text:
    IN RE SUMMER S.

    (AC 31109)
    Bishop, Lavine and Foti, Js.

      Argued September 1
    officially released October 19, 2010

      Keisha S. Gatison, for the appellant (respondent father).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Douglas G. Lilly, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

“This appeal underscores the sad distinction between willingness and ability to parent a child.” In re G.S., 117 Conn. App. 710, 712, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009). The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Summer. The respondent claims that the court improperly (1) determined that the department of children and families (department) made reasonable efforts to reunify him with his child and (2) found that he failed to achieve a sufficient degree of personal rehabilitation, pursuant to General Statutes § 17a-112 (j) (3) (B), as would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in Summer’s life. We affirm the judgment of the trial court.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous.... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 191, 986 A.2d 351 (2010).

The respondent first claims that the court improperly determined that the department made reasonable efforts to reunify him with Summer. He argues that, in making its determination on May 11, 2009, the court did not consider that the department failed to teach him the skills necessary in order to care for his child. In essence, the respondent is arguing that the court failed to consider that the department provided inadequate reunification services because it did not ensure his completion in the necessary programs that would have facilitated reunification. We disagree.

“[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Id., 192. In its memorandum of decision, the court noted that, despite repeated and proactive reunification efforts by the department, the respondent and the child’s mother were unable to secure suitable housing, unwilling or unable to address their “chronic financial problems” and unable to stabilize sufficiently the mother’s mental health and substance abuse issues or to rectify the respondent’s detrimental codependence with the mother. Although the court acknowledged that the respondent attempted to comply with some of the reunification efforts facilitated by the department, he declined services that would have increased his ability “to forge his own individual relationship with Summer . . . .’’In the end, the court determined that “[s]adly, the respondent's] day-to-day living situation never stabilized long and sufficiently enough for reunification efforts to prove successful.” Because there is ample evidence in the record to support this determination, we conclude that the court’s finding was not clearly erroneous.

The respondent next claims that the court improperly determined by clear and convincing evidence that he failed to achieve a sufficient degree of personal rehabilitation, pursuant to § 17a-112 (j) (3) (B), as would encourage the belief that within a reasonable time he could assume a responsible position in Summer’s life. First, the respondent contends that he has no “parenting issues to rehabilitate.” Additionally, he argues that in making its determination, the court failed to take into account his willingness to separate from the mother in order to provide a stable environment for Summer. We disagree.

In its memorandum of decision, the court acknowledged that the respondent may potentially have been capable of independently parenting Summer; however, his inability to separate from the mother and assume the initiative as the primary caregiver for Summer precluded this option. This conclusion was further supported by a court-ordered psychological evaluation that found that the respondent’s inability to recognize the parenting limitations of the mother “demonstrate [d] a continued risk to Summer in their care.” This decision by the court, however, was not achieved without an acute understanding regarding the position of the respondent. The court noted in its memorandum of decision that “[i]t is very clear that [the respondent and the mother] love Summer and want only the best for their daughter. Equally evident, however, is that the mother’s significant mental health issues make it impossible for her to safely and appropriately parent Summer. For better or for worse, [the respondent and the mother], until April, 2009, presented [themselves] as a unified and isolated entity with virtually no community or family support.” See footnote 5 of this opinion.

“[PJersonal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Gabrielle M., 118 Conn. App. 374, 379, 983 A.2d 282 (2009). “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 180, 743 A.2d 165 (1999).

We see no useful purpose in further repeating the facts or reciting the applicable law, as the court thoroughly set forth the relevant facts and the applicable law in its thoughtful and well reasoned decision. Based on our careful review, we conclude that the record amply supports the factual determinations made by the court, and we conclude that the court correctly applied the law to the facts it properly found. See In re Mariah P., 109 Conn. App. 53, 55, 949 A.2d 1292, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).

The judgment is affirmed.

       The court also terminated the parental rights of Summer’s mother. Because she has not appealed from that judgment, we refer in this opinion to the respondent father as the respondent.

       Alternatively, the respondent urges us to apply plain error review; see Practice Book § 60-5; to his claims because the court failed to apply relevant statutory law to the facts of this case. See, e.g., State v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006, cert. denied, 271 Conn. 937, 861 A.2d 510 (2004). “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.). In re Sarah S., 110 Conn. App. 576, 590-91, 955 A.2d 657 (2008). We conclude, after reviewing the record and the trial court’s memorandum of decision, that the respondent’s claim is without any merit.

       General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “(i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

       At oral argument before this court on September 1,2010, the respondent’s counsel was unable to support this assertion. On September 10, 2010, the respondent’s counsel provided this court with a transcript page that purportedly supported the respondent’s willingness to separate completely from the mother. After a thorough review of the respondent’s entire testimony from the termination of parental rights hearing on April 29, 2009, we can find no conclusive facts or evidence showing that he was willing to separate completely from the mother and assume the role of primary caregiver for Summer. Although the respondent did file for divorce, his petition was withdrawn, and he was still living with the mother at the time of the hearings that decided whether his parental rights would be terminated.

       Notwithstanding the mother’s shortcomings coping with basic day-today parenting obligations, as well as her struggles to maintain stable mental health, the respondent continued to allow her to be the primary caregiver for Summer.


source: Caselaw Access Project

author: LAV1NE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEITH D. SWARD
    (AC 31320)
    DiPentima, C. J., and Lavine and Hennessy, Js.

      Argued September 3
    officially released October 19, 2010

      Gregory A. Thompson, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Ronald Dearstyne, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAV1NE, J.

The sole issue in this appeal is whether the trial court properly denied the defendant’s motion to suppress evidence obtained after his initial encounter with a state police trooper during a routine traffic stop. The defendant, Keith D. Sward, appeals from the trial court’s judgment of conviction, rendered following a conditional plea of nolo contendere, of illegal operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On appeal, the defendant claims that the court improperly denied his motion to suppress because, after his initial encounter with the state trooper, the traffic stop was unlawfully expanded in violation of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On April 13, 2007, at approximately 1:21 a.m., Trooper Kenneth Freed was patrolling the New Britain area when he observed the defendant’s vehicle accelerating at a high rate of speed as it entered Route 72 westbound. Freed performed a vehicle clock check and followed the defendant for approximately one and one-half miles. While performing this check, Freed estimated the defendant’s speed at approximately 100 miles per hour in a fifty-five mile per hour zone.

