author: WEST, J.

text:
    JOANNE D’AURIA v. FRANK SOLOMINE ET AL.
    (AC 27892)
    Gruendel, Robinson and West, Js.
    Argued March 19
    officially released May 13, 2008

      Bruce Matzkin, with whom was Andrew J. Campbell, for the appellants (defendants).

      Frank J. Kolb, Jr., with whom, on the brief, was Joseph A. Marotti, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendants, Frank Solomine and Patrick Solomine, appeal from the judgment of the trial court awarding the plaintiff, Joanne D’Auria, damages and costs in this action for breach of a contract for the purchase of real property. The defendants raise several claims on appeal. We decline to review those claims, however, because we conclude that the appeal is moot.

The relevant facts and procedural history are as follows. On October 19, 2002, the defendants signed an agreement to purchase property owned by the plaintiff in East Haven. On this same date, the defendants also paid an initial deposit of $1000. The defendants paid an additional deposit of $8000, as required by the agreement, by check dated October 28, 2002. In accordance with the agreement, the $9000 deposit was held in escrow by the Realtor, Cyr Real Estate, LLC, prior to closing. Furthermore, the agreement provided that, in the event of a default, the $9000 deposit was to be considered liquidated damages. In a letter dated December 3, 2002, the defendants informed the plaintiff that they were unable to secure financing to purchase the property and therefore requested the return of the $9000 deposit.

On February 26, 2003, the plaintiff commenced this action, alleging breach of contract and quantum meruit. Because the defendants did not notify the plaintiff of their inability to obtain financing within the contractual contingency period, the plaintiff was seeking payment of the deposit made by the defendants. On May 7, 2003, the plaintiffs motion for default for failure to appear was granted. A judgment was rendered on the default, and the plaintiff was awarded liquidated damages, attorney’s fees, interest and costs. On December 15, 2003, the court, Skolnick, J., granted the defendants’ motion to open the judgment, which was filed in September, 2003. Subsequently, the defendants cited in Cyr Real Estate, LLC, and brought a third party complaint against it, alleging improper disbursement of funds held in escrow. After a court trial, the court, Hon. Frank S. Meadow, judge trial referee, concluded in a June 5,2006 memorandum of decision that the defendants breached the contract by failing to notify the plaintiff of their inability to secure financing within the contractual contingency period. The court rendered judgment in favor of the plaintiff in the amount of $9000 plus costs and found in favor of Cyr Real Estate, LLC, on the third party complaint. The $9000 deposit was released subsequently from escrow and turned over to the plaintiff.

The defendants appealed from the June 5, 2006 judgment on July 26, 2006. On December 11, 2006, the plaintiff filed a chapter 7 bankruptcy petition. She listed the defendants’ appeal from the judgment as an unsecured nonpriority claim against her estate. On March 20,2007, the plaintiff received a bankruptcy discharge. In her brief, the plaintiff argues that “any possible debt that existed between her and the defendants-appellants by virtue of the real estate contract that existed between the parties has been discharged as to the plaintiff-appellee in bankruptcy.” As a result, the plaintiff argues, the appeal in the present case is moot.

“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . [A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.” (Internal quotation marks omitted.) Lucas v. Deutsche Bank National Trust Co., 103 Conn. App. 762, 766, 931 A.2d 378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).

In the present case, the plaintiff argues in her brief that the appeal is moot because any debt that could have existed between her and the defendants was discharged when she received a bankruptcy discharge. She cites 11 U.S.C. § 727 and 11 U.S.C. § 524 to support her argument. The defendants did not file a reply brief to respond to this argument. We agree with the plaintiff that the debt has been discharged and that, therefore, the appeal is moot.

In Lightowler v. Continental Ins. Co., 255 Conn. 639, 769 A.2d 49 (2001), our Supreme Court noted that “under 11 U.S.C. § 727, a debtor whose bankruptcy petition satisfies the requirements of chapter 7 of the Bankruptcy Code generally is entitled to the discharge of any debt that arose prior to the filing of the petition. The discharge of a debt pursuant to § 727 triggers the operation of the provisions of 11 U.S.C. § 524, which shield the debtor from any personal liability for that debt by affording the debtor the right to an injunction against the commencement or continuation of an action ... to collect, recover or offset any such debt as a personal liability of the debtor . . . .” (Internal quotation marks omitted.) Lightowler v. Continental Ins. Co., supra, 644-45. Our Supreme Court continued to define a claim that arose prior to the filing of the petition. It stated that “[a] claim will be deemed pre-petition when it arises out of a relationship recognized in, for example, the law of contracts or torts. A claim exists only if before the filing of the bankruptcy petition, the relationship between the debtor and the creditor contained all of the elements necessary to give rise to a legal obligation—a right to payment—under the relevant non-bankruptcy law.” (Internal quotation marks omitted.) Id., 647. In the present case, the debt in question arose out of a relationship recognized in the law of contracts. Indeed, the defendants had signed a sale agreement to purchase property owned by the plaintiff.

The question then becomes whether the debt in this case, which is contingent on the reversal of the trial court’s judgment, is a debt falling within the ambit of debts discharged pursuant to 11 U.S.C. § 727. The term “claim” is defined in the Bankruptcy Code as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured . . . .” 11 U.S.C. § 101 (5) (A). Our Supreme Court noted, therefore, that “[b]y this broadest possible definition ... [of the term claim, the Bankruptcy Code] contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.” (Emphasis in original; internal quotation marks omitted.) Lightowler v. Continental Ins. Co., supra, 255 Conn. 648. In the present case, the debt is contingent on the reversal of the trial court’s judgment, and it falls within the definition of a claim as stated in the Bankruptcy Code. As a result, it is capable of being discharged pursuant to 11 U.S.C. § 727.

Therefore, when the plaintiff was granted a discharge of debt, this claim by the defendants was discharged. “A discharge in bankruptcy is neither a payment nor an extinguishment of a debt; the discharge simply bars future legal proceedings to enforce the discharged debt against the debtor. ... A debt remains in existence after a discharge in bankruptcy, although it is divested of its character as a personal obligation that is legally enforceable.” (Citations omitted.) Ramsay v. Camrac, Inc., 96 Conn. App. 190, 201, 899 A.2d 727, cert. denied, 280 Conn. 910, 908 A.2d 538 (2006). In the present case, therefore, the defendants are prohibited, under 11 U.S.C. § 524, from instituting future proceedings to enforce any claim or debt allegedly owed to them by the plaintiff. Because the defendants are prohibited from instituting any legal proceedings to enforce this claim, they can obtain no practical relief, and the appeal is moot. We therefore decline to review the defendants’ claims. See Lucas v. Deutsche Bank National Trust Co., supra, 103 Conn. App. 766.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendants claim that the court improperly (1) found that the twenty-five day financing contingency period began to run upon the defendants’ payment of their deposit, (2) found that the defendants materially breached the sale and purchase agreement with the plaintiff, (3) held that the liquidated damages provision contained in the sale and purchase agreement was enforceable, (4) excluded statements made by the plaintiff’s real estate agent and real estate attorney, (5) denied the defendants’ motion in limine, (6) refused to allow the defendants to make an opening statement and (7) assessed costs against the defendants.

