author: PETERS, J. A

text:
    IN RE GORDON C. ANDREWS’ APPEAL FROM PROBATE
    (AC 23447)
    Foti, DiPentima and Peters, Js.
    Argued May 29
    officially released July 29, 2003

      William, A. Phillips, for the appellant (plaintiff).

      William, J. Wenzel, for the appellee (defendant).
   Opinion

PETERS, J. A

testamentary estate must reimburse an executor for costs reasonably incurred for the benefit of the estate. The issue in this case is whether this principle requires the estate to pay attorney’s fees that an executor incurred in a dispute about the executor’s fees. Under the circumstances of this case, we agree with the trial court that the estate is not chargeable with these attorney’s fees. Accordingly, we affirm the judgment of the trial court.

The plaintiff, Gordon C. Andrews, the executor of the estate of John Stark Gorby, appealed to the Superior Court to challenge the validity of a decree of the Fair-field Probate Court that disallowed charges against the Gorby estate for $25,000 in legal fees and $3423.31 in associated costs. These fees represented amounts that attorney William A. Phillips had charged the plaintiff to represent him in his effort to obtain an executor’s fee larger than that which he had been awarded by the Probate Court. The defendant, John Thomas Gorby, the only son of the decedent and the primary beneficiary of the estate, objected to having additional fees charged to the estate. The trial court concluded that the plaintiff was not entitled to recover the fees and costs associated with Phillips’ services.

The plaintiff appeals from the judgment of the trial court on two grounds. As a procedural matter, he claims that the court, Hon. Joseph T. Gormley, Jr., judge trial referee, lacked jurisdiction to hear this case because the court, Melville, J., improperly declined to re-refer it for a rehearing before an attorney trial referee. As a substantive matter, he claims that the court improperly rejected his claim that the Gorby estate should be charged with the fees and costs arising out of the legal services provided by Phillips. Neither claim raises any question of disputed fact. Accordingly, our review of the plaintiffs claims is plenary. Rosato v. Rosato, 77 Conn. App. 9, 17, 822 A.2d 974 (2003).

I

The plaintiffs procedural claim arises out of proceedings predating the trial before the court, Hon. Joseph T. Gormley, Jr., judge trial referee. In the plaintiffs view, the proper forum for hearing the dispute about financial responsibility for his attorney’s fees was a proceeding before an attorney trial referee. We disagree.

At an earlier stage in this litigation, this case had indeed been referred to an attorney trial referee, Daniel Shepro. This referral was vacated because the attorney trial referee did not file his report in favor of the plaintiff within the 120 day period required by Practice Book § 19-4. The plaintiff then moved for re-referral of the case to the attorney trial referee. The trial court, Melville, J., denied the plaintiffs motion.

The plaintiff asks us to review the merits of Judge Melville’s decision. We need not address this issue because the plaintiff has waived it. Judge Gormley’s memorandum of decision begins with the statement that “the parties stipulated that this court could determine the issues raised based on the testimony and exhibits before [the attorney trial referee] and the briefs and reply briefs filed at that time by the parties. The parties did reserve the right to file supplemental briefs updating the law.” The plaintiff does not dispute the accuracy of the court’s statement. Accordingly, the trial court, sitting as a Probate Court, was the proper forum in which to litigate the merits of the parties’ dispute about attorney’s fees.

II

The plaintiffs substantive claim concerns his alleged right, as executor of the Gorby estate, to charge the estate for the attorney’s fees that he paid Phillips. It is important to state the plaintiffs claim precisely. This case does not concern the duty of an estate to pay for the administrative services rendered by an executor. It does not concern the duty of an estate to reimburse the executor for administrative expenses, including attorney’s fees, that directly benefit the estate. It does concern the alleged duty of an estate, in the event of a fee controversy, to pay not only the executor’s fee but also the fee charged by the attorney representing the executor in the fee dispute. This is an issue of first impression in this state.

The trial court concluded that the estate had no duty to pay an executor’s legal fees under the circumstances of this case. It did not decide whether, in fact, the fees charged by Phillips were reasonable in amount. It decided only that Phillips’ fees were not chargeable to the estate.

A

To provide the context for the plaintiffs claim, we briefly review the history of the fee dispute for which he sought professional assistance from Phillips. The relevant facts are set out in Andrews v. Gorby, 237 Conn. 12, 13-14, 675 A.2d 449 (1996), and in Judge Gormley’s memorandum of decision.

In a will executed on February 3, 1987, and in subsequent codicils, John Stark Gorby named the plaintiff the executor of his will and the trustee of two trusts that he had created. Id., 18. The plaintiff was not an estates lawyer. He assumed these fiduciary responsibilities reluctantly, at the request of the decedent, because of a close friendship of fourteen years’ standing. Id. One of the codicils to Gorby’s will provided that the plaintiffs fee as executor would be assessed in accordance with a named bank’s schedule. Id., 18-19. The plaintiff never discussed the amount of his executor’s fees with the decedent. Id., 19-20. The estate consisted of a gross estate valued at $748,656 and assets reported for tax purposes of $614,621. Id., 19.

In 1989, after the death of the decedent and the plaintiffs appointment as executor for the Gorby estate, the plaintiff first utilized his own services as attorney for the estate. In 1992, the plaintiff submitted an accounting to the Probate Court in Fairfield in which he sought an executor’s fee of $28,064 and a separate attorney’s fee of $28,064. He included a claim for attorney’s fees on Phillips’ advice that such a claim was appropriate under Connecticut practice.

After the defendant objected to the plaintiffs proposed fees, the plaintiff revised his fee request upward. Upon the advice of Phillips, whom he had engaged as counsel, he calculated his fees according to the bank schedule that was incorporated in the codicil to Gorby’s will. As a result, on May 1, 1993, he asked for the approval of an executor’s fee of $45,898 and his own attorney’s fee of $28,064. He also listed $5000 as an estimate of “Attorneys Fees — William A. Phillips (estimate).” The Probate Court, Shannon, J., awarded the plaintiff only $28,000 as an executor’s fee and disallowed any claim for an attorney’s fee for the plaintiffs own services “because of his dual capacity.”

The plaintiff appealed from that award, first to the Superior Court and then to the Supreme Court. Our Supreme Court set the award of the trial court aside for procedural reasons. Id., 16-17. The court also held that the plaintiff could not measure his executor’s fees by the bank schedule because the plaintiff had not discussed that schedule with the testator. Id., 22.

On remand, the Superior Court, Belinkie, J., set the plaintiff’s fee at $25,000 for his services as executor. The court found that the Gorby estate was “a simple estate involving routine documents and no extraordinary circumstances, difficult issues or problems, and, that the handling of this estate involved, no more than average knowledge, skill or judgment. In addition, the plaintiff was able to handle this estate while being employed full time as counsel for a New Jersey corporation.” Andrews v. Gorby, Superior Court, judicial district of Fairfield, Docket No. 306238 (February 11, 1998). Significantly, this judgment awarded the plaintiff a fee that was $3000 less than that which he had been awarded by the court, Shannon, J., five years earlier.

B

Upon the conclusion of the fee dispute, the plaintiff returned to the Probate Court to request an additional charge against the Gorby estate of $25,000 for legal fees and $3423.31 for costs associated with said fees. These were the legal fees that Phillips had charged for his services with respect to the fee dispute. The Probate Court, Caruso, J., denied the plaintiffs request in its entirety. After a de novo hearing, Judge Gormley likewise concluded that the estate was not chargeable for Phillips’ fees. The court’s judgment in favor of the defendant gave rise to this appeal.

The plaintiff claims that the trial court improperly ruled that Phillips’ fees were not a legitimate charge against the estate. Although he does not challenge the trial court’s underlying findings of fact, he maintains that he has a legal claim for recovery because, in his view, he acted in good faith in obtaining legal advice that was beneficial for the estate.

We agree with the defendant that the judgment of the trial court must be affirmed. As a matter of fact, the court did not agree with the plaintiffs representations about the nature of his own conduct or its impact on the estate. As a matter of law, the trial court properly rejected the plaintiffs argument that this case is governed, or should be governed, by the law of the state of California as stated in In re Estate of Trynin, 49 Cal. 3d 868, 873-74, 782 P.2d 232, 264 Cal. Rptr. 93 (1989).

