill the victim at her home and that her family might be harmed, Foley testified that she suggested to the defendant that he kill the victim at a hotel and that she helped the defendant plan the murder, and lure the victim to the hotel room.

Foley testified that she and the defendant had agreed that Foley would lure the victim to the hotel and that the defendant had given Foley money to rent the room. Foley stated that she had text messaged the victim and had made plans to meet the victim at the hotel that evening. Foley told the victim that she had lost her identification and would not be able to reserve the hotel room, but that she would give him the money for the room if he reserved it. The victim drove to Foley’s residence the evening of his death and picked up the money for the room. Foley testified that she called the victim and he told her that he had reserved room 130 at the hotel. Foley then testified that she called the defendant after speaking with the victim and told the defendant that the victim was staying in room 130.

Foley further testified that at one point, the victim text messaged her and said he was going to leave the hotel. Foley relayed this information to the defendant, and then convinced the victim to stay by telling him that she was almost at the hotel. Very shortly thereafter, Foley received a text message from the defendant saying, “Done.” Foley received no more communications from the victim.

The defendant was arrested and charged by substitute information with murder in violation of § 53a-54a (a) and conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a). The jury found the defendant guilty of conspiracy to commit murder, but was unable to come to a unanimous decision on the murder charge. The court rendered judgment in accordance with the jury’s verdict of guilty on the conspiracy to commit murder charge, and declared a mistrial as to the murder charge. On August 8,2011, the defendant was sentenced to twenty years incarceration for conspiracy to commit murder. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court erred by improperly precluding him from presenting evidence of third party culpability. He argues that the court (1) used the improper standard to determine whether the evidence of third party culpability should have been admitted, and (2) erroneously found that the evidence was not relevant. We do not agree.

The following additional facts are necessary for our resolution of this claim. The state filed a motion in limine requesting that the court preclude evidence concerning third party culpability unless the defendant showed some evidence that directly connected a third party to the crimes with which the defendant was charged. The motion further requested that the court require the defendant to make an offer of proof prior to introducing evidence of alleged third party culpability so that the court could determine its admissibility outside of the presence of the jury. The court granted the state’s motion.

The defendant sought to offer evidence of third party culpability through the testimony of Valerie Reinhart, who had been a friend of the victim for several years. During the defendant’s offer of proof, Reinhart was questioned outside of the presence of the jury. She testified that she had known the victim for three years and that approximately one-half hour before the victim’s murder, he had told her that someone was threatening him because he had “burnt somebody for Ecstasy pills” and had “messed with the wrong person.” Rein-hart further testified that the victim did not provide the name of the person who threatened him, did not describe the person involved, did not specifically indicate when the threats occurred, and did not describe the nature of the threats.

The court found that, although the defendant had a constitutional right to present a defense, he did not have a right to present evidence that was not relevant. The court further found that Reinhart’s testimony was “so nebulous and certainly not so direct in the court’s mind that it would be relevant and serve any purpose with respect to a claim of third party culpability or that it was not the defendant who committed these particular crimes. Even if the jury were to hear that type of testimony, in my mind, that still does not absolve, so to speak, or even potentially absolve [the defendant] from being found to be the perpetrator of the alleged crimes that he’s charged with here. So while [the defendant] certainly has the right to present a defense, he has presented witnesses with respect to his defense of not being the perpetrator, the court does not believe that the evidence that this witness would give rises to a level that it becomes relevant and/or introductory for the purpose for which it is sought to be admitted.” Accordingly, the court granted the state’s motion in limine and sustained the state’s objection to the evidence.

A

On appeal, the defendant argues that the court used the wrong standard to determine whether the evidence should have been admitted. The defendant’s claim has no merit.

“[Wjhether the court applied the correct legal standard is a question of law subject to plenary review.” (Internal quotation marks omitted.) Carraway v. Commissioner of Correction, 144 Conn. App. 461, 471, 72 A.3d 426 (2013). “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . State v. Genotti, 220 Conn. 796, 803-804, 601 A.2d 1013 (1992), quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). ... The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense. . . . A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002).

“We have recognized consistently that a defendant has a right to introduce evidence that indicates that someone other than the defendant committed the crime with which the defendant has been charged. State v. Sauris, 227 Conn. 389, 401, 631 A.2d 238 (1993); State v. Hernandez, [224 Conn. 196, 202,618 A.2d 494 (1992)]; State v. Echols, [203 Conn. 385, 392, 524 A. 2d 1143 (1987)]. The defendant must, however, present evidence that directly connects a third party to the crime .... State v. Hernandez, supra, 202. It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . State v. Echols, supra, 392.” (Internal quotation marks omitted.) State v. Ceretta, supra, 260 Conn. 262-63.