       The agreement contained a provision regarding the contingency of the financing. It provides: “If BUYER is unable to secure a commitment for such financing within the number of days specified in #5e, and fails to notify SELLER or SELLER’S Agent in writing of such inability within the time limit specified in #5e, this contingency shall be deemed satisfied and this Agreement shall continue in full force and effect.” The agreement specified that the buyer had twenty-five days from the acceptance of the offer within which to obtain financing.

       In her petition, the plaintiff described the claim: “Judgment entered in favor of [the plaintiff] is being appealed by [the defendants] seeking to recover monies awarded to [the plaintiff].”

         Section 727 of title 11 of the United States Code provides the conditions for the discharge of debt due to bankruptcy. See 11 U.S.C. § 727.

       Section 524 (a) of title 11 of the United States Code provides in relevant part: “A discharge in a case under this title—1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title ... (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor . . . .”

       Section 523 (a) of title 11 of the United States Code lists several debts, which are excepted from the debts subject to automatic discharge set forth in the code. The debt in the present case does not fall within any of these exceptions. See 11 U.S.C. § 523 (a).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. THOMAS J. GOODSPEED
    (AC 27868)
    Flynn, C. J., and Lavine and Beach, Js.

      Argued February 25
    officially released May 13, 2008

      Jodi Zils Gagne, special public defender, with whom, on the brief, was Jane E. Carroll, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The principal issue to be decided in this appeal is whether there was sufficient evidence to support the judgment of conviction of the defendant, Thomas J. Goodspeed, rendered following a trial to the court, of two counts of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b). Construing the evidence in a light most favorable to sustaining the verdict, we conclude that the court reasonably could have found that the cumulative effect of the evidence, namely, the facts established at trial and the reasonable inferences drawn therefrom, was sufficient to establish that the defendant was guilty beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of the defendant’s claim. On the evening of March 5, 2005, at approximately 11:50 p.m., the defendant was driving his motor vehicle on Mountainville Road in Danbury, which is close to the town line of Bethel, with Robert Rustigan and Stephen Schofield as his passengers. The defendant lost control of his vehicle, and the vehicle left the roadway, struck a telephone pole, causing the pole to lean dangerously low to the ground, and landed on its side in an embankment. The defendant, Schofield and Rustigan then exited the motor vehicle. Thereafter, the defendant and Schofield ran into a wooded area, leaving Rustigan, who was injured, at the accident scene.

A few moments later, a woman came upon the accident scene. After observing Rustigan, who was bleeding, crawl out of the wooded area, the woman telephoned 911 and reported the motor vehicle accident. Officer Jason Broad of the Bethel police department responded to the scene, and, upon his arrival, he observed a vehicle resting on its passenger side in the embankment and Rustigan sitting on a curb. According to Broad, Rustigan was disheveled and bleeding. Broad questioned Rustigan about the incident, and Rustigan informed him that two other people had been in the motor vehicle. Rustigan also told Broad that he did not know where the defendant and Schofield had gone.

Adjacent to the motor vehicle, Broad observed fresh footprints in the snow, along with some blood, that led in an easterly direction into the wooded area and away from the houses located near the accident scene. Broad followed the footprints into the wooded area for approximately 300 yards until he reached a creek. At that point, Broad decided not to cross the creek and ceased following the footprints, which continued into the wooded area on the other side of the creek. Broad then returned to the scene of the accident.

Officer Patricia Colla of the Danbury police department also responded to the accident scene and noticed the telephone pole that the defendant’s vehicle had struck and damaged. According to Colla’s testimony, the telephone pole was leaning dangerously low to the ground in such a way that the wires could be brought down by a passing vehicle. Colla further testified that there is a wooded area to the east of the accident scene and that houses are located to the west and across the street from scene of the accident. Colla indicated that Rustigan, who was injured and appeared to be disoriented and dazed, was transported to a hospital. The medical records of Rustigan also indicate that he was injured, bleeding and intoxicated.

At the hospital, Colla questioned Rustigan, and he provided Colla with several possible locations for the defendant, one of which was Schofield’s home. Officer Augusto Lowe of the Danbury police department located the defendant and Schofield at Schofield’s house at approximately 1:30 a.m. on March 6, 2005, one and one-half hours after the accident. The defendant subsequently was arrested and charged in a long form information with two counts of evasion of responsibility in the operation of a motor vehicle. The first count related to the physical injury to Rustigan caused by the accident, and the second count concerned the property damage to the telephone pole, which also resulted from the accident.

At trial, Schofield testified that after everyone had exited the motor vehicle, he and the defendant waited at the vehicle for a short period of time before running into the wooded area. Schofield acknowledged that there are houses in the immediate vicinity of the accident and also that, by traveling through the wooded area, he and the defendant went in a direction opposite from that of Schofield’s house. Nevertheless, Schofield stated that he and the defendant ran into the wooded area because they were scared and did not know what to do. After running through the wooded area, the defendant and Schofield came to a road, on which they traveled to get to Schofield’s house. As they traveled on the road to Schofield’s house, Schofield and the defendant passed approximately ten houses; however, they did not stop at any of the houses to contact the police or to seek assistance. When Schofield and the defendant arrived at Schofield’s house, the defendant went into the bathroom and Schofield went to bed. Schofield also testified that neither he nor the defendant contacted the police upon their arrival at the house.

The defendant and Rustigan both testified that after the accident, the defendant had told Rustigan that he was going for help. Rustigan acknowledged, however, that he did not tell the police officers that the defendant had left him at the accident scene to get help. The defendant also testified that he did not contact the police from the nearby houses because he felt “uncomfortable stopping at somebody’s house at that time of night” and “felt more comfortable” going to Schofield’s house.

On March 29,2006, the court rendered judgment finding the defendant guilty of two counts of evasion of responsibility in the operation of a motor vehicle. The court concluded that “[b]ased on the credible facts, and circumstances presented . . . [the defendant] was [knowingly] involved in a motor vehicle accident on March 5, 2005, at 11:50 p.m. . . which resulted in physical injury to another person and damage to property. The defendant failed to stop and offer what assistance may have been needed as required by General Statutes § 14-224 (b).” The court merged the conviction on the two counts for sentencing and sentenced the defendant to nine months imprisonment, execution suspended, and one year of probation with special conditions. This appeal followed.