1

The trial court’s memorandum of decision unequivocally refutes the factual assertions on which the plaintiff relies. The court carefully addressed both his claim that the fee dispute was pursued for the benefit of the estate and his claim that he had pursued this dispute in good faith.

The court expressly found that Phillip’s services did not benefit the estate. “All during the initial proceeding before Judge Shannon in the Probate Court on the disallowance of fees, the trial before Judge Levin, the appeals to the Appellate and the Supreme Court and the retrial before Judge Belinkie, the plaintiff was represented by attorney William Phillips. Those services were performed solely to increase the plaintiffs executor fees and to procure attorney fees for him.”

The court implicitly found that the plaintiff had not established his own good faith. It noted the plaintiffs failure to discuss with the testator his intent to recover a fee both as executor and as attorney or to measure his fee according to the bank schedule incorporated in the codicil to the will. It observed that the plaintiff had responded to the defendant’s objection to the plaintiffs initial fee request by raising the amount that he sought from the estate. It was troubled by the fact that, in calculating that higher amount, the plaintiff had availed himself of the bank schedule even though he had earlier acknowledged that use of this schedule would be inequitable in light of the plaintiffs future right to recover trustee’s fees.

Without disputing these adverse fact findings directly, the plaintiff argues that we should set them aside in light of a contrary characterization of his conduct by the attorney trial referee. The referee found that there was “insufficient evidence to show that the claim for fees was not made from an honest conviction that fees were due him under the will.”

This case, however, does not come to us as an appeal from the report of the attorney trial referee and is not governed by the rules governing such an appeal. Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 345, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002), on which the plaintiff relies, is therefore inapplicable. Because the attorney trial referee report had been vacated, the trial court properly undertook an independent plenary analysis of the merits of the controversy between the parties.

We recognize that the court did not hold an evidentiary hearing in this case but arrived at its judgment by examining “the testimony and exhibits before [the attorney trial referee] and the briefs and reply briefs filed at that time.” An attorney trial referee’s findings, however, do not fall within the rubric of “testimony and exhibits.” It is irrelevant, therefore, that the attorney trial referee found that the plaintiffs fee requests had been filed honestly and in good faith. The trial court had the plenary authority to make whatever findings were appropriate on the record before the court;.

2

On the facts found by the trial court, the plaintiff faces an uphill battle in his claim of law for charging the estate for the costs of the legal services provided by Phillips. He nonetheless urges us to rule that, as a matter of law, he is entitled to recover Phillips’ fees from the estate, principally because Connecticut should follow the rule adopted in In re Estate of Trynin, supra, 49 Cal. 3d 868.

The parties agree that there is no Connecticut law that specifically addresses an executor’s right to charge an estate with legal fees incurred by the executor in the course of disputing his own executor’s fees. No cases are directly on point and no statute defines an executor’s entitlement to legal fees. That does not mean, however, that, in crafting an appropriate rule of law for this issue of first impression, we are writing on a clean slate.

The question of whether an executor may charge an estate for attorney’s fees that he has incurred can be restated as a question of determining the compensation to which an executor is entitled. The executor’s net compensation clearly will depend on whether he or the estate bears the cost of the attorney’s fees.

Connecticut law, long ago, defined the factors that a court must consider in determining the compensation to which an executor is entitled. In Hayward, v. Plant, 98 Conn. 374, 119 A. 341 (1923), our Supreme Court held that “reasonable” compensation for an executor means “what is fair in view of the size of the estate, the responsibilities involved, the character of the work required, the special problems and difficulties met in doing the work, the results achieved, the knowledge, skill and judgment required of and used by the executors, the manner and promptitude in which the estate has been settled and the time and service required, and any other circumstances which may appear in the case and are relevant and material to this determination.” Id., 385.

In this case, the plaintiff never sought to justify his pursuit of enhanced executor’s fees by claiming that he had undertaken any special responsibilities or performed extraordinary services for the estate. To the contrary, the trial court, Belinkie, J., found that administration of the Gorby estate was routine and presented no extraordinary circumstances, difficult issues or problems. Andrews v. Gorby, supra, Superior Court, Docket No. 930306238. In the present proceedings, the trial court found that the services performed by attorney Phillips did not benefit the estate in any respect. Accordingly, Hayward supports the trial court’s denial of the plaintiffs attorney’s fees.

The plaintiffs request for coverage of his attorney’s fees also implicates a second settled principle of Connecticut law. That principle is the American rule of attorney’s fees, which requires each party to a litigation to pay its own attorneys’ fees unless some specific statutory or contractual exception provides to the contrary. Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72-73, 689 A.2d 1097 (1997); TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 516, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002). As our Supreme Court has stated: “[WJhen the General Assembly wanted to authorize the award of attorney’s fees it knew how to do it.” Chrysler Corp. v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989). In this case, the General Assembly has not acted.

The American rule denies the recovery of attorney’s fees to a litigant who prevails in the underlying litigation. It would be anomalous, to say the least, not to apply the same rule to someone in the position of the plaintiff, who did not prevail in his efforts to obtain a greater executor’s fee.

Finally, the American rule presumptively applies in this case even though the plaintiff seeks to recover attorney’s fees not from the defendant but from the estate. The estate’s responsibility to cover the cost of services rendered on behalf of the estate does not imply a duty to cover costs for attorney’s fees. In an analogous context, our Supreme Court has considered whether a contractual obligation to cover the costs of a potential claim implies an obligation to cover attorney’s fees incurred in enforcing the contractual obligation. In Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983), the court held that it did not. It adopted the rule that, “in the absence of express contractual terms to the contrary, allowance of fees is limited to the defense of the claim which was indemnified and does not extend to services rendered in establishing the right to indemnification. . . . Courts have relied on encompassing language in the indemnity contract, usually specifically referring to attorney’s fees, to find an express agreement to the contrary.” (Citations omitted.) Id., 363-64.

The American rule on attorney’s fees presents a serious obstacle to the plaintiff’s recovery in this case. Because the parties have not briefed the significance of the rule, we would be reluctant to base our judgment on that ground alone. For present purposes, however, we cite the rule as an additional reason for affirming the judgment of the trial court.

3

Our survey of relevant Connecticut law persuades us, therefore, that the trial court properly declined to award the plaintiff the attorney’s fees that he sought. The out-of-state authorities on which the plaintiff relies do not warrant a different result.

One out-of-state authority cited by the plaintiff is § 3-720 of the Uniform Probate Code, a statute that, concededly, our legislature has not adopted. The plaintiff nonetheless urges us to adopt the rule stated in that section as a common law policy. Section 3-720 provides that “[i]f any personal representative . . . defends or prosecutes any proceeding in good faith, whether successful or not he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys’ fees incurred.”

Section 3-720 does not, however, support the plaintiffs case. Even if the policy it articulates were persuasive as a general matter, its applicability is not unlimited. Relief under the statute depends on a finding that the personal representative “prosecutes any proceeding in good faith.” The trial court declined to so characterize the plaintiffs pursuit of his fee dispute. Under the Uniform Probate Code, the existence of good faith supporting a request for attorney’s fees is a question of fact for the trial court. See also In re Estate of Herbert, 91 Haw. 107, 109, 979 P.2d 1133 (1999); Fields v. Mersack, 83 Md. App. 649, 659-60,577A.2d 376 (1990).

The other out-of-state authority that the plaintiff cites is In re Estate of Trynin, supra, 49 Cal. 3d 868, in which the California Supreme Court authorized an award of fees to executors that included compensation for fees charged by the executors’ attorney. That court concluded that an applicable California statute justified such an award because the executors, with the assistance of their attorney, had performed extraordinary services for the estate in settling a substantial claim against the estate for $125,000 rather than paying out $738,000, the original amount of the complaint. Id., 871-72.