The defendant argues that the court excluded the evidence based on its conclusion that Reinhart’s testimony would not absolve the defendant, which, the defendant argues, contravenes the applicable standard that the court must admit evidence of third party culpability if the evidence directly connects a third party to the crime alleged. See State v. Hernandez, supra, 224 Conn. 202; State v. Echols, supra, 203 Conn. 392. In viewing the court’s oral decision on the state’s motion in limine as a whole, however, although the court did find that it believed that Reinhart’s testimony would not absolve the defendant of the alleged crime, it is quite evident from the court’s other findings that the court used the appropriate standard in making its determination to exclude the evidence.

Before making its decision, the court stated that the relevant case law on admitting third party culpability evidence required a court to admit such evidence if, considering the evidence in the light most favorable to the defendant, the defendant establishes a “direct connection” between the alleged third party and the charged offense. The court then went on to find that Reinhart’s “testimony based upon the offer of proof [was] so nebulous and certainly not so direct in the court’s mind that it would be relevant and serve any purpose with respect to a claim of third party culpability or that it was not the defendant who committed these particular crimes.” It is evident from this finding that the court considered whether the defendant established a direct connection between the alleged third party and the crime with which the defendant was charged. Accordingly, we conclude that the court used the appropriate standard when deciding whether the evidence of alleged third party culpability should have been admitted.

B

The defendant also claims that the court erroneously found that the defendant’s offered evidence of alleged third party culpability was not relevant. We do not agree.

“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.” State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 743 (1995). Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. ... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991).” (Citation omitted; internal quotation marks omitted.) State v. Ceretta, supra, 260 Conn. 261-62. “Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. Saunders, 267 Conn. 363, 383, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004). Finally, “[t]he trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Francis, 267 Conn. 162, 174, 836 A.2d 1191 (2003).

The defendant contends that Reinhart’s testimony was relevant, and, therefore, admissible because it established that someone other than the defendant had the motive and intent to harm the victim. Although the existence of the threats against the victim by a third party would tend to show that someone other than the defendant had the motive and intent to harm the victim, that showing alone is insufficient to render the evidence admissible. See State v. Cerrata, supra, 260 Conn. 263 (“[i]t is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused” [internal quotation marks omitted]).

At oral argument before this court, the defendant conceded that Reinhart’s testimony was ambiguous as to when the victim actually received the alleged threatening text messages, but argued that evidence of a threat by a third party was very significant as to the relevancy of the evidence, and should have been given more weight by the court when it made its decision. The defendant did not provide any authority and we are unable to find any that would support this argument. Further, Reinhart was unable to identify the alleged third party, provide a description of the alleged third party or describe the nature of the alleged threats. In light of the record before us, we conclude that it was reasonable for the court to find that the defendant failed to establish a direct connection between the alleged third party and the crimes with which the defendant was charged, as the testimony provided by Reinhart would merely create a bare suspicion that some other person may have murdered the victim. The court did not abuse its discretion in excluding Reinhart’s testimony.

II

The defendant also claims that the court improperly declined to charge the jury on the quality of the police investigation. He argues that he elicited sufficient evidence at trial to call into question the adequacy of the police investigation, and that questioning deficiencies in the police investigation to raise reasonable doubt is a recognized legal defense. Accordingly, the defendant argues that, as a matter of law, he was entitled to a jury charge as to his theory of defense. We do not agree.

The following additional facts are necessary for our resolution of this claim. The defendant’s theory of defense advanced at trial was that a third party killed the victim and that the police failed to identify this third party because they prematurely focused on the defendant as the culprit. Through the cross-examination of Officers Donald Rankin and Robert Emery, and Detective Keith Hoyt, the defense attempted to highlight alleged deficiencies in the police investigation. Specifically, the defense attempted to show that the police had secured the phone records of the defendant, the victim and Foley for only the twenty-four hours prior to the victim’s death, thereby failing to obtain all of the necessary phone records to ensure that a third party was not involved.

In closing argument, the defense argued that the police engaged in poor investigation practices and failed to obtain phone records that were necessary to ensure that a third party was not involved. Additionally, the defense argued that the police only investigated until they were “satisfied” that the defendant was guilty of the victim’s murder, and, therefore, failed to collect all relevant evidence available for the jury to make an informed decision.