After observing the defendant’s vehicle touch the right fog line of the highway, Freed activated his vehicle’s emergency lights and siren to effect a traffic stop. The defendant moved his vehicle from the left lane of the highway to the right lane without using the turn signal and, as he exited the highway, stopped on the left side of the ramp. Freed instructed the defendant to move his vehicle to the right side of the ramp, which he did.

For safety reasons, and because the defendant’s vehicle was partially parked in the right travel lane, Freed approached the defendant’s car from the passenger’s side. The defendant acknowledged that he knew he had been stopped because he was driving seventy to seventy-five miles per hour, and, upon Freed’s request, produced his license, insurance documents and the vehicle’s registration. After seeing the defendant fumble through the contents of his glove box, Freed asked the defendant if he had been drinking. The defendant responded that he had not.

Freed took the defendant’s license, registration and insurance information back to his cruiser to check their validity and found that the defendant had a valid license, proper insurance and that his vehicle was not reported stolen. After five to ten minutes, he returned to the defendant’s vehicle, but this time he approached from the driver’s side. At this point, Freed had not determined whether he would issue the defendant a summons for reckless driving or whether he would place the defendant under custodial arrest. In order to interact with him personally, Freed asked the defendant to step out of his vehicle and walk to the front of the cruiser. Freed proceeded to pat down the defendant for weapons once he exited the vehicle.

Standing within one or two feet of the defendant, Freed detected an odor of alcohol on the defendant’s breath. The defendant admitted to consuming two alcoholic beverages despite initially stating that he had not been drinking that night. Freed also observed that the defendant’s eyes were red, bloodshot and glassy, and he then had the defendant perform field sobriety tests.

The defendant was arrested and charged with illegal operation of a motor vehicle while under the influence of alcohol or drugs, reckless driving and making an improper turn. On June 2, 2008, the defendant filed an amended motion to suppress all evidence obtained after the conclusion of the initial encounter with Freed, claiming that the scope of the traffic stop was unlawfully expanded after Freed returned to the defendant’s vehicle and that there was no reasonable and articulable suspicion of intoxication to permit the expansion. An evidentiary hearing was held on October 22, 2008, in which the court heard the testimony of Freed and received into evidence a copy of a videotape of the traffic stop in question. The trial court denied the motion to suppress on March 31, 2009, stating in its subsequent articulation that when Freed returned to the defendant’s car, the initial purpose of the stop had not been fully achieved and, therefore, the scope of the stop had not been unlawfully expanded. On July 30, 2009, the defendant entered a conditional plea of nolo contendere to the charge of illegal operation of a motor vehicle while under the influence of intoxicating liquor or drugs, with a right to appeal pursuant to General Statutes § 54-94a. This appeal followed.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Mullins, 288 Conn. 345, 362-63, 952 A.2d 784 (2008).

Our Supreme Court recently addressed the proper analysis for considering the constitutionality of the detention of a motorist during a routine traffic stop in State v. Jenkins, 298 Conn. 209, 3 A.3d 806 (2010). In Jenkins, the defendant motorist was stopped by a police officer at 11:15 p.m. for making abrupt lane changes without using his vehicle’s turn signals. Id., 214. The officer approached the defendant’s vehicle, asked some questions concerning the stop and the defendant’s travel plans, and then went back to his cruiser to check the defendant’s personal and vehicular information. Id., 214-15. This check revealed no outstanding warrants pertaining to the defendant. Id., 215. The officer then began to write an infraction ticket for the illegal lane changes. Id. The officer returned to the defendant’s vehicle and asked the defendant to get out of the car for the purposes of explaining the ticket. Id. Due to the defendant’s nervous demeanor and account of his travels, the officer asked him if he had anything illegal on his person or in his vehicle. Id., 215-16. The defendant was patted down, which revealed no contraband, and then he voluntarily permitted the officer to search his car. Id., 216. The officer found what he believed to be cocaine in the defendant’s car and placed the defendant under arrest. Id. From the time that the officer initiated the stop, until the defendant consented to the search of his vehicle, only ten to fifteen minutes had passed. Id., 216-17. In all, the entire stop lasted at most twenty minutes. Id., 217.

Following the denial of his motion to suppress the evidence seized from his vehicle, the defendant pleaded nolo contendere to one count of possession of narcotics with intent to sell by a person who is not drug-dependent. Id., 218. On appeal, this court, in addressing the defendant’s claim that all evidence seized from his vehicle was the fruit of an unlawfully extended traffic stop, held that the trial court should have suppressed the evidence taken from the defendant’s vehicle because he “was unlawfully detained ... his consent to search the vehicle was tainted by that illegal detention and . . . the state failed to purge the taint of the illegal detention.” State v. Jenkins, 104 Conn. App. 417, 424, 934 A.2d 281 (2007), rev’d, 298 Conn. 209, 3 A.3d 806 (2010). In reaching this decision, this court relied on case law that predated Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). State v. Jenkins, supra, 298 Conn. 243. Our Supreme Court reversed this court’s decision, holding that, under controlling federal law as decided by Muehler and its progeny, the officer did not measurably or unreasonably prolong his traffic stop of the defendant. Id., 246. In reaching this conclusion, the court laid out the applicable constitutional analysis for the present appeal. Id.

“Courts considering the constitutionality under the fourth amendment of a police officer’s interaction with a motorist during a routine traffic stop apply the principles developed under the line of case law implementing the central holding of Terry v. Ohio, supra, 392 U.S. 1. . . . Under Terry, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.” (Citations omitted; internal quotation marks omitted.) State v. Jenkins, supra, 298 Conn. 232-33.

Although a police officer cannot detain a motorist indefinitely, “the Supreme Court has rejected attempts to impose a hard-and-fast time limit on Terry stops, in favor of a reasonableness inquiry where, [i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. ... A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” (Internal quotation marks omitted.) Id., 235. Therefore, “judicial review of routine traffic stops goes beyond a strict stopwatch test; reasonableness is not measured solely by the temporal duration of the stop alone but, rather, requires scrupulous consideration of the reasonableness of the officers’ actions during the time of the stop.” Id., 242.