The court’s reasoning in In re Estate of Trynin is illuminating. The court observed that “a contrary rule would ultimately be deleterious to decedents’ estates and heirs because attorneys would be reluctant to perform services necessary to the proper administration of decedents’ estates if the compensation awarded for their services could be effectively diluted or dissipated by the expense of defending against unjustified objections to their fee claims.” (Emphasis added.) Id., 871. The court also held, however, that an additional award for fee related services was not invariably required. “Where the trial court reasonably concludes that the amounts previously awarded the attorney for both ordinary and extraordinaiy services are adequate, given the value of the estate and the nature of its assets, to fully compensate the attorney for all services, including fee-related services, denial of a request for fee-related fees would not be an abuse of discretion.” Id., 880.

As the trial court in this case noted, because extraordinary fees were approved in In re Estate of Trynin, “it was easy [for the California court] to find the objection to be unjustified.” That is not this case. Even if we were to adopt the rationale of In re Estate of Trynin, this plaintiff could not recover unless the court found the defendant’s objection to the plaintiffs fee requests to have been unjustified. In fact, it found the opposite.

The plaintiffs reliance on In re Estate of Trynin is, therefore, misplaced for three reasons. In his case, no statute displaces the American rule on attorney’s fees, no extraordinary services warrant enhancement of his executor’s fees and no one proffered an unreasonable objection to his fee request.

Even in the absence of these distinguishing factors, we would be disinclined to import the law of California into the law of Connecticut. As far as we can tell, In re Estate of Trynin has not been followed in any other state, even in states that, like California, have statutes that authorize an executor to recover attorney’s fees under some circumstances. Taking into account the principles that underlie executor compensation and the American rule on attorney’s fees, we are persuaded that the proper rule is that stated by the Indiana Court of Appeals in In re Estate of Inlow, 735 N.E.2d 240 (Ind. App. 2000).

Like the California court, the Indiana court, in In re Estate of Inlow, recognized the risk that an executor’s right to appropriate fees for estate services might be unfairly constricted if the executor were invariably required to absorb the cost of professional advice to obtain the fees to which he was entitled. Id., 254. Diminution in the net amount of a litigant’s recovery is, of course, an inevitable consequence of the American rule for attorney’s fees. Nonetheless, the court held that, “[ijnthe case of a meritorious challenge to afee petition, defending its reasonableness cannot seriously be considered a service ‘for the estate,’ especially if the challenge results in a reduction of the proposed fee.” Id.

The Indiana court further held, however, that recovery of attorney’s fees would be appropriate in the unusual case of an executor forced to defend his fee petition “against baseless challenges brought by contentious heirs or legatees.” Id. To justify such a recovery, an executor would have to show that his fee petition had been contested for reasons that were “frivolous, unreasonable, or groundless” or that the fee dispute had been “litigated ... in bad faith.” Id.

We are persuaded that In re Estate of Inlow strikes the proper balance between an executor’s right to compensation and the estate’s right to protection of its assets. See also In re Estate of Painter, 628 P.2d 124, 126 (Colo. App. 1980); In re Sloan Estate, 212 Mich. App. 357, 363, 538 N.W.2d 47 (1995); In re Estate of Larson, 103 Wash. 2d 517, 532-33, 694 P.2d 1051 (1985) (en banc).

Under In re Estate of Inlow, the plaintiff in this case cannot prevail. Judge Gormley expressly found that the defendant was justified in challenging the plaintiffs fee request. It follows that the defendant’s action was not “frivolous, unreasonable, or groundless.”

4

In sum, we conclude that Judge Gormley properly analyzed the plaintiffs claim to recover attorney’s fees and properly decided that his claim was not supported either by Connecticut law or by the law of other American states. The plaintiffs claim founders on the fact that the plaintiff did not establish that he had pursued the underlying fee litigation in good faith for the benefit of the estate. Furthermore, the plaintiff does not purport to have established that the defendant challenged the amount of his executor’s fee for reasons that were frivolous, unreasonable, or groundless.

The judgment is affirmed.

In this opinion the other judges concurred.

       In a companion case involving the same parties, the trial court removed the plaintiff as fiduciary for two trusts created by the decedent. We affirmed those judgments in In re Andrews’ Appeal From, Probate, 78 Conn. App. 429, 826 A.2d 1260 (2003) (AC 23446).

       Practice Book § 19-4 provides: “An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court, with sufficient copies for all counsel, within one hundred and twenty days of the completion of the trial before such referee.”

       The court held that the Superior Court had employed an improper standard of review. Instead of deferring to the decision of the Probate Court, the Superior Court should have engaged in a de novo review of the executor’s fee awarded by the court, Shannon, J.

       The court also noted that the fee litigation had imposed a considerable expense on the defendant, who had personally paid the fees charged by his attorney.

       In the absence of a finding of good faith, the plaintiffs reliance on Hewitt v. Beattie, 106 Conn. 602, 138 A. 795 (1927), is misplaced.

       The plaintiff does not assert that the testator in this case ever agreed, expressly or impliedly, that his estate would bear responsibility for the plaintiffs attorney’s fees.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    BARBARA L. HIBNER ET AL. v. HELEN J. BRUENING ET AL.
    (AC 22808)
    Lavery, C. J., and Flynn and Peters, Js.
    Argued May 8
    officially released August 5, 2003

      William B. Bilcheck, Jr., for the appellants (plaintiffs).

      Edward P. Brady III, for the appellees (defendants).
   Opinion

FLYNN, J.

The plaintiffs, Barbara L. Hibner, Samuel Hibner and Stephen Ayer, appeal from the judgment of the trial court dismissing their action against the defendants, Helen J. Bruening and Donald J. Bruening. This case arose out of an automobile negligence action brought by the plaintiffs. The court granted the defendants’ motion to dismiss on the basis of ineffective service of process because the judicial marshal, Joseph D. Nardini, executed constructive service rather than in hand or abode service at their address at 24 Rustic Lane in Madison. On appeal, the plaintiffs claim that the court improperly granted the defendants’ motion to dismiss due to lack of personal jurisdiction. We reverse the judgment of the court because we conclude that Nardini’s return and affidavit adequately showed that it was “impossible” to make personal or abode service of process at the operator’s last address on file with the department of motor vehicles and that General Statutes § 52-63 (b) thus permitted service on the commissioner of motor vehicles (commissioner).

The parties are not in dispute about the pertinent facts and agree that the principal issue to be decided is whether § 52-63 (b), which permits constructive service on the commissioner, requires that it be absolutely “impossible” for the marshal to serve the process at the address listed on file with the commissioner. The plaintiffs argue that substitute service on the commissioner may be made when personal or abode service has been attempted several times, unsuccessfully, and continued attempts are not practical.

Proper service of process is not some mere technicality. “Proper service of process gives a court power to render a judgment which will satisfy ‘due process’ under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the ‘full faith and credit’ clause of the federal constitution.” 1 R. Bollier, N. Cioffi, K Emmett, J. Kavanewsky & L. Murphy, Stephenson’s Connecticut Civil Procedure (3d Ed. 1997) § 11 (b), p. 20. All process must be served at least twelve days before the return date, including the day of service and excluding the return day. General Statutes § 52-46. Marshals and constables are directed to make a return in writing on the process they serve. General Statutes §§ 6-32 (marshals); 7-89 (constables). The return includes “a short account in writing, of the manner in which [the marshal] executed it.” (Internal quotation marks omitted.) 1 R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky & L. Murphy, supra, § 17 (a), p. 34.

The standard of our review on this issue of statutory construction is plenary. State v. William B., 76 Conn. App. 730, 754, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003). Statutory interpretation is a question of law. Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 728, 778 A.2d 899 (2001). “When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) Id. “[I]n the absence of guidance from the language of the statute or the legislative history, we look to common law principles .... It is assumed that all legislation is inteipreted in light of the common law at the time of enactment.” (Internal quotation marks omitted.) State v. Miranda, 245 Conn. 209, 220 n.13, 715 A.2d 680 (1998), on appeal after remand, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).