On appeal, the defendant claims that there was insufficient evidence to support the court’s conclusion that he was guilty of evasion of responsibility in the operation of a motor vehicle because the state did not prove that he had failed to stop and render assistance. We disagree.

We begin by setting forth the applicable standard of review. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808-809, 911 A.2d 1099 (2007).

“Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).

The defendant was convicted of violating § 14-224 (b), which provides in relevant part: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed . . . .” General Statutes § 14-224 (b). In construing subsection (a) of § 14-224, a panel of this court in State v. Rosario, 81 Conn. App. 621, 634, 841 A.2d 254, cert. denied, 268 Conn. 923, 848 A.2d 473 (2004), set forth the elements that the state is required to prove beyond a reasonable doubt in order to convict a defendant of evasion of responsibility in the operation of the motor vehicle. Because subsection (b) is substantially similar to subsection (a) of § 14-224, we find instructive and useful this court’s articulation in Rosario of the essential elements of evasion of responsibility in the operation of a motor vehicle.

To establish a violation of § 14-224 (b), the state first had to prove that (1) the defendant was operating a motor vehicle, (2) the defendant was knowingly involved in an accident and (3) the accident caused physical injury to any other person or damage to property. Id. Once those predicate elements were established, the state could prove a violation of § 14-224 (b) if it proved that the defendant failed to fulfill any one or more of the following duties required of him under the statute: (4) that the defendant failed to stop at once and render such assistance as may have been needed; or (5) unless there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to give his name, address, operator’s license number and registration number to the person injured or to the owner of the damaged property, or to any officer or witness to the accident; or (6) if there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to report immediately the physical injury or property damage to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and to give his name, address, operator’s license number and registration number together with the location and circumstances of the accident causing the physical injury or property damage. Id.; see also General Statutes § 14-224 (b). In the present case, the defendant does not dispute that the state proved the predicate elements of § 14-224 (b). Rather, with respect to both counts, the defendant contends that the state presented insufficient evidence to establish the fourth element of the charged offenses, namely, that he failed to stop and render such assistance as needed.

Regarding the first count, the defendant contends that the evidence demonstrated that he did stop and did provide the necessary assistance. The defendant argues that, by helping Rustigan exit the motor vehicle, he rendered assistance in compliance with § 14-224 (b). According to the defendant, he was not required to provide further assistance because Rustigan sustained only minor injuries to his fingers, and, moreover, the injuries did not incapacitate Rustigan, nor did they require immediate medical attention. In addition, the defendant claims that, in leaving Rustigan at the accident scene in order to summon help, he was providing assistance. With respect to the second count, the defendant argues that he left the accident scene to summon help, and, thus, he was providing assistance. The defendant further argues that the court unreasonably concluded that he failed to render assistance as needed regarding the damaged telephone pole because “[t]here was no assistance that [he] could have safely provided . . . .” We are not persuaded by any of the defendant’s arguments.

We first address the defendant’s contention that he complied with the statutory requirement of rendering assistance by helping Rustigan, who the defendant claims had only minor injuries that did not require immediate medical attention, exit the motor vehicle. The defendant, to support his argument that he was not required to provide further assistance, attempts to minimize the injuries sustained by Rustigan. We disagree with the defendant’s characterization and, furthermore, are guided by State v. Rosario, supra, 81 Conn. App. 632 n.9., in which this court stated that a defendant “cannot avoid his obligations under § 14-224 by engaging in post hoc speculation as to whether his assistance would have been necessary.”

In addition, the defendant’s argument ignores the evidence that Rustigan, who was injured, disoriented and bleeding, required further assistance, which the defendant failed to provide when he ran into the wooded area, away from the accident scene and in a direction opposite from that of Schofield’s house. As the trier of fact, the court found that the defendant, in failing to contact the police or other emergency personnel at the nearby houses or upon arriving at Schofield’s house, did not render the assistance needed by Rustigan, who was injured, bleeding and intoxicated. At trial, Rustigan testified that he followed Scofield and the defendant into the wooded area for a short distance before deciding to return to the accident scene. Rustigan, however, stated that it took him approximately five minutes to determine in which direction he should travel to locate the road. The evidence adduced at trial also indicated that the woman who reported the accident had observed a bleeding man, later identified as Rustigan, crawl out of the wooded area. Further, the testimony of the responding officers indicated that Rustigan was injured, bleeding, dazed and disoriented. The court reasonably could have concluded that in light of Rustigan’s condition, the defendant, by not contacting the police and by running into the wooded area away from the accident scene, failed to provide such assistance as needed.

The defendant further argues that, with respect to the damaged telephone pole, the court reasonably could not have concluded that he left an unsafe roadway condition without rendering any assistance. In support of his claim, the defendant asserts that there was no assistance that he could have provided safely concerning the pole, which was leaning dangerously low to the ground with dangling wires. Contrary to the defendant’s argument, he was not required to put himself in harm’s way to comply with the statutory mandate of providing such assistance as may have been needed. Our review of the record persuades us that the court reasonably could have concluded that assistance was needed and that the defendant safely could have provided assistance by either contacting the police or other emergency personnel or by alerting other motorists, who might have passed by, of the unsafe roadway condition from a position on the side of the road.

According to the defendant, the evidence was insufficient to establish that he failed to stop and render assistance as needed because he left the accident scene, including the injured Rustigan and the damaged telephone pole with the dangerously low dangling wires, to summon help. The court, however, did not find credible the defendant’s testimony that he was trying to summon help and, therefore, concluded that the defendant failed to provide such assistance as may have been needed. “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [finder of fact], and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 399, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). “The [finder of fact] can . . . decide what—all, none or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 145, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

In reaching its conclusion, the court, as it was free to do, disbelieved the defendant and, thus, rejected his alternative factual scenario. The court based its credibility determination, in part, on its factual findings that the defendant, in running away from the accident scene and into the wooded area, traveled in a direction that was opposite from that of Schofield’s house. The court further found that the defendant did not seek assistance from the occupants of the houses that were in the vicinity of the accident scene or from the approximately ten houses that were on the road to Schofield’s house. The court also found that, upon arriving at Schofield’s house, the defendant failed to contact the police or other emergency personnel and, instead, entered the bathroom. One and one-half hours later, the defendant still had not called the police. On the basis of these facts, the court reasonably inferred that the defendant’s “intention was not to summon help, but rather to escape detection.” After reviewing the evidence in the light most favorable to sustaining the finding of guilt, we conclude that the court’s findings of fact were not clearly erroneous and the court reasonably could have found that the defendant, in not contacting the police, failed to render such assistance as may have been needed.