Moreover, “[a] lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. ... An officer’s inquiries into matters unrelated to the justification for the traffic stop, [the United States Supreme Court] has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” (Emphasis in original; internal quotation marks omitted.) Id., 235-36.

Applying the applicable law, as articulated in Muehler and followed by our Supreme Court in Jenkins and elsewhere, we conclude that Freed did not unlawfully extend the traffic stop. While the defendant concedes that the initial stop of his vehicle was legal, he argues that the stop became unlawful when Freed asked him to exit the vehicle. According to the defendant, there was no reasonable suspicion based on specific facts to take any action at that point other than ticketing or arresting the defendant for reckless driving. For the following reasons, we reject this argument.

We first note that, as stated in State v. Jenkins, supra, 298 Conn. 246, and our prior case law, it is proper for a police officer to ask a driver to exit his vehicle during a routine traffic stop. “A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws. Upon doing so, he prudently may prefer to ask that an occupant exit the vehicle; any intrusion upon an occupant’s personal liberty in directing that action is de minimis because, on balance, it serves to protect the officer.” (Internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988). In the present case, when Freed asked the defendant to exit his vehicle, the defendant’s car was parked on a highway exit, and part of the car was protruding into the right travel lane. Any burden on the defendant’s personal liberty in exiting the car was certainly de minimis given the danger Freed faced by standing in the travel lane of a highway exit ramp at night. See id.

Next, the entire traffic stop effected by Freed meets the reasonableness inquiry articulated in Jenkins. Although the record does not indicate the total length of time of the traffic stop, the court found that when Freed went back to his cruiser to check the defendant’s identification and insurance documents, he was gone only five to ten minutes. Furthermore, counsel for the defendant stated during oral argument that the entire incident lasted “probably twenty-five minutes.” Even if the stop did take twenty-five minutes in its entirety, as argued by the defendant, we believe this amount of time is not unreasonable under the circumstances of this case.

While temporal duration alone is not dispositive of the constitutionality of a traffic stop, Freed’s actions during the period in question, such as checking the defendant’s license, insurance and registration, and questioning the defendant about the consumption of any alcoholic beverages, were all reasonable as they related to the traffic stop itself. Although Freed asked the defendant a second time if he had been drinking that night, this second inquiry concerning the consumption of alcohol did not measurably extend the duration of the stop.

Finally, although not addressed in Jenkins, our case law indicates that it was permissible for Freed to have the defendant perform field sobriety tests in this situation. “[RJoadside sobriety tests that do not involve long delay or unreasonable intrusion, although searches under the fourth amendment, may be justified by an officer’s reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated. . . . [W]e have noted that our case law presumes that such testing is incident to the initial stop, based on the officer’s reasonable suspicion, rather than on the subsequent arrest. . . . We have concluded that such roadside testing and questioning based on a reasonable, articulable suspicion in the absence of probable cause is clearly warranted within the meaning of the Connecticut constitution.” (Citation omitted; internal quotation marks omitted.) State v. Hall, 110 Conn. App. 41, 53, 954 A.2d 213 (2008).

At the point Freed had the defendant perform the sobriety tests, Freed had detected an odor of alcohol emanating from the defendant, the defendant had been driving in excess of 100 miles per hour and his vehicle had touched the fog line, the defendant had changed his answer and admitted to consuming alcohol that evening, and Freed had observed the defendant drive to the left side of the ramp rather than to the right side. These observations all gave rise to a reasonable, articulable suspicion that the defendant was intoxicated.

Accordingly, we conclude that Freed did not unlawfully extend the duration of the traffic stop by requesting that the defendant exit his vehicle or by questioning the defendant further about whether he had consumed any alcohol that night. Additionally, we find that Freed was justified in having the defendant perform field sobriety tests. Therefore, the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with reckless driving in violation of General Statutes § 14-222 and the infraction of making an improper turn in violation of General Statutes § 14-242. The state nolled those charges when the defendant entered his conditional plea of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs.

       When the officer questioned the defendant about his travel itinerary, the defendant told the officer that he was returning from visiting his daughter in New York, and gave the officer a New Jersey license and a valid Pennsylvania rental agreement for his vehicle. State v. Jenkins, supra, 298 Conn. 215. The officer testified that the defendant appeared “ ‘unusually nervous,’ ” gave “ ‘quick answers’ ” to his questions and did not make eye contact. Id.

       In his brief, the defendant relies heavily on this court’s decision in Jenkins. The defendant’s brief was filed on March 11,2010, and our Supreme Court’s decision in Jenkins was officially released on September 7, 2010, and available on the judicial branch website on August 31, 2010, just prior to oral arguments, which occurred on September 3,2010. Muehler, however, was decided prior to the submission of briefs. While counsel for the defendant conceded during oral argument that this court’s decision in Jenkins no longer supported his position, he still contended that the facts articulated by the trial court to justify Freed’s right to detain the defendant were not sufficient at the moment of the initial encounter to expand the stop.

       Although both the state and the court also relied on Freed’s observation that the defendant fumbled to locate the vehicle’s registration and insurance documents as evidence of intoxication, we note that a traffic stop is a stressful situation, and it is likely that some drivers will find it difficult to locate certain documents within their vehicle under this pressure.


author: PER CURIAM.

text:
    JASON K. CHARBONNEAU v. COMMISSIONER OF MOTOR VEHICLES
    (AC 31522)
    Bishop, Harper and Beach, Js.

      Submitted on briefs September 10
    officially released October 19, 2010

      Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Drew S. Graham, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Jason K. Charbonneau, commenced an administrative appeal in the trial court from the decision of the defendant, the commissioner of motor vehicles (commissioner), suspending his motor vehicle operator’s license for ten months and disqualifying him from operating a commercial motor vehicle for life. Following a hearing, the court upheld the commissioner’s decision and dismissed the plaintiffs appeal. On appeal, the plaintiff challenges the court’s decision. We affirm the judgment of the trial court.