“We construe each sentence, clause or phrase to have a purpose behind it. . . . In addition, we presume that the legislature intends sensible results from the statutes it enacts. . . . Therefore, we read each statute in a manner that will not thwart its intended puipose or lead to absurd results.” (Citations omitted; internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 728-29. “Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended. ... No word or phrase in a statute is to be rendered mere surplusage. ... In applying those principles, we keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Citation omitted; internal quotation marks omitted.) Gelinas v. West Hartford, 65 Conn. App. 265, 276, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). In construing a statute that is remedial, we do so liberally “in favor of those whom the legislature intended to benefit.” Coppola, v. Coppola, 243 Conn. 657, 664, 707 A.2d 281 (1998).

This case involves the interplay of two distinct statutes. The first of these is General Statutes § 52-57 (a), which provides: “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” The clear impact of § 52-57 (a) is that one of its two alternatives, personal or abode service, must be followed “[e]xcept as otherwise provided” in the General Statutes. See General Statutes § 52-57 (a). The second of these two statutes, § 52-63 (b), provides: “Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the [commissioner of [m]otor [v]ehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the [department of [m]otor [v]ehicles if (1) it is impossible to make service of process at the operator’s last address on file in the [djepartment of [mjotor [vjehicles, and (2) the operator has caused injury to the person or property of another.” (Emphasis added.)

“[Ijn the absence of . . . statutory . . . guidance, [the court] may appropriately look to the meaning of the [word] as commonly expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998). The American Heritage Dictionary defines “impossible” as “[n]ot capable of existing or happening. ” It also, however, gives us a second meaning, “ [h] aving little likelihood of happening or being accomplished.” Id. It is the second meaning that we conclude the legislature intended when it adopted § 52-63 (b).

In construing the statute, we conclude that we must look at what the term was intended to accomplish. The purpose of this statute clearly is to bring about a practical result, to ensure actual notice to the defendants that an action has been commenced. See Cato v. Cato, 226 Conn. 1, 18, 626 A.2d 734 (1993).

Furthermore, our Supreme Court has expressed a policy “to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 665. Interpretations must be liberal when strict adherence will bring injustice; see id.; and when a statute is subject to two possible interpretations, the court will adopt that which makes the statute effective and workable rather than that “which leads to absurd consequences and bizarre results.” State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985).

When notice is given to a defendant of the commencement of a legal action, there must also be substantial compliance with the service of process statutes. Cato v. Cato, supra, 226 Conn. 18. We conclude that by construing the term “impossible” to include situations where personal or abode service has little likelihood of happening or being accomplished, the statute becomes effective and workable.

Having concluded that the word “impossible” in § 52-63 (b) also encompasses an impractical situation, we now must determine whether there was little likelihood of effective personal or abode service at the defendants’ usual place of abode. In the present case, we conclude that the undisputed facts of this situation fell within the statutory definition of “impossible.”

The following additional facts taken from Nardini’s affidavit are pertinent to our inquiry. Nardini swore in his affidavit that he attempted on several occasions to serve the defendants personally at the 24 Rustic Lane address, but no one answered the door or was present to accept service. Nardini also averred that he unsuccessfully attempted to learn through the United States Post Office whether the defendants still lived at the Rustic Lane address. Finally, on October 12, 2001, two days before the statute of limitations would have expired, Nardini served the papers on the commissioner of motor vehicles and mailed a certified copy of the writ, summons and complaint to the defendants’ last known address as is provided in § 52-63 (b).

A proper officer serving process must comply with the provisions of § 52-57 (a), which require that process be served by leaving it “with the defendant, or at his usual place of abode . . . .’’If Nardini simply left the papers at a place where the defendants did not live, service would not have been effective and jurisdiction would not have vested in the court. See Bove v. Bove, 77 Conn. App. 355, 363, 823 A.2d 383 (2003). Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed. Collins v. Scholz, 34 Conn. Sup. 501, 506, 373 A.2d 200 (1976).

In dismissing the plaintiffs’ case, the court held that “[n]either the return nor the affidavit of marshal Nardini supports a conclusion that it was ‘impossible to make service of process at the owner’s last address on file . . . .’ General Statutes § 52-63 (c) (1).” The court therefore determined that it lacked personal jurisdiction.

The trial court cited Moses v. Kunst, Superior Court, judicial district of New Haven, Docket No. 452348 (October 1, 2001) (30 Conn. L. Rptr. 458), as authority for its decision. In Moses, the plaintiff never filed an opposition to the motion to dismiss, and no affidavit was produced indicating that the marshal had made several attempts at personal service and could not establish to his satisfaction that the dwelling was the defendant’s usual place of abode; id., 458-59; such as was made by Nardini in the present case. Because we construe §§ 52-57 (a) and 52-63 (b) to permit constructive service on the commissioner where reasonable efforts to make personal or abode service have failed, we reject the Moses holding insofar as it limits use of the provisions of § 52-63 (b) to situations where “(1) the officer [is] unable to obtain sufficient access into the structure to make proper service, (2) the defendant no longer reside [s] at the address or [makes it his] abode, or (3) no such address existfs].” (Internal quotation marks omitted.) Id., 458.

Pursuant to Practice Book § 10-31, the motion to dismiss was supported by affidavits submitted by the defendants. In opposition to the defendants’ motion to dismiss, the plaintiffs submitted the return and an affidavit from Nardini. The marshal’s return indicated that pursuant to § 52-63 (b), he served both defendants by leaving “a true and attested copy of the original writ, summons and complaint along with an affidavit of diligent search, with my doings thereon endorsed ... at the office of the Motor Vehicle Commissioner.” He also reported in his return that he had mailed each defendant a copy of the writ, summons and complaint. Both defendants attested that they had lived at 24 Rustic Lane in Madison for over twenty years, were in residence in October, 2001, and never were served in hand with a copy of the complaint nor was the summons and complaint left at their Rustic Lane home.

Nardini could have remained at the defendants’ home to verify if the address was in fact the defendants’ dwelling. The service of process entrusted to him never would have occurred if the defendants were not there to accept service personally or if verification of their abode was not accomplished. His remaining at the defendants’ home under such a scenario could have no practical effect. He also could have continued other attempts to verify whether it was the defendants’ usual place of abode. Such an exhaustive procedure might well have proved that the service authorized was physically or absolutely impossible, but Nardini still would be left in the position where the process had not been served. While impossibility would have been established in such a scenario, the writ of summons and complaint never would have been served properly. Nardini’s use of § 52-63 (b) allowed the defendants to obtain service in a timely manner consistent with our statutes, thereby attaining the goal of effective service that the statute intended.

When effecting abode service, a marshal or constable cannot guess that a particular dwelling is a defendant’s usual place of abode because there must be an attestation of that fact in his return. The fact that the Rustic Lane address was the last address on file with the commissioner, in and of itself, could not establish that it was the defendants’ usual place of abode. Despite attempts to confirm that address as the defendants’ usual place of abode, Nardini was unsuccessful.

We conclude that Nardini’s return and affidavit established that there was little likelihood that he would have been able to accomplish either personal service or abode service within the time he had to accomplish service, having made several fruitless prior attempts. We therefore conclude that this was the kind of situation that the legislature envisioned when it enacted provisions allowing for service on the commissioner when service by usual methods is impossible.

We therefore conclude that “impossibility,” as used in § 52-63 (b), does not require that absolute physical impossibility exists but includes factual situations akin to the one presented by the present case where several unsuccessful attempts to serve or to verify the defendants’ usual abode revealed that there was little likelihood of successful in hand or abode service.

The judgment is reversed and the case is remanded for further proceedings in accordance with the law.

In this opinion the other judges concurred.

       The complaint alleged that Donald J. Bruening was the owner of the vehicle and that Helen J. Bruening was the operator.

       The legal analysis of this decision is being applied to both General Statutes § 52-63 (b) and (c). Section 52-63 (b) applies to the service of process on Helen J. Bruening, the operator of the motor vehicle. Section 52-63 (c) applies to the service of process on Donald J. Bruening, the owner of the motor vehicle.
      General Statutes § 52-63 (c) provides: “Service of civil process may be made on the owner of a motor vehicle registered under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the [cjommissioner of [mjotor [vjehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the [djepartment of [mjotor [vjehicles if (1) it is impossible to make service of process at the owner’s last address on file inthe [djepartment of [mjotor [vjehicles, (2) the owner has loaned or permitted his motor vehicle to be driven by another, and (3) the motor vehicle has caused injury to the person or property of another.” (Emphasis added.)