Accordingly, we conclude that the evidence presented by the state was sufficient to support the defendant’s conviction of evasion of responsibility in the operation of a motor vehicle in violation of § 14-224 (b).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s detailed findings were made in response to an articulation ordered by this court.

       We note that at the conclusion of the state’s case, the defendant moved for a judgment of acquittal on both counts, which was denied.

       General Statutes § 14-224 (b) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.”

       Subsections (a) and (b) of § 14-224 differ in that subsection (a) involves situations in which the accident causes death or serious physical injury. In contrast, subsection (b) of § 14-224 concerns situations where the accident causes “physical injury, as defined in [General Statutes §] 53a-3, to any other person or ir\juiy or damage to property . . . General Statutes § 14-224 (b).


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. WILLIAM PETAWAY
    (AC 27088)
    McLachlan, Lavine and Mihalakos, Js.

      Argued December 3, 2007
    officially released May 20, 2008

      David V. DeRosa, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, William Petaway, appeals from the judgment of conviction rendered when he was sentenced by the trial court after pleading guilty to robbery in the first degree under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The plea was made pursuant to a Garvin agreement. In this appeal, the defendant claims that (1) the court, Damiani, J., improperly refused to disqualify itself from adjudicating the defendant’s motion to allow him to withdraw his plea, (2) Judge Damiani improperly denied the motion to withdraw the guilty plea after improperly imposing (a) a twenty-four hour house arrest condition and (b) a “no arrest” condition as part of the Garvin agreement, and (3) the court, Gold, J., improperly used probable cause, instead of preponderance of the evidence, as the standard to determine whether the defendant had breached the Garvin agreement. We do not agree with the defendant and therefore affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The defendant was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) as a result of an incident that took place in 2003. On October 20, 2003, the defendant, armed with a handgun, along with a partner, entered a gasoline station and convenience store in New Haven where they jointly stole money from the cash register.

After initially rejecting a plea agreement, the defendant requested that his case be placed on the firm trial list. The defendant was scheduled to appear in court on December 17,2004, on a motion to increase his bond, but he failed to appear. As a result, Judge Damiani ordered his $25,000 bond forfeited, ordered that the defendant be rearrested and set his new bond at $200,000.

The defendant eventually decided to plead guilty after indicating to the court that he had spoken to his attorney, Beth Merkin. Judge Damiani stated that Merkin, the defendant and the prosecutor, James G. Clark, all had agreed on a plea agreement for the defendant, namely, that he would plead guilty and receive ten years in prison, would promise to appear in court and then would return for sentencing. The court agreed to implement this plea agreement, provided that the defendant would adhere to certain conditions the court would impose. The court agreed to release the defendant, providing that he agreed to wear an ankle bracelet and promised to appear in court. If the defendant did not appear on the date set by the court, he would be sentenced to twenty years imprisonment. The court told the defendant that if he “[blew] curfew” or was “arrested for a new offense,” the court would hold a hearing to determine whether he had violated those conditions. If the court found that the defendant had violated either of those conditions, it would sentence him to between ten and twenty years in prison. The defendant told the court that he understood the agreement and that he concurred in it. He then pleaded guilty under the Alford doctrine. Next, the court told the defendant that he had to appear on March 18, 2005, for sentencing. Finally, defense counsel noted for the record that if the defendant appeared on March 18, as directed, the state would enter either a nolle or a dismissal on the failure to appear charge that resulted from the December 17,2004 proceeding. In response, the prosecutor stated that “[a]Il other counts, other than the one [the defendant] plead[ed] to, will be nolled.”

The court reconvened proceedings prior to the March 18, 2005 date set for sentencing. On March 4, 2005, Judge Damiani indicated that he had received a report that the defendant “had been arrested on an assault charge, family violence crime in geographical area number seven” and that the defendant’s bail supervisor, Janet Camevale, had submitted to the court a report indicating that he had violated his house arrest several times. The defendant failed to appear before Judge Damiani as ordered. As a result, the court ordered the rearrest of the defendant and set his new bond at $500,000. On April 12, 2005, the defendant appeared before Judge Damiani, seeking to dismiss Merkin as his attorney. The court granted the defendant’s motion and appointed a special public defender to represent him. On April 26,2005, the defendant, represented by special public defender Michael O. Sheehan, again appeared before Judge Damiani, requesting a bond reduction. The court granted the defendant’s request and set bond for $75,000 in cash only. The court stated that the defendant could post bond only at the courthouse and only with the court’s permission.

The defendant next appeared before Judge Damiani on May 31, 2005. The defendant filed two motions on that day: a motion to withdraw his Alford plea and a motion to disqualify Judge Damiani from further presiding over his case. Judge Damiani denied the defendant’s motion to disqualify him from further proceedings, stating that “[t]he motion to disqualify goes to the sentencing phase, not to the motion to withdraw.” Judge Damiani disqualified himself, however, from the sentencing phase of the case because he had been involved in previous negotiations with the defense counsel regarding the number of years to which the defendant would be sentenced. The court also denied the defendant’s motion to withdraw his Alford plea. Judge Damiani found that the defendant agreed to the twenty-four hour house arrest and the “no arrest” condition and that the conditions were legal.

On June 8,2005, the defendant appeared before Judge Damiani and indicated that he wanted to proceed pro se. The court granted the defendant’s motion to represent himself after finding that he had made a “competent, intelligent, rational choice” to do so. On June 29 and July 1, 2005, Judge Gold presided over a hearing in which the parties presented evidence and arguments on the issues of (1) whether the conditions of the Garvin agreement stipulated to by the parties were valid and enforceable, and (2) whether the defendant violated those conditions. Judge Gold did not rule on the conditions of the Garvin agreement and violations until July 14, 2005. As a preliminary matter, the court stated that the defendant’s failures to appear would play no part in its sentencing decision. The court then stated its findings. The court found that the electronic monitoring condition, or the “curfew” condition, required a twenty-four hour house arrest and that the defendant received “more than fair and accurate notice of that condition and indeed affirmatively agreed to it at the time of his plea.” The court next found that the parties agreed as to the interpretation of the condition requiring no new criminal conduct. They understood this condition to mean that if the defendant engaged in any new criminal conduct in the two month period prior to sentencing, then that conduct, if proven at a hearing, would result in a sentence on the robbery charge of between ten and twenty years.

The court ruled that the conditions requiring electronic monitoring and no new criminal conduct were valid. Finally, the court found that the defendant breached both of the conditions. The court made this finding under the reasonable doubt standard, finding that the state’s evidence satisfied the highest burden of proof. Judge Gold sentenced the defendant on August 19, 2005, to twelve and one-half years in prison on the basis of his violations of the Garvin agreement, not his failures to appear. Additional facts will be set forth as necessary.

I

First, the defendant argues that Judge Damiani improperly refused to disqualify himself from adjudicating the motion to withdraw the Alford plea. We do not agree.