On November 1, 2008, the plaintiff was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor. Subsequent chemical analysis tests of the plaintiffs breath indicated that he had blood alcohol contents of 0.178 and 0.172, respectively, thereby exceeding the statutory limit of 0.08.

The department of motor vehicles conducted an administrative hearing pursuant to General Statutes § 14-227b (g). At the hearing, the results of the two chemical analysis tests were admitted, among other evidence. Thereafter, the hearing officer, acting on behalf of the commissioner, found that the four criteria set forth in § 14-227b (g) had been satisfied. The commissioner thereafter ordered that the plaintiffs operator’s license be suspended for ten months and that the plaintiff be disqualified from operating a commercial motor vehicle for life.

The plaintiff appealed to the trial court pursuant to General Statutes § 4-183 (a). The plaintiff claimed, inter alia, that the chemical analysis test results were inadmissible at the administrative license suspension hearing because the police officer administering the tests had not engaged in a proficiency review as required by § 14-227a-10b (d) (1) (B) (ii) of the Regulations of Connecticut State Agencies. In response to a request by the trial court, the commissioner issued a supplemental finding that stated, inter alia, that the officer who had administered the breath tests to the plaintiff was last reviewed for proficiency in August, 2006, but that there was no evidence in the record to indicate that his certification had ever been revoked as a result. In its ruling dismissing the plaintiffs appeal, the court concluded that the results of the plaintiffs breath tests were admissible. This appeal followed.

We first set forth our standard of review. “[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

On appeal before this court, the plaintiff claims that the trial court erred in affirming the commissioner’s decision to admit into evidence at the administrative license suspension hearing the results of two chemical analysis tests taken by the plaintiff on November 1, 2008. The plaintiff reasons that the chemical analysis test results were inadmissible because the police officer administering the tests had failed to undergo a review of his proficiency in the operation of the breath test device within twelve months since his last review, thereby failing to comply with § 14-227a-10b (d) (1) (B) (ii) of the Regulations of Connecticut State Agencies.

Section 14-227b (g) sets forth the issues to be decided in license suspension hearings and provides in relevant part that “[t]he hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. . . .”

Our Supreme Court has stated that “the plain language of [§ 14-227b (g)] expressly and narrowly limits the scope of the license suspension hearing to the four issues enumerated in the statute.” Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999). The plaintiff claims, however, that the test results obtained by the questioning police officer erroneously were relied on by the commissioner because the officer, though certified to operate the testing device, had not engaged in a timely proficiency review. In addressing a virtually identical claim, our Supreme Court held that a lack of recertification as required by the regulations does not prevent the commissioner’s consideration of and reliance on the officer’s report. See Schallenkamp v. DelPonte, 229 Conn. 31, 41-43, 639 A.2d 1018 (1994). We see no meaningful distinction between the facts of Schallenkamp and the facts of the present case.

The judgment is affirmed.

       See General Statutes § 14-227a.

       Because the hearing officer acts on behalf of the commissioner, we refer to the hearing officer as the commissioner.

       Section 14-227a-10b (d) (1) (B) (ii) of the Regulations of Connecticut State Agencies provides: “Bach operator shall demonstrate to a certified instructor competence in the operation of a device or instrument at least once during the 12-month period following the last such demonstration. The results of each such review shall be reported to the commissioner.”


text:
    IN RE ALBERT M.

    (AC 31478)
    Gruendel, Alvord and Peters, Js.
    Argued September 2
    officially released October 19, 2010

      Scott W. Sawyer, with whom was Loma J. Dicker, for the appellant (respondent father).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Douglas J. Monaghan, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

To protect the constitutional right of a parent to raise his or her children; Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990); the department of children and families (department) is required to make reasonable efforts to reunify a child with the parents prior to filing a petition for the termination of parental rights. General Statutes § 17a-lllb (a); General Statutes § 17a-112 (j) (1); In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003). The principal issue in this case is whether the department adequately informed the father that he would lose his parental rights to his son unless he separated from the child’s mother. We affirm the judgment of the trial court.

On August 12, 2008, the petitioner, the commissioner of children and families, filed a petition pursuant to § 17a-112 et seq. to terminate the parental rights of the respondents mother and father of the minor child, Albert M. After an evidentiary hearing, the court, Hon. Michael A. Mack, judge trial referee, held in favor of the petitioner and terminated the rights of both parents. Only the respondent father has appealed.

The trial court found the following facts. The father and the mother began cohabiting in 1995. In .1996, they had a son, whose guardianship was transferred to the maternal grandmother in 2006. The petitioner removed Albert, who was bom in September, 2007, from his parents’ care immediately following his birth in response to a report that the mother did not appear to be able to care for him. The mother cannot serve as custodial parent for Albert because she suffers from numerous impairments that interfere with her parenting. Although the father knows of the mother’s disability, he has such a “highly conflicted codependent relationship” with her that he is “unable to separate from her.” Psychological evaluations conducted on both parents revealed a multitude of mental health concerns about the mother but showed the father’s only limitation to be an inability to think abstractly. The fact that he loves Albert has not been in dispute, either at trial or in this appeal.

In light of the record at trial, the court found that the petitioner had established, by clear and convincing evidence, that the department had made reasonable efforts to reunify the father with Albert within the meaning of § 17a-lllb (a), that the father would not be able to achieve a sufficient degree of personal rehabilitation within a reasonable time within the meaning of § 17a-112 (j) (3) (B), and that the termination of his parental rights was in the best interest of the child within the meaning of § 17a-112 (k).

Our standard for review of these evidentiary findings is well established. We review the court’s findings to determine whether they are clearly erroneous. In re Giovanni C., 120 Conn. App. 274, 275, 991 A.2d 642 (2010).

I

The father’s principal claim on appeal is that the petitioner did not meet her evidentiary burden of proof under §§ 17a-lllb (a) and 17a-112 (j) (3) (B) because the department failed effectively to inform him of the importance of separating from his wife, Albert’s mother, in order to retain his parental rights. According to the father, this failure to communicate undermines the legitimacy of the court’s findings with respect to each of the statutory requirements for termination of his parental rights. We are persuaded, however, that the record does not support the father’s claim.