       Although we do not rest our decision on the proximity of the statute of limitations and the need to make service twelve days before the return date, we do note that the plaintiffs’ complaint indicates that the defendants’ negligence occurred on September 30, 1999. Under General Statutes § 52-584, the plaintiffs’ claims against the defendants had a two year statute of limitations, which would have expired on September 30, 2001. Nardini’s return indicates that he received the writ of summons and complaint from the plaintiffs’ attorney on September 29, 2001, one day before the statute of limitations was to expire. The writ of summons and complaint were given a return date of October 30, 2001. Under § 52-63, a marshal must complete service of process twelve days before the return date. Due to the fact that the process was delivered to the marshal before the statute of limitations expired, the plaintiffs’ complaint fell within General Statutes § 52-593a. That statute allows a right of action to continue after the statute of limitations has expired if the marshal (1) receives the writ of summons and complaint before the statute of limitations has expired and (2) service of process occurs within fifteen days of the marshal receiving the papers. Accordingly, Nardini had until October 14, 2001, to achieve service of process or the statute of limitations would have expired. Service was made on the commissioner on October 12, 2001.


author: WEST, J.

text:
    CLIFFORD G. WOODRUFF v. PATRICK G. RILEY ET AL.
    (AC 23320)
    Foti, Schaller and West, Js.
    Argued June 4
    officially released August 5, 2003

      Brian McCormick, for the appellant (defendant Roberta Smith Riley).

      J. Michael Sconyers, with whom was Melissa M. Muller, for the appellee (plaintiff).
   Opinion

WEST, J.

This appeal requires us to determine whether the trial court, after finding that the defendant Roberta Smith Riley had received notice via certified mail of the pending action, properly denied her motion to open the default judgment. We affirm the judgment of the trial court.

The facts underlying this action reflect an unfortunate situation in which adjoining landowners are not able to relate to one another in a neighborly fashion. As a consequence of the animosity between the parties, the plaintiff, Clifford G. Woodruff, commenced an action against the defendant and her now estranged husband, seeking to enjoin them from trespassing on his property and from obstructing his claimed right to cross their property. The defendant and her husband were served process, pursuant to a first order of notice, via certified mail at their primary residence in San Francisco, California, and by abode service at 35 East Shore Road in New Preston. The return date of the action was August 28, 2001. The court ordered the defendant and her husband to appear and to show cause why the plaintiffs application for a temporary injunction should not be granted.

The court held a hearing on the application for a temporary injunction on September 10, 2001. Neither the defendant nor her husband filed a written appearance, and they did not appear at the hearing. When ruling on the plaintiffs request for a temporary injunction, the court found that the defendant had actual notice of the action and the show cause hearing, as she had signed the receipt for the certified mail. The court denied the plaintiffs application for a temporary injunction, concluding that the plaintiff was not in imminent danger of sustaining a substantial and irreparable injury.

The plaintiff subsequently filed a motion for default for failure to appear against the defendant and her husband. The clerk granted the motion for default on September 24, 2001. The clerk advised the defendant and her husband by written notice of the default. Thereafter, on October 11, 2001, the plaintiff filed a motion for judgment. The court granted the motion for judgment, including costs, as to both counts of the verified complaint on November 20,2001. By notice dated December 12, 2001, the plaintiff informed the defendant and her husband of the judgment by default of appearance. The notice of the default judgment was sent to the defendant and her husband at both the San Francisco and 35 East Shore Road, New Preston, addresses. On May 23, 2002, the defendant filed a motion to open the judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43. On July 17, 2002, the court denied the defendant’s motion to open. The defendant then appealed to this court.

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990).

The following additional facts are necessary for our resolution of the defendant’s appeal. On July 1, 2002, the court held a hearing on the defendant’s motion to open the judgment. In her motion to open, which was accompanied by her affidavit, the defendant argued that the judgment should be set aside pursuant to General Statutes § 52-212 and Practice Book § 17-43. She claimed that she was prevented by mistake, accident or other reasonable cause from making a defense and that she had a good defense to the action. Specifically, the defendant argued that she had signed the postal receipt of the certified mail, did not open the envelope but gave it to her estranged husband. The date that the defendant signed for the certified mail was the date that she separated from her husband. The defendant also argued in her motion to open that she did not receive actual or constructive notice of the judgment rendered on November 20, 2001, until May 10, 2002.

Following the hearing, the court found that the defendant had received notice of the writ of summons and complaint by signing the return receipt of the postal service in San Francisco, in late July, 2001. Although the court specifically did not find that the defendant was negligent in failing to appear in this case, that finding is implicit in the court’s memorandum of decision, as the court cited State v. Ritz Realty Corp., 63 Conn. App. 544, 548-49, 776 A.2d 1195 (2001), for the proposition that the negligence of a party is not a reason sufficient to open a default judgment. The court also found that the plaintiff had sent the defendant notice of the default judgment in December, 2001, and that the defendant had failed to file her motion to open within the four month period required by § 52-212. Because we agree with the court that negligence is not a sufficient reason to open a judgment of default, we need not reach the defendant’s second claim that the plaintiff failed to send her timely notice of the judgment.

“Our standard of review is well settled. Whether a court has authority to grant a motion to open requires an interpretation of the relevant statutes. Statutory construction, in turn, presents a question of law over which our review is plenary.” Opoku v. Grant, 63 Conn. App. 686, 690, 778 A.2d 981 (2001). The applicable statute is § 52-212 (a), which provides in relevant part: “Any judgment rendered or decree passed upon a default ... in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon . . . written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good . . . defense in whole or in part existed at the time of the rendition of the judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from . . . making the defense.” General Statutes § 52-212 (a).

Practice Book § 17-43 (a) “is almost identical to the statutory language [of § 52-212]. To obtain relief from a judgment rendered after default a two pronged test must be satisfied. The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense.” (Internal quotation marks omitted.) Opoku v. Grant, supra, 63 Conn. App. 691; see also Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985); Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984). Here, the defendant asserted that she had a good defense. The court made no finding in that regard. Assuming for the purposes of argument, however, that the defendant had a good defense to the plaintiffs cause of action, we conclude nonetheless that she failed to satisfy the second prong of the test.

“A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority. Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 194, 187 A.2d 243 (1962). Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., [supra, 196 Conn. 240-41], Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment. Segretario v. Steward-Warner Corp., 9 Conn. App. 355, 363, 519 A.2d 76 (1986); see also Jaquith v. Revson, 159 Conn. 427, 270 A.2d 559 (1970).” (Internal quotation marks omitted.) State v. Ritz Realty Corp., supra, 63 Conn. App. 548-49.

On the basis of our review of the transcript of the hearing, we conclude that the court did not abuse its discretion in denying the defendant’s motion to open the judgment. The defendant acknowledged her handwriting on the postal service receipt and testified that she had given the notice unopened to her husband from whom she was separating. Although the notice arrived at a difficult time in the defendant’s life, that situation was not sufficient to overcome the defendant’s negligence in failing to appear and to defend against the plaintiffs cause of action. See Jaquith v. Revson, supra, 159 Conn. 432 (“history of illness and cause for seclusion” not sufficient to overcome defendant’s negligence).

Because the court found that the defendant had failed to appear and to defend against the action due to negligence, which was sufficient reason to deny the motion to open the judgment, we need not reach the defendant’s claim with respect to the timeliness of the plaintiffs notice of judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Patrick G. Riley, is not a party to this appeal. At the time the plaintiff, Clifford G. Woodruff, commenced the action, the defendantsjointly owned the premises at 35 East Shore Road in New Preston. The defendants subsequently have separated, and Patrick G. Riley quit-claimed his interest in 35 East Shore Road to Roberta Smith Riley. Reference to the defendant in this opinion is to Roberta Smith Riley.