The following additional facts are relevant to the disposition of the defendant’s claim. At the May 31,2005 proceeding, the defendant argued that Judge Damiani should disqualify himself from further proceedings regarding the defendant because Judge Damiani was being asked to rule on the legality of the conditions he had imposed on the defendant. The defendant argued that Judge Damiani’s impartiality might reasonably be questioned if he were to decide the motion to withdraw the plea. Judge Damiani denied the defendant’s motion to disqualify him from further proceedings, stating that “[t]he motion to disqualify goes to the sentencing phase, not to the motion to withdraw.” Furthermore, Judge Damiani explained his reasoning by stating that “[n]o other judge can go into my mind to state those reasons. So, your motion to recuse on that basis is denied.”

Prior to examining the defendant’s claim, we set forth the legal principles that guide our resolution of it. “[Rjeview of the court’s denial of the defendant’s motion to disqualify is subject to the abuse of discretion standard. . . . That standard requires us to indulge every reasonable presumption in favor of the correctness of the court’s determination.” (Citation omitted.) Tracey v. Tracey, 97 Conn. App. 278, 286, 903 A.2d 679 (2006).

The defendant cites both the rules of practice and the Code of Judicial Conduct to support his argument that Judge Damiani should have recused himself. The defendant states that Practice Book § 1-22 (a) provides in relevant part that “[a] judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . . .” Canon 3 (c) (1) of the Code of Judicial Conduct provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding .. . .”

The defendant argued in his brief that there were numerous reasons why Judge Damiani’s impartiality might reasonably be questioned. First, a reasonable person might question a judge’s impartiality when the judge is being asked to question his or her own judgment while “assessing the ability of the defendant to reasonably understand the conditions the court itself largely designed and imposed.” Second, Judge Damiani’s actions suggested partiality in two instances: Judge Damiani raised the defendant’s bond from a promise to appear to $500,000 after learning that the defendant had been arrested in connection with an assault, and Judge Damiani reduced the defendant’s bond, at his request, to $75,000 but required that it be posted in cash only and that it be posted before Judge Damiani.

“Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety • • • that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 50, 830 A.2d 240 (2003).

In the present case, we conclude that none of Judge Damiani’s conduct would lead a reasonable person to question his impartiality concerning the defendant. The defendant cites no relevant case law to support his proposition that a trial court that accepted a defendant’s plea pursuant to a Garvin agreement should not preside over his motion to withdraw the plea. The defendant relies on State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984), for the proposition that a judge’s participation in plea agreement negotiations and then subsequently in the sentencing is improper. In the present case, however, Judge Damiani recused himself from the sentencing of the defendant.

Furthermore, the defendant cites no conduct that would cause a reasonable person to question Judge Damiani’s impartiality. Judge Damiani’s raising the defendant’s bond to $500,000 after the defendant was arrested in connection with an assault while awaiting sentencing for a conviction of robbery in the first degree is not behavior that reflects any bias on the part of the judge. It was reasonable conduct and well within the judge’s discretion. In addition, Judge Damiani’s reducing the bond to $75,000 and then allowing the defendant to post it only in cash after appearing before him was not indicative of bias. If anything, Judge Damiani’s reducing the defendant’s bond to $75,000 was favorable to the defendant. At the April 26, 2005 hearing, Judge Damiani reduced the defendant’s bond to accommodate the defendant’s request to be held at a New Haven facility, thereby making it easier for the defendant’s attorney to have contact with him.

Judge Damiani did not demonstrate any conduct that might lead a reasonable person to question his impartiality. As a result, there was no basis under the Code of Judicial Conduct for Judge Damiani to recuse himself from the hearing on the defendant’s motion to withdraw the Alford plea. Therefore, the court did not abuse its discretion in denying the defendant’s motion to disqualify itself from further proceedings concerning the defendant.

II

Next, the defendant argues that Judge Damiani improperly denied the motion to withdraw the guilty plea after imposing (1) a twenty-four hour house arrest and (2) a “no arrest” condition as part of the Garvin agreement. We disagree.

Prior to examining the defendant’s claim, we set forth the legal principles that guide our review. “A . . . plea, once accepted, may be withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Brooks, 89 Conn. App. 427, 432, 874 A.2d 280 (2005).

A

First, the defendant claims that the court improperly denied his motion to withdraw his guilty plea after imposing a twenty-four hour house arrest condition on him. Specifically, he claims that he did not agree to the twenty-four hour house arrest that resulted. Instead, the defendant argues that he agreed to a curfew, in that there would be certain hours of the day during which he would be allowed to leave his house. We do not agree.

The following additional facts are relevant to our disposition of the defendant’s claim. At the January 19, 2005 proceeding, Judge Damiani discussed in detail the twenty-four house arrest condition that would be imposed on the defendant as part of the plea agreement. The transcript from that proceeding is relevant in part:

“The Court: Now, he’s going to be under house arrest. Is that twenty-four hours a day?
“[Defense Counsel]: That’s what was agreed to. That’s correct.
“The Court: Do you understand that? People could come and see you, you can’t go out and see them.
“[The Defendant]: Can’t leave the house at all?
“The Court: That’s what they agreed to.
“[Defense Counsel]: From what I understood, there’s maybe, a fifty foot radius—
“[The Prosecutor]: Yeah, the—I mean—
“[Defense Counsel]: He asked me if he could do some work on his car in the driveway. I—I—
“The Court: I don’t know if [the monitor is] going to pick that up.
“The Court: What Mr. Clark’s agreeing to is that he’ll wear the bracelet under house arrest; however, he’ll be permitted to go about the property within whatever acceptable radius there is for the—that bracelet.
“[The Prosecutor]: Yes.
“[Defense Counsel]: Okay.
“The Court: But, that you can’t leave the property. If it’s fifty feet, that’s as far as you can go, do you understand that? . .

At the May 31,2005 proceeding, Judge Damiani found that the record was clear that the defendant had agreed to twenty-four hour house arrest at the January 19,2005 proceeding. The court also quoted from the transcript of that proceeding in which the defendant’s attorney acknowledged that the twenty-four hour house arrest had been agreed to. Furthermore, the court noted that the defendant did not raise any objection to the twenty-four hour house arrest condition at the January 19, 2005 proceeding.

In the present case, the court made findings regarding the parties’ interpretation of the plea agreement, which we analyze under the clearly erroneous standard of review. See State v. Olenick, 98 Conn. App. 638, 642, 910 A.2d 1002 (2006), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007). “[T]o the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 642-43.