The centerpiece of the father’s contention on appeal is that, because he has significant difficulties with abstract thinking and the department was aware of these difficulties, the department was required to inform him expressly about the steps he needed to take to retain his parental rights. In particular, he focuses on the department’s failure ever to issue an express directive telling him to separate from the mother. We disagree that he was not informed of the importance of such a separation.

The father’s argument ignores the court’s express finding, based on the evidence of record, that he was told that the chance of having Albert returned to him would be increased if he separated from the mother. At trial, he testified that a department social worker had told him that he would have a better chance of having his child returned if he resided separately from the mother and that the primary obstacle to having Albert placed with him was his relationship with the mother. At oral argument in this court, he acknowledged having received this advice from the social worker. There is no claim that the advice contradicted some other instruction that he had received from the department. Significantly, he did not testify that he did not know that separation from the mother could help achieve reunification with the child.

On this record, we cannot conclude that it was clearly erroneous for the court to find that the department made reasonable efforts toward reunification as required by § 17a-lllb (a) and that the father failed to achieve a sufficient degree of rehabilitation as required by § 17a-112 Q). The father had actual knowledge of the necessity of changing his relationship with the mother, despite the department’s failure to put that requirement in concrete terms. The petitioner presented probative evidence that the relationship between the parents posed a significant barrier to the father’s effective parenting of Albert and that the father failed fully to appreciate the risk that the mother could pose to their young son. The court noted the absence of any evidence “that [the father] intended to make any significant changes to the current situation in the future . . . On this record, it was not clearly erroneous for the court to decline to credit the father’s testimony that he would have left the mother if explicitly ordered to do so.

II

The father finally claims that, in the dispositional phase of the termination proceeding under § 17a-112k, the court improperly found that the petitioner had established her claim that termination of his parental rights was in Albert’s best interest. In addition to reiterating his argument that the department failed to give him a clear directive to separate from Albert’s mother, he faults the court for failing to consider that waiting longer to give him additional time for successful rehabilitation would not be harmful to Albert. We are not persuaded.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the father’s parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . The best interests of the child include the child’s interest in sustained growth, development, well-being and continuity and stability of its environment.” (Internal quotation marks omitted.) In re Johnson R., 121 Conn. App. 464, 466, 994 A.2d 739, cert. granted on other grounds, 297 Conn. 925, 998 A.2d 168 (2010). As with the findings made in the adjudicatory phase, we reverse the court’s determination of the best interest of the child only if the court’s findings are clearly erroneous.

In making the determination that the father challenges, the court properly followed the statutory directive to determine the best interest of the child. Notably, the father does not challenge the sufficiency of the evidence to support any of the court’s specific findings pursuant to § 17a-112 (k). He argues instead that the court improperly failed to consider that waiting longer to give him additional time to achieve successful personal rehabilitation would not have been harmful to Albert. We are not persuaded that it was clearly erroneous for the court, in recognition of Albert’s interest in stability and permanency, to decline to extend the time for the father to demonstrate his ability to assume responsibility for the care of the child.

The judgment is affirmed.

       The father continued living with the mother during virtually all of the time that Albert has been in the care of the petitioner, excepting several weeks hiatus during which he attempted separation but found it to be “ineffective.”

       General Statutes § 17a-lllb (a) provides: “The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.”

       General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “(i) has been found by the Superior Court or Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to taire to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes § 17a-112 (k) authorizes the court, in the dispositional phase of a termination of parental rights hearing, to determine whether the petitioner has established, by clear and convincing evidence, that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court must consider and make written findings regarding the seven factors delineated in the subsection. In re Tremaine C., 117 Conn. App. 590, 600-601, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).


author: ALVORD, J.

text:
    DEBRA CRELAN v. ARTHUR J. CRELAN, JR., ET AL.
    (AC 31308)
    Gruendel, Robinson and Alvord, Js.
    Submitted on briefs September 10
    officially released October 19, 2010

      Jose L. Altamirano and Cesar L. Sousa filed a brief for the appellant (plaintiff).

      James L. Fischer filed a brief for the appellees (defendants).
   Opinion

ALVORD, J.

In this premises liability action, the plaintiff, Debra Creían, appeals from the judgment of the trial court, rendered following the granting of a motion for a directed verdict, which was treated by the court as a motion for a judgment of dismissal, in favor of the defendants, Arthur J. Creían, Jr., and Janice A. Creían. The issue in this appeal is whether the trial court properly granted the motion on the ground that the plaintiff failed to establish that the defendants had notice of the specific defect that caused her injuries. Because we conclude that the record is inadequate for our review, we decline to review this claim and affirm the judgment of the trial court.

The record contains the following relevant facts and procedural history. The defendants are the brother and sister-in-law of both the plaintiff and the only witness called to testify in the present case, Brenda Creían. The defendants gave Brenda Creían permission to store personal property in a bam located on their property. The belongings were to be stored in a loft over the bam, which was accessible via an aluminum ladder belonging to the defendants. Brenda Creían was provided with a key to access her personal property in the event that the defendants were not home.

Brenda Creían regularly visited the loft and used the ladder without incident between September and November, 2003. One week prior to the accident in question, she requested that the plaintiff help her to access her personal property, at which time the plaintiff used the ladder without difficulty. On November 23, 2003, the plaintiff again accompanied Brenda Creían to their brother’s house. During her efforts to assist Brenda Creían with gaining access to her belongings, the plaintiff ascended the ladder. The bottom of the ladder slipped, causing the plaintiff to fall onto the floor of the bani. As a result of the fall, the plaintiff suffered injuries to her left foot.

The plaintiff thereafter filed this premises liability action, alleging that her injuries had been caused by the negligence of the defendants. Specifically, the plaintiff alleged that her brother and sister-in-law allowed her to access the second floor loft by way of a defective aluminum ladder and, thus, created a dangerous and unsafe condition. After presentation of the plaintiffs case-in-chief, the defendants orally moved for what they termed a “directed verdict,” arguing that the plaintiff had failed (1) to prove that the defendants owed a duty to her, (2) to prove any defect in the ladder and (3) to show that the defendants had either actual or constructive notice of any defect, if such defect existed.