       On appeal, the defendant raises the following claims: The trial court improperly (1) applied General Statutes § 52-212 (a) by ruling that the defendant had not filed her motion to open the judgment in a timely manner when it is clear that the plaintiff did not comply with the notice provisions of Practice Book § 17-22, which triggers the commencement of the four month period within which the defendant could seek to open the judgment of default rendered against her, and (2) applied General Statutes § 52-212 (a) and Practice Book § 17-22 to the circumstances of this case.

       Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”


author: HENNESSY, J.

text:
    CHARLES ESPOSITO v. WALDBAUM’S, INC.
    (AC 22857)
    Foti, Bishop and Hennessy, Js.

      Argued April 28
    officially released August 5, 2003

      Kevin J. Maher, with whom, on the brief, was James D. Moran, Jr., for the appellant (defendant).

      Steven D. Jacobs, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant Waldbaum’s, Inc., appeals from the decision of the workers’ compensation review board (board) affirming the decision of the trial commissioner (commissioner) that General Statutes § 31-307 (e) does not apply to the plaintiff, Charles Esposito, because his injury preceded the enactment of that statutory subsection. On appeal, the defendant claims that the board improperly affirmed the decision of the commissioner because the commissioner incorrectly applied the “date of injury rule” instead of the “date of disability rule” espoused in Mulligan v. F. S. Electric, 231 Conn. 529, 651 A.2d 254 (1994). We affirm the decision of the board.

The commissioner found the following facts. The plaintiff suffered a compensable back injury on February 27, 1988, while employed as a bakery chef in the defendant’s grocery store. On August 28,1990, the commissioner approved 117 weeks of benefits to compensate the plaintiff for a 22.5 percent permanent partial impairment incurred as a result of the 1988 injury.

The commissioner adjudicated the plaintiff to be totally disabled since January 3,1994, within the meaning of § 31-307. The commissioner also found (1) that the plaintiff became eligible for social security retirement benefits when he attained the requisite age of sixty-five on June 17,1998, and (2) that the social security retirement offset contained in § 31-307 (e) did not apply to the plaintiff because that statutory subsection was enacted in 1993 after the plaintiff had suffered his disabling injury. The findings of the commissioner were affirmed on appeal by the board.

On appeal, the defendant argues that the date of total disability controls the applicability of § 31-307 (e). The defendant contends that the statute applies to the plaintiff because he was rendered totally disabled after the enactment of § 31-307 (e). See Public Acts 1993, No. 93-228, § 16 (P.A. 93-228). To support its contention, the defendant argues that our Supreme Court abandoned the “date of injury rule,” which traditionally applies to workers’ compensation statutes, in Mulligan v. F. S. Electric, supra, 231 Conn. 529. We do not agree.

The plaintiff contends that § 31-307 (e) does not apply because his injury occurred prior to the subsection’s effective date, which was July 1, 1993. See P.A. 93-228, § 35. We conclude that the date of injury is the controlling date and, therefore, that § 31-307 (e) does not apply to the plaintiff.

At the outset, we set forth the appropriate standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the [board]. To the extent that the [board] has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the [board] draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) New London v. Picinich, 76 Conn. App. 678, 683, 821 A.2d 782 (2003). Clearly, the defendant’s appeal involves a question of law. We have stated: “Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) McEnemey v. United States Surgical Corp., 72 Conn. App. 611, 614, 805 A.2d 816, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002).

The resolution of the defendant’s appeal hinges on whether § 31-307 (e) applies retroactively. Before we reach that issue, we note that Mulligan is not dispositive of the issue before us. The precise issue addressed in Mulligan was “whether an injured employee’s workers’ compensation benefit rate . . . should be determined ... by reference to the employee’s earnings preceding the date on which he was injured or preceding the date on which he became incapacitated.” Mulligan v. F. S. Electric, supra, 231 Conn. 532. The Mulligan court simply utilized the date of total disability as a mere component in the calculation of the workers’ compensation benefit rate; therefore, it does not follow that the date of injury rule has been abandoned. See Green v. General Dynamics Corp., 44 Conn. App. 112, 119, 687 A.2d 550 (1996), rev’d on other grounds, 245 Conn. 66, 712 A.2d 938 (1998). Hence, Mulligan is not applicable to the resolution of the defendant’s appeal.

We must now address the issue of whether § 31-307 (e) is applicable to the plaintiff because his injury was suffered five years prior to the enactment of the statute.

To resolve that issue, we are guided by well defined principles of statutory construction. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302, 695 A.2d 1051 (1997). We begin by noting that a recently enacted statute, which imposes a new obligation on any person, shall not be construed to have a retrospective effect. General Statutes § 55-3. In addition, our Supreme Court has stated that when interpreting a workers’ compensation statute, it is an “accepted principle that a statute affecting substantive rights is to be applied only prospectively unless the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” Badolato v. New Britain, 250 Conn. 753, 757, 738 A.2d 618 (1999).

Our Supreme Court recently set forth the proper analysis for statutory interpretation and legislative intent in State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003) (en banc). The analysis requires us to “look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 577. Our determination of whether § 31-307 (e) applies prospectively is guided by the aforementioned principles of statutory interpretation.

Traditionally, the rights and obligations of the employer and employee are assessed at the date of injury. “The contract of employment incorporates the Workers’ Compensation Act [(act), General Statutes § 31-275 et seq.] . . . .” Chieppo v. Robert McMichael, Inc., 169 Conn. 646, 649, 363 A.2d 1085 (1975). “The rights and obligations of both parties to the contract are fixed and determined by the contractual and statutory provisions in force at the time the employee is injured.” Id. Procedural lights under the act do not vest at the time of injury. See Badolato v. New Britain, supra, 250 Conn. 758. Consequently, in the workers’ compensation context, “the date of injury rule . . . functions as a presumption of legislative intent . . . against retroactive application of a statute.” Id.

To determine whether the statute affects a substantive or procedural right, we look at the right or remedy involved in the legislation. See Davis v. Forman School, 54 Conn. App. 841, 854-55, 738 A.2d 697 (1999). In Dams, we stated that “a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Internal quotation marks omitted.) Id. We went on to state that “[w]here the amendment is not substantive . . . not directed to the right itself, but rather to the remedy, it is generally considered a distinctly procedural matter.” Id., 855.

The statutory subsection at issue clearly affects an employer’s substantive right to reduce the compensation benefits of a disabled worker once the employee becomes eligible for social security retirement benefits. Hence, absent a clear expression of legislative intent to the contrary, the defendant’s right to reduce the plaintiff’s compensation must have vested on the date of injury.

Our Supreme Court declared § 31-307 (e) to be constitutional in Rayhall v. Akim Co., 263 Conn. 328, 346-47, 819 A.2d 803 (2003). There, the Supreme Court discussed the legislative purpose and policy that gave rise to § 31-307 (e). The statute was enacted during an effort by the legislature to reform the act. Id., 346. The goal of the reformation was to ease the economic burden that the act imposed on employers. Id.; see also P.A. 93-228, § 16. “There is no legislative history referencing any specific intent with respect to the offset, now codified in § 31-307 (e). . . . The only legislative histoiy that expressly addresses the offset merely reflects that the legislature was aware of similar offset provisions in other jurisdictions . . . .” (Citation omitted.) Rayhall v. Akim Co., supra, 347. Because the legislative history is not helpful to our resolution of the defendant’s appeal, we look at the relationship of the statute to the existing legislation and common-law rules.

A statute is enacted as a whole and must be read as a whole rather than as separate parts or sections. Badolato v. New Britain, supra, 250 Conn. 760. Similarly, when the court engages in statutory analysis, it “consider[s] the statute as a whole . . . [and reconciles] its . . . parts ... to render a reasonable overall interpretation.” (Internal quotation marks omitted.) Davis v. Forman, supra, 54 Conn. App. 844.

General Statutes (Rev. to 1987) § 31-307 provides in relevant part that “[i]f any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . . ” (Emphasis added.) Here, the commissioner found that the compensable injury suffered by the plaintiff in 1988 resulted in his total incapacity to work as of 1994. Pursuant to Chieppo, the rights and obligations of both parties were fixed as of the date of injury, February 27,1988. Subsection (e) of § 31-307, enacted in 1993, must be applied prospectively because it impacts substantive rights. For that reason, § 31-307 (e) does not apply to the plaintiff. We conclude that the decision of the board was correct as a matter of law.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Royal Insurance Company also is a defendant, but is not a party to the present appeal. We therefore refer in this opinion to Waldbaum’s, Inc., as the defendant.