The defendant argues, first, that he did not have actual or foreseeable knowledge of the nature of the twenty-four hour house arrest condition. The defendant claims that the condition had latent ambiguities, which made it impossible for him to be aware of the actual meaning of the constraints being imposed on him under this “curfew” condition. Furthermore, the defendant claims that the court did not meet its burden of ensuring that he had a full understanding of what the condition of the plea meant. On the basis of our review of the January 19, 2005 proceeding, we conclude that there is ample evidence in the record to support the court’s finding that the defendant was aware of the meaning of the house arrest condition. As the previously cited transcript reveals, the court made it clear to the defendant that the “curfew” being imposed was, in fact, twenty-four hour house arrest. The defendant’s attorney even stated that “[t]hat’s what was agreed to.” Furthermore, the court asked the defendant whether he understood that condition and that people could come to see him but that he could not go out to see them. The defendant asked, “[c]an’t leave the house at all?” The court replied, “[t]hat’s what they agreed to.” The defendant did not object or ask for any further clarification with respect to this condition. We conclude, therefore, that the court’s finding that the defendant was aware of the meaning of house arrest was not clearly erroneous.

The defendant, therefore, did not prove that his plea was made involuntarily or without knowledge of the conditions to which he agreed. Because the defendant did not prove that any of the bases set out in Practice Book § 39-27 for withdrawing a guilty plea existed, the court did not abuse its discretion in denying his motion to withdraw his guilty plea with respect to the house arrest condition.

B

Next, the defendant claims that the court improperly denied his motion to withdraw his guilty plea after imposing a “no arrest” condition. We do not agree.

At the May 31,2005 proceeding, the defendant moved to withdraw his Alford plea in part because Judge Damiani had imposed an illegal “no arrest” condition as part of the Garvin plea agreement.

This issue is controlled by our Supreme Court’s decision in State v. Stevens, 278 Conn. 1,895 A.2d 771 (2006). In Stevens, our Supreme Court held that the “no arrest” condition imposed on the defendant as part of her Garvin plea agreement was valid, stating: “Under the facts of the present case, therefore, we conclude that the defendant’s arrest, supported by probable cause, in violation of her Garvin agreement, was a proper basis for the enhanced sentence.” State v. Stevens, supra, 13.

In the present case, Judge Damiani imposed a condition that is legal pursuant to Stevens. Judge Damiani stated that if the court found probable cause to believe that the defendant had committed a new offense, then it could take that into consideration in imposing sentence. This “no arrest” condition imposed by Judge Damiani as part of the defendant’s Garvin agreement was well within the description of the type of condition sanctioned by our Supreme Court in Stevens. Therefore, the court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea.

Ill

Finally, the defendant argues that Judge Gold improperly used probable cause, instead of preponderance of the evidence, as the standard to determine whether he breached the Garvin agreement. We do not agree with the defendant.

Prior to examining the claim, we set forth the standard of review. “When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Wieselman v. Hoeniger, 103 Conn. App. 591, 595-96, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007).

The following additional facts are relevant to our disposition of the defendant’s claim. At the January 19, 2005 proceeding before Judge Damiani, the court set forth the burden of proof for the violation of the conditions of the Garvin agreement as “probable cause.” The court stated, in relevant part: “You’d have a hearing, put those police, whoever is the complainant, on the [witness] stand, and if, in fact, there’s probable cause that you were the one who committed the—the new offense, that’s a factor I take into account.” At the July 14, 2005 proceeding, Judge Gold discussed the standard of review to be used in determining whether the defendant had violated the Garvin agreement. The court stated, in relevant part: “I suppose it is possible . . . that even a higher standard will someday [be] deemed appropriate by a higher court. For present purposes, however, it is ultimately unnecessary for me to determine whether probable cause is appropriate or whether some higher burden is appropriate. Because having considered the evidence, even if this court were to require the state to prove a breach beyond a reasonable doubt, I would conclude that the state’s evidence here has satisfied even this exacting standard.”

The defendant argued, citing Justice Norcott’s concurring opinion in Stevens, that “a more appropriate, and constitutionally required, burden of proof for a breach of a Garvin plea agreement is preponderance of the evidence.” Furthermore, the defendant argued, again citing Justice Norcott’s concurring opinion in Stevens, that “[t]here is [a] developing body of federal constitutional jurisprudence [that] establishes that breach of a condition on a conditional binding plea agreement, referred to in Connecticut as a Garvin plea agreement, must be proven by preponderance of the evidence.” Therefore, the defendant argued, the probable cause burden of proof dictated by Judge Damiani and used by Judge Gold is unconstitutional. The defendant argued that Judge Gold’s finding that the defendant had violated the conditions of the Garvin agreement under the “beyond a reasonable doubt” standard was merely a proposal of a “hypothetical or advisory decision as to how the court would rule under a different set of facts absent the plea agreement . . . .” The defendant, therefore, insists that the court made its findings under the probable cause standard.

We are not persuaded by the defendant’s argument. The defendant’s argument that Judge Gold used the probable cause standard to determine whether he breached the Garvin agreement is not supported by the record. Out of concern for the fact that the burden of proof regarding a Garvin agreement might one day be higher than the minimum indicia of reliability standard required prior to and at the time, the court clearly stated: “[I]t is ultimately unnecessary for me to determine whether probable cause is appropriate or whether some higher burden is appropriate. Because having considered the evidence, even if this court were to require the state to prove a breach beyond a reasonable doubt, I would conclude that the state’s evidence here has satisfied even this exacting standard.” (Emphasis added.) Therefore, even if the probable cause standard was improper, the court did not violate the defendant’s right to due process by utilizing the highest standard of proof of beyond a reasonable doubt. As such, we conclude that Judge Gold applied a proper standard of proof in determining whether the defendant had breached his Garvin agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, [supra], 400 U.S. 25 ... a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 736 n.1, 930 A.2d 644 (2007).

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement. See State v. Garvin, [242 Conn. 296, 300-302, 699 A.2d 921 (1997)].” State v. Wheatland, 93 Conn. App. 232, 235 n.3, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).

       The court referred to this twenty-four hour house arrest condition as a “curfew,” but we refer to it as twenty-four hour house arrest.

       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 relied on State v. Stevens, 85 Conn. App. 473, 857 A.2d 972 (2004), rev’d, 278 Conn. 1, 895 A.2d 771 (2006), which prohibits “no arrest” conditions because they are conditions over which the defendant has no control. The defendant argued in his brief that the fact that this decision has been overturned by our Supreme Court “is of no importance” because the law at the time that the defendant entered the plea was that the “no arrest” condition violated his right to due process. We are not persuaded by this argument. The opinion rendered by this court in Stevens was deemed incorrect by our Supreme Court in State v. Stevens, 278 Conn. 1,895 A.2d 771 (2006). Therefore, we cannot fault the trial court for following good law.