The court, in ruling on the motion, noted that the plaintiff and Brenda Creían both had testified that they did not consider the ladder defective. Furthermore, the court found that the plaintiff failed to produce evidence that the defendants were ever notified of any problem, concern or defect with the ladder. Accordingly, the court granted the defendants’ motion and rendered judgment dismissing the action on the ground that the plaintiff had failed to introduce sufficient evidence to establish notice of any defect. The court expressly declined to rule on the issue of the standard of care, or on the defective nature of the ladder, because the plaintiff, in failing to show notice, did not prove one of the basic elements for a premises liability action, and, thus, the cause of action failed in its entirety.

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion. Specifically, the plaintiff asserts that there was sufficient testimony from her and Brenda Creían for the trier of fact to have found that the defendants had notice of the dangerous and defective condition. The plaintiff argues that because the defendants had full control over the bam, knew the only ingress and egress was via the ladder, and provided the ladder with “no non-slip protection,” they had actual and constructive notice that the ladder was defective and dangerous.

As an initial matter, we set forth the applicable standard of review. “Practice Book § 15-8 provides that upon a defendant’s motion, a trial court may dismiss a plaintiffs cause of action for failure to establish aprima facie case following the plaintiffs presentation of evidence. A prima facie case ... is one sufficient to raise an issue to go to the trier of fact. 9 J. Wigmore, [Evidence (4th Ed. 1974)] § 2494, p. 379. In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . Whether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 455-56, 802 A.2d 887 (2002).

This court cannot assess the validity of the trial court’s judgment without the capability to review the evidence. The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 61-10; Ng v. Wal-Mart Stores, Inc., 122 Conn. App. 533, 537, 998 A.2d 1214 (2010); Forrestt v. Koch, 122 Conn. App. 99, 111, 996 A.2d 1236 (2010); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). In this case, the record is inadequate for review because we have not been provided with a transcript of the trial. The plaintiffs case was presented on July 7, 2009, and the court rendered an oral judgment the next day, July 8,2009. In her appeal, the plaintiff requested a transcript of the proceedings on “7/8/09—entire transcript from this date.” This court notes that the transcript from that date contains only the trial court’s ruling on the defendants’ motion but no record from which to review the plaintiffs case-in-chief. The transcript from July 7, 2009, was never requested by the plaintiff.

Under these circumstances, “[w]e, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997); see also State v. Rios, 30 Conn. App. 712, 719-20, 622 A.2d 618 (1993) (O’Connell, J., concurring). Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the plaintiffs claims would be entirely speculative. See Alix v. Leech, supra, 5. As it is not the function of this court to find facts, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that although the defendants orally had moved for a directed verdict at the close of the plaintiffs case-in-chief, the trial court in its ruling properly characterized the motion as one for a judgment of dismissal and ruled on it as such. Citing Winn v. Posades, 281 Conn. 50, 58 n.2, 913 A.2d 407 (2007), the court stated that the motion for a judgment of dismissal had replaced the former motion for a nonsuit, pursuant to General Statutes § 52-210, for failure to make out a prima facie case. Because the court ruled on the defendants’ motion as one seeking a judgment of dismissal, we review it as such. See Goulet v. Zoning Board of Appeals, 117 Conn. App. 333, 343 n.10, 978 A.2d 1160, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009).

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”


text:
    STATE OF CONNECTICUT v. DAVID OSUCH
    (AC 30489)
    Bishop, Gruendel and Lavery, Js.
    Argued May 27
    officially released October 26, 2010

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom were Michael E. O’Hare, supervisory assistant state’s attorney, and, on the brief, David I. Cohen, state’s attorney, Courtney Gates-Graceson, special deputy assistant state’s attorney, and Steven G. Weiss, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, David Osuch, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly determined that it did not have jurisdiction to address his motion and that the court should have corrected his sentence because it was based on inaccurate information. Although we agree with the defendant that the court improperly determined that it lacked jurisdiction, we conclude that the doctrine of res judicata bars review of the merits of his claim.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. After being found guilty of burglary in the third degree on five criminal dockets, the defendant was sentenced, on January 30, 2001, to five consecutive four year terms of incarceration by the court. We upheld the convictions on appeal. See State v. O’Such, 74 Conn. App. 906, 815 A.2d 296, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

Subsequently, the defendant filed a petition for a writ of habeas corpus, alleging, inter alia, that the presentence investigation report (report) contained incorrect information, that his counsel was ineffective for failing to review the report with him and that he never met with the probation officer who prepared the report— hence, its inaccuracy. He also claimed that, despite his extensive history of substance abuse, he has never received drug treatment and that he only admitted to the police that he committed one burglary, not five. On November 7,2006, the court granted the habeas petition in part, restoring the defendant’s right to file an application for sentence review. Osuch v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-03-0004174-S (November 7, 2006). The court denied the petition as to his other claims, including the claims concerning the report. The court deemed not credible the defendant’s claim that he never met with the probation officer, as well as his claim that he informed the police that he was involved in only one burglary.

In specifically responding to the defendant’s allegations about the report, the court found that the defendant’s attorney “read the [report] prior to sentencing and incorporated references to it when he addressed the sentencing court. Further, the sentencing transcript also shows that [the defendant] himself referenced the [report] when he addressed [the court], a fact that belies [the defendant’s] testimony before [the habeas] court and further undermines his credibility.” Moreover, the court went on to state that, despite the defendant’s “assertions to the contrary, the court finds it extremely unlikely that the errors identified in the [report] would have had any bearing or impact on the sentence imposed by the court. Notably, in its remarks justifying the length of the sentence imposed, the court did not rely upon any of the alleged errors in the [report], but rather cited [the defendant’s] lengthy criminal history, his decision to go to trial and the nature of the present charges. Thus, [the defendant] has failed to prove how, if at all, any errors in the [report] influenced the sentencing court. The claims pertaining to the errors in the [report] are, therefore, without merit.” Thereafter, the defendant appealed following the denial of his petition for certification to appeal from the habeas judgment, and we dismissed the appeal. See Osuch v. Commissioner of Correction, 111 Conn. App. 135, 957 A.2d 887, cert. denied, 289 Conn. 957, 961 A.2d 420 (2008).