       General Statutes § 31-307 (e) provides: “Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee’s total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers’ compensation payment shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits.”

       “The date of injury rule is a rule of statutory construction that establishes a presumption that new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” (Internal quotation marks omitted.) Badolato v. New Britain, 250 Conn. 753, 756 n.5, 738 A.2d 618 (1999).

       The 22.5 percent partial impairment was derived from a compromise between the 20 percent disability presented by the defendant’s physician and the 25 percent impairment offered by the plaintiffs physician. The compromise figure was memorialized in a voluntary agreement between the plaintiff and the defendant Royal Insurance Company, which is not a party to this appeal.


text:
    STATE OF CONNECTICUT v. ROBERT HOLMES
    (AC 22799)
    Flynn, West and McLachlan, Js.

      Argued May 29
    officially released August 5, 2003

      Matthew J. Collins, special public defender, for the appellant (defendant).

      Julia K. Conlin, deputy assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Robert Holmes, appeals from the judgment of conviction rendered following his plea of guilty of assault in the first degree in violation of General Statutes § 53a-59. On appeal, the defendant claims that he is entitled to plain error review on the ground that his plea of guilty was not entered knowingly and voluntarily because (1) the trial court failed to advise him that he enjoyed a right against self-incrimination and that by pleading guilty he was waiving that right and (2) the totality of the circumstances illustrates that he did not understand fully the rights he was waiving. We affirm the judgment of conviction.

The following facts and procedural history are relevant to our resolution of this appeal. While in an automobile with his wife, the victim, the defendant repeatedly stabbed her in the upper torso, arms and chest. Once the victim finally was able to free herself from the defendant, she ran to a nearby auto body shop, where an ambulance arrived to transport her to a hospital. The victim underwent emergency surgery for her life threatening injuries, and she now suffers from permanent significant scarring of her torso and arms.

On November 13, 2001, after entering into a plea agreement with the state, the defendant withdrew his plea of not guilty and pleaded guilty to assault in the first degree. In accordance with the plea agreement, the state nolled a kidnapping charge and withdrew a persistent offender, part B information. Before accepting the guilty plea, the court canvassed the defendant in accordance with Practice Book §§ 39-19 and 39-20 and found the plea to be entered knowingly and voluntarily. The court reviewed the maximum penalty for assault in the first degree and the mandatory minimum sentence. The defendant also was advised of the elements of the charge and questioned regarding the voluntariness of his plea. The defendant affirmed that his attorney had answered all of his questions and confirmed that no one was forcing him to plead guilty or to give up his right to a trial. The court also questioned the defendant on whether he knew that he was giving up his right to a trial and all that a trial contains, including the right to a jury, the right to testify, the right to present a defense and the right to cross-examine witnesses. The defendant stated that he understood the waiver of those rights. The court then asked if the defendant had any questions, to which the defendant stated that he did not.

Thereafter, the court proceeded to notify the defendant that once the guilty plea was accepted, the defendant could not withdraw this plea without a legal reason and court approval. The defendant stated that he understood this and had no questions for his attorney or the court.

At two points in the canvass, there was some confusion. The defendant at first thought that his plea agreement was for forty years of incarceration suspended after twenty. The court apprised the defendant that his plea was actually for a maximum of twenty years of incarceration, with the right to argue for less, and a minimum of five years. The defendant and his attorney were also unclear as to whether the defendant still was serving a term of probation. The court explained to the defendant that any term of probation that he was still serving would be factored into his sentence, but he would not receive more than twenty years of incarceration. On both of these issues, the defendant stated that he understood his sentence.

The defendant did not have a factual dispute as to the basis of the guilty plea.3 Neither party knew of any reason that the plea should not be accepted. On the basis of these facts, the court found that there was a factual basis for the plea and that the plea was knowingly and voluntarily entered into with a full understanding of the consequences and with the assistance of competent counsel. At the end of the hearing, the court accepted the defendant’s guilty plea.

On November 21, 2001, the defendant filed a written motion to withdraw his plea pursuant to Practice Book § 39-27. In that motion, the defendant claimed that his plea was not knowing and voluntary. The court questioned the defendant as to the basis of his motion. Upon finding that there was no legal basis underlying the motion to withdraw his plea, the court denied it. The defendant does not challenge that ruling.

The court held a sentencing hearing on January 10, 2002, at which time both the state and victim argued for a twenty year sentence. The defendant, through his counsel, argued for a sentence of fifteen to seventeen years. The defendant also spoke at the sentencing, asserting to the court that most of what had happened was the fault of the victim. The court stated that it had considered rejecting the plea agreement because it was not sure that a sentence of twenty years was long enough in light of the actions of the defendant. The court noted the defendant’s extensive background of violent acts against women, the severity of his attack on the victim, his persistent attempts to blame others for his violent actions and his complete lack of remorse. The court, however, did accept the plea agreement and sentenced the defendant to twenty years incarceration.

The defendant now appeals, seeking plain error review, on the ground that his guilty plea was not knowingly and voluntarily entered.

“Practice Book § 60-5 provides in relevant part: The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ... As we recently have reiterated, however, [p]lain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 146 n.128, 836 A.2d 224 (2003).

We note that the defendant did not bring his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

I

The defendant first claims that he is entitled to plain error review because the court improperly accepted his plea of guilty without informing him that he had a right against self-incrimination. This omission, the defendant argues, implicated his right to due process, which requires that all guilty pleas must be knowingly and voluntarily entered. The defendant further argues that the court is bound to follow the mandatory provisions of the rules of criminal procedure, and its failure to do so in this case constituted plain error. The defendant’s claim is without merit.

The United States Supreme Court has held that a defendant’s plea must be knowingly and voluntarily entered or the plea is void for violation of due process. Boykin v. Alabama, 395 U.S. 238,243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). To support the conclusion that a defendant’s plea was knowing and voluntary, Boykin set forth three federal constitutional rights that the defendant must be apprised of before entering a plea: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury and (3) the right to confront one’s accusers. Id., 243; see also Practice Book §§ 39-19, 39-20.

Boykin does not state explicitly how a court should inform a defendant of his privilege against compulsory self-incrimination. See State v. Nelson, 221 Conn. 635, 640, 605 A.2d 1381 (1992). To satisfy this requirement, however, our Supreme Court has concluded that “at the time of the entry of a plea of guilty • • • [the defendant must] be informed by the court that, in conformity with his right against seff-incrimination, he could not be compelled to enter that plea.” Id., 640-41. Specific words are not required to inform the defendant of his right against compulsory sefi-incrimination. State v. Badgett, 200 Conn. 412, 420, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). The right is conveyed adequately when a defendant is advised that he need not enter the plea and he understands the effect of the plea. State v. Carter, 243 Conn. 392, 398, 703 A.2d 763 (1997).

In Carter, our Supreme Court determined that the defendant was notified of his right against self-incrimination in a plea canvass when it was shown that the defendant knew he was giving up the right to a trial and stated that he was doing so voluntarily and of his own free will. Id., 400-401. Additionally, in State v. Nelson, supra, 221 Conn. 635, our Supreme Court concluded that the Boykin test was satisfied where the defendant was informed that he had a right “to plead not guilty . . . and . . . that if he pleads guilty there will not be a trial of any kind so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him . . . .” (Internal quotation marks omitted.) Id., 642.

In the present case, the court discussed with the defendant the maximum and minimum sentences that he could receive in regard to his guilty plea. The defendant was asked repeatedly if anyone or anything was forcing him to enter his guilty plea. He also was questioned as to whether his plea was made voluntarily and of his own free will. The court informed the defendant that he was giving up his right to a trial, the alternative to a guilty plea. The court determined, through questioning, that the defendant understood that once the plea was accepted, only a valid legal reason in conjunction with the court’s approval would invalidate the plea. The defendant never suggested that he did not understand his rights or that he was not voluntarily entering his plea.