The defense requested that the court charge the jury with the following instruction: “Investigation which is thorough and conducted in good faith may be more credible while an investigation which is incomplete, negligent or in bad faith may be found to have lesser value or no value at all. In deciding the credibility of the witnesses and the weight, if says to give the prosecution evidence, consider whether the investigation was negligent and/or conducted in bad faith.” The court denied the defense’s request to charge, citing State v. Collins, 299 Conn. 567, 599-600, 10 A.3d 1005 (2011). The court concluded that “whether the government conducted a thorough, professional investigation [was] not relevant to what the jury must decide.”

Dining the jury charge, the trial court gave the following instruction to the jury regarding reasonable doubt: “Here, as in all criminal prosecutions, the defendant is entitled to be innocent until proven guilty beyond a reasonable doubt. . . . As far as you are concerned, he is innocent and he continues to be innocent unless and until such time as all of the evidence produced here in the orderly conduct of this case considered in light of these instructions of law and deliberated upon by you in the jury room satisfy you beyond a reasonable doubt that he is guilty. . . . The burden to prove the defendant guilty of any crime you’re asked to deliberate upon is up to the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every essential element necessary to constitute the alleged crime being considered by you. Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony but on the nature and quality of the testimony. ... A reasonable doubt is an honest and reasonable uncertainty in your mind about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from lack of evidence. ...”

The defendant argues on appeal that through the cross-examination of the state’s witnesses, he produced sufficient evidence from which the jury could believe that the police investigation was not thorough, and that reasonable doubt, a recognized legal defense, could arise from a jury’s finding that law enforcement failed to investigate adequately the crime. Further, the defendant argues that because this is a recognized legal defense, the court was obligated as a matter of law to instruct the jury as to the defendant’s theory of defense, and that the court’s failure to do so impinged upon the defendant’s constitutional right to due process.

A proper instruction on a recognized legal defense is of constitutional magnitude. See, e.g., State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000). “Our standard of review in cases in which the defendant claims that the instructions were constitutionally deficient is whether it is reasonably possible that the instructions misled the jury. ... In assessing the claim, the jury charge must be read as a whole, not in artificial isolation from the overall charge. . . . The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . .” (Citations omitted; internal quotation marks omitted.) State v. Wall, 40 Conn. App. 643, 667, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996).

The defendant’s argument rests upon the principle that using evidence of an inadequate police investigation to create reasonable doubt is a recognized legal defense. The defendant’s argument is flawed in that the concept of reasonable doubt is not a recognized defense to a crime; see General Statutes § 53a-12 et seq.; but a standard by which the state must prove its case. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “The [reasonable doubt concept] provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [Id.], 363. At the same time, by impressing upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Jackson v. Virginia, [443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. [Nonetheless] [t]he [defendant] in a criminal case [is] entitled to a clear and unequivocal charge by the court that the guilt of the [defendant] must be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. LaSalle, 95 Conn. App. 263, 278, 897 A.2d 101, cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006).

The defendant does not challenge any segment of the court’s charge on reasonable doubt. He argues that the court erred by not including a charge instructing the jury that it was permitted to consider the quality of the police investigation in determining whether the state proved its case beyond a reasonable doubt. The defendant, however, fails to provide support for his argument that such a charge was required by the court.

The defendant relies on States v. Collins, supra, 299 Conn. 599-600, which held that “[a] defendant may . . . rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt, and that the trial court violates his right to a fair trial by precluding the jury from considering evidence to that effect.” Collins does not require a court to instruct the jury on the quality of police investigation, but merely holds that a court may not preclude such evidence and argument from being presented to the jury for its consideration, and the defendant in this case provides no other support for his argument.

In the present case, the defendant was allowed to elicit testimony from witnesses to suggest that there were deficiencies in the police investigation and was allowed to argue this theory in closing argument. Additionally, in its charge to the jury on reasonable doubt, the court instructed the jury that “[a] reasonable doubt may arise from the evidence itself or from lack of evidence.” We conclude that the defendant’s right to a fair trial was not impinged because he was given the opportunity to present evidence and argument regarding deficiencies in the police investigation to the jury. Accordingly, we conclude that the jury was not misled by the instructions given, and, therefore, there was no error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The police were not able to analyze Foley’s text messages as her cell phone provider, T-Mobile, does not retain the messages of its customers.

       The defendant reported his car, a Mercedes Benz, stolen to both the police and his insurance company. During the investigation of the victim’s murder, police found stereo equipment in the basement of the home the victim shared with Strother. The defendant later identified the stereo equipment and told the police that it had been in the car that had been stolen from him.

       Foley admitted at trial that this was a lie as she knew where her identification was when she told the victim that it was lost. She testified that she lied to the victim because the defendant had told her not to put the reservation in her name so that the police would not be able to trace the room back to her.