Pursuant to the relief granted by the habeas court’s decision, the matter came before the sentence review division (division) for a hearing on the merits on March 25,2008. Before the division, the defendant argued again that he never saw the report prior to sentencing, that his attorney never reviewed the report with him and that the report contained a number of inaccuracies— the same inaccuracies he had cited to the habeas court. Additionally, he alleged that the report overstated the extent to which he received drug treatment. He contended that if these inaccuracies in the report had been corrected prior to sentencing, it is possible that the sentencing court could have reduced his overall sentence by making the sentences on the individual burglary counts concurrent or by imposing drug treatment during probation, as opposed to a long prison sentence.

The division concluded that “[t]aking into consideration the nature of these crimes, the sentence imposed is neither inappropriate nor disproportionate.” Rather, given the defendant’s past probation violations and accumulated disciplinary problems while incarcerated, the division found that the defendant’s twenty year sentence was appropriate because the defendant “was a career burglar who had been convicted of numerous burglaries in the past.” The decision of the division could not be appealed. See State v. Rupar, 293 Conn. 489, 498, 978 A.2d 502 (2009).

The defendant, however, pursued another procedural avenue in order to contest his sentence. While the habeas judgment was being considered on appeal, the defendant filed a motion to correct the sentences pursuant to Practice Book § 43-22. A hearing on the motion to correct an illegal sentence was held before the trial court, Hon. Martin L. Nigro, judge trial referee, on August 12, 2008.

At the hearing, the defendant again contended that the sentences were imposed in an illegal manner because the report contained inaccuracies—the same inaccuracies previously cited to the habeas court and the division—that the trial court subsequently relied on in sentencing him. He also claimed that he had never met with his probation officer concerning the report and, furthermore, that he had obtained additional evidence in the form of two letters to support his claim. The state, in turn, argued that the trial court lacked jurisdiction to review the motion and that the defendant was estopped from arguing that the court should not rely on the report because, at the time of sentencing, both he and his counsel urged the court to rely on it.

After the attorneys concluded their arguments, the trial court considered whether it had jurisdiction to rule on the motion to correct pursuant to Practice Book § 43-22. Finding that the sentence was legal and well within the sentencing parameters, the court stated that “[t]he sentences are not incorrect in that they did not exceed the possible maximum sentence that could be imposed. And that’s the only area where the court is entitled to take jurisdiction.” As a result, the court concluded that it did not have jurisdiction to hear the matter and dismissed the defendant’s motion to correct. In so ordering, however, the court noted that in sentencing the defendant it had taken into account his previous criminal record of similar crimes. It also observed that the defendant might still be able to obtain a correction by way of a habeas petition if he could establish that there was anything false in the report. This appeal followed.

On appeal, the defendant characterizes the court’s oral decision on the motion to correct as a denial based on lack of jurisdiction and also as a denial on the merits. Thus, the defendant contends that if we conclude that the court did have jurisdiction to hear the matter, we should then proceed to review his illegal sentence claim on the merits. Although we agree with the defendant that the court improperly dismissed his motion to correct on jurisdictional grounds, the doctrine of res judicata bars consideration of the merits of his claim.

I

We must first discuss the principles of subject matter jurisdiction that guide our resolution of the defendant’s claim. “In the absence of statutory or constitutional provisions, the limits of [the trial court’s] jurisdiction are delineated by the common law. . . . Although the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition [or it may correct a sentence imposed in an illegal manner]. . . . Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of [Practice Book] § 43-22, the court lacks jurisdiction to entertain it.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 108 Conn. App. 486, 488, 948 A.2d 389 (2008). Our determination of whether a motion to correct falls within the scope of Practice Book § 43-22 is a question of law and, thus, our review is plenary. See id.

The defendant does not argue that the court imposed an illegal sentence. “An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). Rather, the defendant argues that his sentence was imposed in an “illegal manner.” “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Emphasis added; internal quotation marks omitted.) Id., 444.

Although the defendant’s motion is entitled a motion to correct an illegal sentence, the defendant’s claim falls squarely within the foregoing “illegal manner” definition. He alleges that the court relied on inaccurate information in sentencing him in 2001 based on a report that was prepared by a probation officer who never met with him. Accordingly, the defendant contends that he was denied the right to be sentenced by a judge who was relying on accurate information. We conclude that the defendant is entitled to file this motion under Practice Book § 43-22 and that the court possessed jurisdiction to entertain it.

II

Despite our determination that the court improperly dismissed the defendant’s motion on jurisdictional grounds, we must decline the defendant’s invitation to address the merits of his claim on appeal. We conclude that the doctrine of res judicata bars the defendant’s claim. See Massey v. Branford, 119 Conn. App. 453, 464-65, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).

On appeal, the state claims that the trial court’s dismissal of the defendant’s petition for a writ of habeas corpus and his motion for sentence review were judgments on the merits and that his motion to correct an illegal sentence was therefore barred by the doctrine of res judicata. The defendant, in turn, claims that the issues on appeal are not barred by the doctrine of res judicata because he presented new evidence to the trial court when he filed his motion to correct an illegal sentence.

Although the state did not explicitly designate the doctrine of res judicata as an alternate ground for affirmance of the trial court’s decision, we conclude that res judicata provides this court with an alternate ground to affirm. Practice Book § 63-4 (a) (1) states that an appellee who “wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . shall file a preliminary statement of issues within twenty days from the filing of the appellant’s preliminary statement of the issues.” This court is not precluded, however, from reviewing an alternate ground that was not raised in accordance with Practice Book § 63-4 (a) (1) (A) so long as the appellant will not be prejudiced by consideration of that ground for affirmance. See Practice Book § 63-4 (a) (1) (“[whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue”).

Although the state did not explicitly characterize res judicata as an alternate ground for affirmance, it raised the issue in its brief, and the defendant had an adequate opportunity to respond, and did so, in his reply brief. Given that the defendant was able to address the issue, it is appropriate for this court to consider res judicata as an alternate ground for affirmance. See Gerardi v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010).