       “As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. ... As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” (Citation omitted; internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 650, 858 A.2d 767 (2004).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JEFFREY SMITH
    (AC 28708)
    Bishop, Gruendel and Harper, Js.

      Argued February 11
    officially released May 20, 2008

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Michael L. Regan, state’s attorney, with whom, on the brief, was Peter A. McShane, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Jeffrey Smith, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), felony murder in violation of General Statutes § 53a-54c, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). The defendant claims that the trial court improperly admitted evidence of his invocation of his right to remain silent after he had been informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We affirm the judgment of the trial court.

This case developed from the police investigation of the defendant’s suspected involvement in a murder. On February 10, 1999, two police officers arrived at the defendant’s apartment to interview him. The defendant invited them in but denied any involvement in the murder. During the interview, the officers did not inform the defendant of his Miranda rights. On February 18, 1999, the same officers returned to the defendant’s apartment with a search and seizure warrant for the defendant’s palm prints, as prints were recovered from the vehicle that the victim was purported to have been driving on the night of his murder. The defendant accompanied the police to the police station and, after his prints were taken, he agreed to be interviewed again. On this occasion, he was advised of his Miranda rights and waived them in writing. Again, the defendant denied any involvement in the murder. On June 18, 1999, the officers once again returned to the defendant’s apartment, this time with a warrant for his arrest for murder. The defendant was orally informed of his Miranda rights in conjunction with his arrest at his residence. Once he arrived at the police station, he was again informed of his Miranda rights, this time orally and in writing, after which, he agreed to waive those rights. Detective James McGlynn of the state police, one of the officers present during the ensuing interrogation, testified at trial that during the interview, “[the defendant] continued his denial of any involvement in the case. He said that he did not want to talk to the police, that he wouldn’t talk to the police [about] what he knew about the murder. He would only talk to the [state’s] attorney because the [state’s attorney] is the only person that can give him a deal.” There was no evidence at trial of any further dialogue between the police and the defendant in conjunction with this interview.

At trial, the defendant filed a motion to suppress the testimony of McGlynn concerning the defendant’s statement. At the hearing on the motion, the defendant argued that the testimony was violative of his constitutional rights to counsel and against self-incrimination and that it was ultimately irrelevant to the material issues of the case. The court denied the motion, finding that the defendant had not asserted his fifth amendment right to remain silent. In its oral decision on the motion, the court commented that although a defendant may assert his right to remain silent at any time, here, “it’s not that the defendant chose to remain silent, it’s that he decided if he was going to cut a deal, so to speak, the person that he needed to talk to was the [state’s attorney].” Furthermore, the court found that a jury could determine that the June 18, 1999 statement was indicative of the defendant’s “[need] to cut a deal,” and, therefore, it was probative of his guilt. We agree with the court.

Ultimately, the defendant was convicted of manslaughter in the first degree, felony murder, two counts of kidnapping in the first degree and robbery in the first degree, and acquitted of capital felony and murder. At his sentencing, the defendant filed a motion for a new trial, claiming in part that he was “deprived of his rights against self-incrimination by the admission of an alleged custodial statement that he would speak only to a [state’s] attorney.” The court denied the motion and sentenced the defendant to a total effective term of eighty-five years imprisonment. This appeal followed.

The defendant claims that the court improperly allowed McGlynn to testify regarding the statement made on June 18, 1999. Specifically, the defendant claims that the statement was a post-Miranda invocation of his right to remain silent and that it was improperly admitted in contravention of his fifth and fourteenth amendment rights against seb-incrimination and to due process.

At the outset, we set forth our standard of review for the defendant’s claim. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. 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, 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 . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

Any inquiry into the admissibility of a statement obtained while a defendant is in custody must, of course, begin with Miranda v. Arizona, supra, 384 U.S. 444. In that case, the United States Supreme Court held that the fifth and fourteenth amendments’ prohibition against compelled sell-incrimination requires that a suspect in police custody be informed specifically of his or her right to remain silent and to have an attorney present before being questioned. Id., 479. The court further held that “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease”; id., 473-74; and that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id., 474. Furthermore, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., 475.

Building on the protections provided in Miranda, the United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), that it is a violation of a defendant’s right to due process to use his silence, following receipt of Miranda warnings, for impeachment purposes. The holding in Doyle is grounded in two bases—first, that silence in the wake of a Miranda warning is “insolubly ambiguous” and consequently of little probative value, and, second, that a Miranda warning carries an implicit assurance that silence will carry no penalty. Id., 617-18. Furthermore, the protected silence is not limited to muteness and “includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” Wainwright v. Greenfield, 474 U.S. 284, 295 n.13,106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); State v. Cabral, 275 Conn. 514, 524, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005).

The defendant argues that his June 18,1999 statement that he did not want to talk with the police and would talk only with the state’s attorney because he, alone, could give him a deal, was an invocation of his right to remain silent and is, therefore, protected by Doyle and its progeny. Thus, he claims, the statement should not have been admitted. The defendant argues that the statement was at most a conditional waiver of the right to remain silent, and, in the face of this ambiguity, the court should have construed its interpretation in favor of his right to remain silent.

There is no particular prescription for behavior or words that amounts to an expression of a defendant’s right to remain silent. Voluntary statements made to the police during a post-Miranda interrogation are admissible as long as the record contains no evidence of threats, promises or coercive or deceptive measures by the police. State v. Williams, 65 Conn. App. 59, 74-76, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). Additionally, a defendant does not have the right to remain “selectively silent,” and the refusal of a defendant to answer a particular question during a custodial interrogation is not an invocation of the right to remain silent. State v. Talton, 197 Conn. 280, 295-96, 497 A.2d 35 (1985); State v. Comancho, 92 Conn. App. 271, 281, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A. 2d 1 (2006).

As noted, the defendant was informed properly of his rights pursuant to Miranda before the officers began to interview him on June 18, 1999. The defendant initialed and signed a waiver of each of his rights prior to questioning. When asked about the murder, he maintained that he was not involved. There is no evidence in the record that the police acted in a coercive or threatening manner during questioning. After repeatedly asserting that he was not involved, the defendant indicated that he did not want to talk to the police and immediately clarified that statement by stating that he would speak only to the state’s attorney, who could give him “a deal.” This statement was not in response to any question posed by the police after the defendant stated that he did not want to talk with them. It was unprovoked. In this light, the defendant’s statement that he did not want to talk with the police reasonably could be seen as conditional. Instead of simply refusing to speak to the police, the defendant conditioned his silence, stating a preference to speak to the state’s attorney. Therefore, we agree with the court that the defendant did not invoke his right to remain silent by this statement but, rather, was expressing a choice regarding with whom he would prefer to speak. Consequently, the proscription set forth in Doyle is inapplicable. See Doyle v. Ohio, supra, 426 U.S. 619-20.