“[F]or protection of his privilege against self-incrimination, the federal constitution mandates only that a defendant be apprised of the fact that he does not have to enter a plea of guilty or nolo contendere and thus incriminate himself.” Id. The court’s canvass, prior to the acceptance of the defendant’s plea, adequately informed him that he possessed a right against self-incrimination that guaranteed that he need not incriminate himself by entering a plea of guilty. See Boykin v. Alabama, supra, 395 U.S. 243-44. Therefore, the defendant has failed to establish the existence of plain error.

II

The second argument raised by the defendant is that he is entitled to plain error review on the ground that his plea was not entered knowingly and voluntarily because the totality of the circumstances illustrated that he did not fully understand the rights he was waiving. The defendant cites three reasons why his plea was not knowing and voluntary: (1) the briefness of the court’s advisement, (2) the problematic relationship between the defendant and his counsel, and (3) the fact that the defendant filed a motion to withdraw the plea. None of these arguments, either alone or in combination, supports a conclusion that the defendant did not knowingly and voluntarily enter his guilty plea.

A plea must be knowing and voluntary to be constitutionally valid. State v. Garvin, 242 Conn. 296, 311, 699 A.2d 921 (1997). “Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986). The standard is whether the plea represents an intelligent and voluntary choice among the defendant’s available, alternative courses of action. State v. Parker, 67 Conn. App. 351, 354, 786 A.2d 1252 (2001).

Our Supreme Court has found that a plea is knowingly and voluntarily entered when the defendant understands the ramifications of his plea, the nature of the crime, the waiver of his rights and that his plea was guilty. See State v. Badgett, supra, 200 Conn. 415-20. In addition, the court must determine that the defendant had no further questions. See id. In terms of the ramifications of the plea, Badgett determined that on review, our focus must be “on whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book.” Id., 418.

When questioned by the court, the defendant admitted that he was not forced to enter his guilty plea, he understood the charges against him and the possible penalties, he stated that he had no further questions for his attorney or the court and that he still desired to enter his guilty plea. The record of the proceedings supports the determination that the defendant understood the plea canvass and voluntarily entered the plea.

We now analyze each of the defendant’s stated reasons for his claim that the totality of the circumstances demonstrate that his plea was not knowingly or voluntarily entered.

A

The defendant first points to the brevity of the court’s advisements as an example of why his plea was not knowingly and voluntarily entered. The defendant argues that he “was not informed of his rights to plead not guilty and to be tried by a jury or a judge, to confront, as well as to cross-examine, witnesses against him, to be represented by counsel at trial and to not be compelled to incriminate himself.” We disagree.

The court specifically inquired of and advised the defendant, in relevant part, as follows:

“The Court: Mr. Holmes, I’m going to ask you a few questions to make sure your plea is knowingly and voluntarily entered into. I’ve heard your date of birth and where you were born, and have you had enough time to speak to your lawyer?

“[The Defendant]: Yes.

“The Court: Has your lawyer answered all your questions?

“[The Defendant]: Yes.

* * *

“The Court: Now, a person is guilty of this [crime when] with intent to cause serious, physical injury to another person, he causes such injury to such person with a deadly weapon or dangerous instrument, and that is the assault in the first degree.

“I’m going to now define to you serious physical injury. Serious physical injury means ‘physical injury of which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.’ Any or all of those [are involved] in the definition of serious physical injury. Now, has anyone forced you, sir, to give up your right to a trial?

“[The Defendant]: No.

“The Court: Are you doing so of your own free will?

“[The Defendant]: Yes.

“The Court: You have a right to hear the evidence against you in a courtroom of law, in front of a jury, cross-examine witnesses and even testify if you so desire, and present any defense that you may desire to do. If I accept, sir, your guilty plea, you give up that right. You understand that?

“[The Defendant]: Yes.

“The Court: Now, I’ve explained to you the elements of the crime as well as the maximum penalty. Did you discuss this with your lawyer as well?

“[The Defendant]: (Inaudible response.)

“The Court: That’s a ‘[y]es’?

“[The Defendant]: Yes.

“The Court: Do you have any questions at all, sir, so far?

“[The Defendant]: No.”

On August 23, 2000, the defendant had elected a jury trial. As to the three core rights of Boykin, the court’s canvass informed the defendant that if the guilty plea were accepted, he was giving up his right to a jury trial and his right to cross-examine witnesses in front of that jury. Although the court did not expressly reference the defendant’s privilege against self-incrimination, the defendant knew that by his plea, he was giving up his right to trial generally by pleading guilty and specifically his right to testify on his behalf or not, as he chose. We conclude that the substance of that right was communicated to him.

Clearly, in accordance with the rules of criminal procedure as explained in Boykin v. Alabama, supra, 395 U.S. 243-44, State v. Nelson, supra, 221 Conn. 640-42, and State v. Badgett, supra, 200 Conn. 417-20, the court in its canvass fully ascertained that the defendant understood the ramifications of his plea, the nature of the crime charged, the waiver of his rights and that he was entering a plea of guilty.

B

Second, the defendant states that the poor quality of the attorney-client relationship caused him to enter a plea that was not knowing and voluntary. Specifically, the defendant points to the fact that he did not appear to understand the sentence to which he was agreeing and also that his attorney was not sure whether the defendant was on probation. The defendant has not provided us a record finding that his attorney made any mistakes. The defendant’s misapprehensions were corrected by the court before the plea was accepted, and we are not persuaded that these misapprehensions caused the defendant to enter a plea that was not knowing and voluntary.

The record further indicates that the defendant knew that he was giving up his right to a trial and receiving jail time. Although the defendant at first thought that his jail sentence would be forty years suspended after twenty, in actuality, the plea agreement more favorably called for a maximum of twenty years of incarceration with the right to argue for less and a minimum of five years. The defendant was apprised of the correct amount of possible jail time before his plea was accepted, and he acknowledged that he understood the sentence. In addition, although there was some confusion as to whether the defendant remained on probation for an earlier crime, the court explained to him that any term of probation that he was still serving would be factored into his sentence, but he would not receive more than twenty years of incarceration. The defendant stated that he understood this sentence.

During the plea canvass, the defendant was given the opportunity to ask questions both of his attorney and the court. The defendant declined this opportunity, even after the court explained that once the plea was accepted it only could be withdrawn for a valid legal reason with court approval. Accordingly, we see nothing in the record regarding the attorney-client relationship that would negate the defendant’s knowing and intelligent entry of his guilty plea.

C

In his last argument concerning his alleged failure to knowingly and voluntarily enter his plea, the defendant points to the fact that he filed a motion to withdraw that plea. Filing a motion to withdraw a plea, in and of itself, does not prove that the defendant did not understand his rights at the time of the plea.

Once a guilty plea has been entered, it cannot be withdrawn without leave of the court. State v. Andrews, 253 Conn. 497, 505, 752 A.2d 49 (2000). The grant or denial of this motion is within the court’s discretion. Id.

In this case, after allowing the defendant the opportunity to present the grounds for his motion, the court denied it. In his argument to the court, the defendant appeared to regret his plea and hoped that he had found a defense to the charges that had been brought against him, but this was not a valid reason for the granting of the motion. His reasons also did not illustrate that he had not entered his plea knowingly or voluntarily.

A “determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” (Internal quotation marks omitted.) State v. Garvin, supra, 242 Conn. 310. We have examined all of the arguments made by the defendant in support of his claim. The defendant has not demonstrated that his plea was not entered knowingly and voluntarily. The court’s plea canvass was adequate, satisfied the constitutional requirements and apprised the defendant of his core rights. With that knowledge, the record indicates that he chose to enter his plea voluntarily. See State v. Carter, supra, 243 Conn. 392; State v. Nelson, supra, 221 Conn. 635; State v. Badgett, supra, 200 Conn. 412.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       Practice Book § 39-20 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       The defendant did not dispute the assault, but did contest the location of the attack.

       Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The defendant believed that his plea should be withdrawn because the police allegedly failed to read him his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The court found that this was not a valid legal reason to withdraw the plea We agree with this finding.