“[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... [or any claim based on the same operative facts that] might have been made.” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43, 694 A.2d 1246 (1997). “A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 109 Conn. App. 92, 96, 950 A.2d 587, cert. denied, 289 Conn. 930, 958 A.2d 157 (2008). “[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, supra, 43-44.

We must determine, therefore, whether the claim raised by the defendant in his motion to correct an illegal sentence was already litigated and determined in an earlier proceeding. The applicability of res judicata principles depends on whether the present claim is sufficiently similar to the previous claim to warrant our giving preclusive effect to the prior judgment. See State v. Richardson, 86 Conn. App. 32, 38, 860 A.2d 272 (2004), cert. denied, 273 Conn. 907, 868 A.2d 748, cert. denied, 545 U.S. 1107, 125 S. Ct. 2550, 162 L. Ed. 2d 281 (2005). We conclude that the defendant’s claim, regarding the allegedly inaccurate report prepared by a probation officer who had never met with the defendant, is the same claim that both the habeas court and the division had previously considered and decided on the merits through the issuance of final judgments. Thus, the doctrine of res judicata bars the defendant from reasserting his claim on appeal.

Finally, we are cognizant of the general rule that res judicata must be specially pleaded. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). “This general rule, however, yields when . . . the circumstances reveal that a remand would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road.” (Internal quotation marks omitted.) Tucker v. Pace Investments Associates, 32 Conn. App. 384, 629 A.2d 470, cert. denied, 228 Conn. 906, 634 A.2d 299 (1993), cert. denied, 510 U.S. 1196, 114 S. Ct. 1305, 127 L. Ed. 2d 657 (1994).

In this case, the preclusive effects of res judicata are so patently applicable that a remand to the trial court would be inefficient as it could only lead to the same result we reach here. We conclude, therefore, that the doctrine of res judicata bars the defendant’s motion to correct an illegal sentence. Application of the doctrine by this court effectuates public policy by promoting judicial economy and avoiding inconsistent judgments. See Honan v. Dimyan, 63 Conn. App. 702, 706 n.10, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001).

In sum, we conclude that the trial court improperly determined that it lacked jurisdiction to entertain the defendant’s motion to correct an illegal sentence. We note, however, that “[an appellate court] can sustain a right decision although it may have been placed on a wrong ground.” (Internal quotation marks omitted.) LaBow v. LaBow, 69 Conn. App. 760, 761 n.2, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002). We also conclude that the doctrine of res judicata bars the defendant’s claim.

The form of the judgment is improper, the judgment dismissing the motion to correct an illegal sentence for lack of subject matter jurisdiction is set aside and the case is remanded with direction to render judgment denying the motion.

In this opinion the other judges concurred.

       In the five informations and five judgments underlying the sentences on appeal, the defendant’s surname is spelled as it appears in the present appeal. We note, however, that his surname was spelled as “O’Such” in prior published opinions. See State v. O’Such, 74 Conn. App. 906, 815 A.2d 296, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

       The defendant claimed that the report contained numerous inaccuracies that his attorney failed to correct. Specifically, the defendant claimed that the following statements in the report were not accurate: (1) that he had no relationship with his parents until his teenage years; (2) that he presently has no relationship with his father and a limited relationship with his mother; (3) that he had no plans to get an education; (4) that his prescribed psychiatric medications were helping with respect to his paranoia; (5) that he was using drugs at the time of the burglary offenses; and (6) that he was part of a prison gang in 1992.

       In direct contradiction to this statement, we note that in the defendant’s testimony before the habeas court, he admitted that he was involved in a drug treatment program in 1991 but was discharged after fighting with another client.

       The court specifically found that the log book of the Northern Correctional Institution’s housing unit indicated that on December 15, 2000, at 8:30 a.m., the probation officer visited the defendant’s housing unit for a professional visit. Although the defendant claimed that the court could not infer from this fact that the officer actually met with him, the court noted that the defendant bore the burden of proof in the matter, yet chose, nonetheless, not to call the officer as a witness.

       The defendant had sixteen prior criminal convictions, many of which were for offenses similar to the burglaries for which he was sentenced in 2001. On several prior occasions, the defendant had been placed on probation, but each time he violated the conditions, and, thus, the suspended portions of his sentences were put into execution.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       Previously, a hearing was held on July 21, 2008, at which time the court, Comerford, J., denied the motion without prejudice so that it could be heard by Judge Nigro, who was the sentencing judge in the matter.

       As we have previously stated, the habeas court specifically concluded that the defendant failed to prove how any of the alleged inaccuracies in the report influenced the sentencing court. Furthermore, the division found that the defendant’s twenty year sentence was appropriate because the defendant was a career burglar who had been convicted of numerous residential burglaries. In arriving at its conclusion, the division rejected the defendant’s argument regarding the sentencing court’s reliance on the allegedly inaccurate report.

       Both in its brief and at oral argument, the state argues that we should “sua sponte” determine that the doctrine of res judicata bars the defendant from reasserting his claim on appeal. In his reply brief, as well as at oral argument, the defendant claims that he presented new evidence to the court, in the form of two letters, and that this new evidence supports his contention that the probation officer prepared an inaccurate report, which the sentencing court improperly relied on when sentencing the defendant. Consequently, the defendant asserts that this situation is analogous to successive habeas petitions, where res judicata does not apply when a petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition. Even if this analogy was appropriate, we reject this claim because the defendant has failed to make a showing that his allegedly new evidence was not reasonably available, with the exercise of due diligence, both at the habeas court proceeding and, subsequently, at the sentence review division. Furthermore, these new letters do nothing to refute the earlier finding of the habeas court that the defendant failed to prove how any of the alleged inaccuracies in the report influenced the sentencing court or the division’s determination that the sentence was appropriate because he was a career criminal.
      We also note that given these arguments, it is clear that the state raised the issue of res judicata and the defendant responded to that issue in his reply brief. Thus, we are not deciding this case on a ground that the parties did not raise or brief before us. Cf. Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (reversing Appellate Court’s judgment rendered on basis of issue parties never raised, briefed, argued), aff'd after remand, 105 Conn. App. 49, 935 A.2d 1037 (2007); Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994) (parties improperly deprived of opportunity to brief issue when court addressed issue sua sponte).