The defendant cites State v. Plourde, 208 Conn. 455, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989), in support of his contention that his statement was an assertion of his right to remain silent, at least until he spoke with the state’s attorney and decided to cooperate. The defendant in Plourde, however, consistently refused to waive his rights and, when he spoke, specifically conditioned any statement or deal on his ability to speak with his attorney first. Id., 464-65. The facts at hand are readily distinguishable from Plourde. In this case, the defendant repeatedly waived his rights knowingly and voluntarily. Furthermore, he did not request the assistance of counsel; rather, he requested the opportunity to speak with someone who might make speaking worth his while.

As the statement was not an invocation of the defendant’s right to remain silent, the next level of analysis is whether the statement was relevant to a material issue in the case. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. ... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 261-62, 796 A.2d 1176 (2002). Here the statement is one that reasonably could be viewed as inculpatory. It follows, therefore, that the court acted properly in admitting the statement.

The judgment is affirmed.

In this opinion the other judges concurred.


author: BEACH, J.

text:
    MIGUEL HERNANDEZ v. COMMISSIONER OF CORRECTION
    (AC 28431)
    Bishop, Harper and Beach, Js.
    Submitted on briefs January 4
    officially released May 20, 2008

      Christopher M. Neary, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, former state’s attorney, Jessica Probolus, special deputy assistant state’s attorney, and Erika L. Brookman, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Miguel Hernandez, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying the petition for certification and (2) improperly rejected his claim that his trial counsel provided ineffective assistance. We dismiss the appeal.

The petitioner’s conviction arose out of the following factual scenario, as gathered from information in the court’s file and also available to the petitioner’s trial counsel. In the early morning hours of January 10,1998, the petitioner and several of his friends, including Luis Valdes, went to an after-hours club on South Whitney Street in Hartford. The victim, Marcel Carrion, and several of his associates arrived shortly afterward. One of Carrion’s companions was Luis Feliciano. Both the petitioner and Valdes had prior disagreements with Feliciano. The petitioner’s group left the club but returned shortly thereafter to wait outside for Feliciano to emerge. When he did, the petitioner shot at Feliciano with a pistol. He missed Feliciano but fatally wounded Carrion.

In October, 1999, the state charged the petitioner with murder in violation of General Statutes § 53a-54a; conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a; criminal use of a firearm in violation of General Statutes § 53a-216 (a); carrying a pistol without a permit in violation of General Statutes § 29-35; and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On November 9,1999, the state offered the petitioner the opportunity to plead guilty to manslaughter only, with a recommended sentence of not less than twenty-five or more than forty years. On that same day, the petitioner pleaded guilty to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). On January 14, 2000, the petitioner was sentenced to a term of thirty years incarceration. The petitioner did not file a direct appeal from the judgment of conviction.

On March 17, 2006, the petitioner filed an amended petition for a writ of habeas corpus, alleging that his conviction should be set aside due to the ineffective assistance of his trial counsel, attorneys William Gerace and Paula Waite. A habeas trial was held on September 8, 2006, at which the petitioner, Gerace and Waite testified before the court.

The court found the following facts. During the criminal proceedings that led to his guilty plea, the petitioner was represented by Gerace and Waite. On November 9, 1999, Waite was participating in jury selection and received a renewed plea offer from the state. Waite found Gerace, who was in the courthouse on another matter and both “met with the petitioner in a conference room at the courthouse and thoroughly discussed the state’s offer.” Gerace went to his office and wrote a two page letter to the petitioner, which presented the offer, the exposure if convicted at trial, Gerace’s opinion of the strength of the case and Gerace’s recommendation that the petitioner accept the offer. In its memorandum of decision, the court also outlined the evidence that the state presumably would have introduced had the criminal trial proceeded, including several witness statements that identified the petitioner as the shooter and a statement by the petitioner himself admitting that he had fired some gunshots that evening at the club.

The court also found that between the time of the plea and the time of sentencing, the petitioner had written a letter to the sentencing court, asking to withdraw his plea. In the letter, the petitioner claimed that pressure by his attorneys and family had caused him to plead guilty, that someone else had done the shooting and that his attorney had stated that he would receive fifteen years imprisonment as a sentence. At sentencing, Ger-ace stated that because of the strength of the state’s case, he had advised the petitioner that it was not in his interest to withdraw the plea. The sentencing court asked the petitioner if he was pursuing the request to withdraw the plea, and the petitioner, with some equivocation, withdrew the motion to withdraw the plea by stating that he would rely on his attorney’s advice.

“Before we may reach the merits of the petitioner’s claim that the court improperly decided the issues raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further .... Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).” (Internal quotation marks omitted.) Solman v. Commissioner of Correction, 99 Conn. App. 640, 643, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Sadler v. Commissioner of Correction, supra, 703-704; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On the facts before us, we cannot say that the habeas court abused its discretion in denying certification to appeal.

The petitioner first claims that his trial counsel provided ineffective assistance by failing to investigate adequately witness leads and physical evidence at the scene of the crime. As to the claim that counsel failed to pursue witness leads, the court found that “Gerace certainly cannot be faulted for an investigation that, although reasonably executed, yielded unfavorable results for the petitioner.” Regarding counsel's alleged failure to investigate the scene of the crime, the court concluded that the “lack of physical evidence linking the petitioner to the scene of the crime would take on less importance given that there was other evidence placing the petitioner at the scene and in possession of a handgun.” The petitioner himself admitted that he was at the crime scene and fired gunshots. After a thorough review of the record, we conclude that the court did not abuse its discretion in denying the petition for certification as to the claim of ineffective investigation.

The petitioner next claims that his trial counsel provided ineffective assistance in his advice to the petitioner concerning the petitioner’s acceptance of the state’s plea offer. Despite the argument by the respondent, the commissioner of correction, that the petitioner was in procedural default as to this claim, we need not reach the issue of procedural default. On the merits, the habeas court noted that “[t]here is absolutely no evidence that counsel, either by themselves or with the help of the petitioner’s family, overbore the petitioner’s will and forced him to plead guilty.” The court further noted that both Gerace and Waite testified at the habeas trial that the petitioner had a full understanding of the plea agreement and that the “terms of the agreement and the substance of counsels’ conversation with the petitioner were memorialized in a letter by Gerace and given to the petitioner at the plea hearing.” Our review of the record reveals that the petitioner did not present any credible evidence demonstrating that his trial counsel’s representation fell below an objective standard of reasonableness.

In light of the foregoing, we conclude that the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       Although the court found that the petitioner had procedurally defaulted on his claim as to the state’s plea offer, it nonetheless proceeded to decide the claim on its merits. Cf. Johnson v. Commissioner of Correction, 285 Conn. 556, 941 A.2d 248 (2008).