text:
    STATE OF CONNECTICUT v. ARTHUR MOLLO III
    (AC 19324)
    Foti, Mihalakos and Daly, Js.
    Argued February 28
    officially released May 22, 2001

      Monte P. Radler, supervisory assistant public defender, with whom, on the brief, was Christian Joyel Haave, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, was Eugene Callahan, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Arthur Mollo III, appeals from the order of the trial court dismissing his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that the court improperly concluded that it lacked jurisdiction to consider the motion. We affirm the judgment of the trial court.

As a result of a plea bargain, the defendant, on August 31,1990, entered pleas of guilty to burglary in the second degree in violation of General Statutes § 53a-102 and disorderly conduct in violation of General Statutes § 53a-182. The court, Katz, J., sentenced the defendant to a total effective term of ten years incarceration, execution suspended, with five years probation. Thereafter, the defendant was convicted in federal court on a firearms offense. Under a “three strikes” statute, the application of which included his Connecticut felony conviction for burglary in the second degree, he received an “enhanced” federal sentence of seventy-eight months. The defendant finished serving his Connecticut sentence upon his completion of probation in 1995. On July 8, 1998, the defendant filed a motion pursuant to Practice Book § 43-22, formerly § 935, to vacate his 1990 burglary conviction because it constituted an illegal disposition. The defendant claimed that a latent defect existed as to the factual basis for his guilty plea to burglary in the second degree in that § 53a-102 requires entry or remaining in a “dwelling,” whereas he was in a common hallway not under the exclusive control of the victims. By his motion, the defendant sought to have the court vacate the burglary conviction and substitute a conviction for criminal trespass in the first degree in violation of General Statutes § 53a-107, a misdemeanor, in its place. In his motion, the defendant did not seek to withdraw his guilty plea, but rather to substitute a lesser misdemeanor disposition as a conviction on the ground that the plea lacked a factual basis. The court, Comerford, J., dismissed the defendant’s motion on the ground that Practice Book § 43-22 did not authorize the court to vacate the conviction. The court determined that it lacked jurisdiction to entertain the motion.

“The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988).” State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). Practice Book § 43-22 provides such authority and permits the trial court to correct an illegal sentence at any time. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).

We recognize the principle that a sentence imposed within statutory limits is generally not subject to review. State v. McNellis, 15 Conn. App. 416, 445, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). “A judgment of conviction must conform to the crime with which the defendant was charged, and the sentence imposed must conform to that crime.” State v. Gamble, 27 Conn. App. 1, 11, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). In this case, the judgment of conviction, following the plea of guilty, conformed to the crime charged, burglary in the second degree. Accordingly, the defendant’s conviction was neither illegal nor subject to challenge pursuant to Practice Book § 43-22. Here, the sentence imposed was, without dispute, facially valid. An illegal sentence is one that exceeds the maximum statutory limits, does not satisfy the mandatory minimum, violates double jeopardy rights, is ambiguous or is internally contradictory. See State v. Daniels, supra, 207 Conn. 387; State v. Dennis, 30 Conn. App. 416, 423 n.9, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993).

The defendant does not claim that the court imposed the sentence in an illegal manner but, rather, that the concept of “illegal sentence” under Practice Book § 43-22 includes any sentence based on a “voidable” conviction. We do not agree.

Assuming arguendo that the defendant’s conviction could somehow be considered “voidable” under the circumstances of this case, we view the relief allowed by Practice Book § 43-22 to require, as a precondition, a valid conviction. The purpose of Practice Book § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition, or one imposed or made in an illegal manner.

The defendant’s reliance on Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984), and State v. Raucci, 21 Conn. App. 557, 559, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), is misplaced. We do not view either case as standing for the proposition that Practice Book § 43-22 may be an avenue to attack the validity of a conviction. The issue in Raucci addressed whether “the trial court when correcting an illegal sentence pursuant to Practice Book § 935 [now § 43-22] after a multicount conviction has been partially set aside, may restructure the entire sentencing plan in order to effectuate its original sentencing intent.” (Emphasis added; internal quotation marks omitted.) State v.Dennis, supra, 30 Conn. App. 427 n.11. In Myers, the defendant sought to place the burden of proving competency, at the time of his guilty plea, on the state. In a footnote, our Supreme Court noted that the defendant did not seek a psychiatric examination or move to withdraw his plea or “to correct an illegal sentence. Practice Book § 935 [now § 43-22].” Myers v. Manson, supra, 387 n.6. We do not agree that this is an indication that Practice Book § 43-22 can be used to attack the validity of a conviction.

A rule of practice may not confer jurisdiction on the trial court. Simms v. Warden, 229 Conn. 178, 184, 640 A.2d 601 (1994). Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, Practice Book § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and execution of it has begun. See Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Further, we must recognize society’s interest in the finality of judgments; see Summerville v. Warden, 229 Conn. 397, 428, 641 A.2d 1356 (1994); and the concept of inspiring confidence in the integrity of our procedures. We conclude that the court properly determined that it lacked jurisdiction over the defendant’s case and, therefore, dismissed his motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record discloses a scheduled release date of October 15, 2002.

       At the time of canvassing, the defendant, who was represented by the same counsel as on appeal, indicated to the court that he had “[p]lenty” of time to speak to counsel about the case, he was satisfied with the advice of counsel, counsel had explained to him the essential elements of burglary in the second degree and that he had no questions about that offense or the offense of disorderly conduct. The defendant also acknowledged that he understood that once the court accepted his plea, he would be unable to withdraw it “except in the most extraordinary circumstances.” The court found that a factual basis existed for both pleas and as part of the plea bargain terminated two probations that the defendant had been on.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       A lesser offense included within burglary in the second degree is burglary in the third degree in violation of General Statutes § 53a-103, a felony that requires unlawful entry or remaining in a “building” rather than in a “dwelling.” The state argues that vacating the conviction for burglary in the second degree might, at best, result in a conviction for burglary in the third degree, which also is a felony.

       See footnote 4.

       The defendant concedes that he may not withdraw his guilly plea pursuant to Practice Book § 39-27 (5) on the ground that it was without a factual basis because Practice Book § 39-26 precludes the withdrawal of a guilty plea after the conclusion of sentencing.

       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.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    IN RE CANDACE H.

    (AC 20663)
    Landau, Mihalakos and Daly, Js.
    Argued January 25
    officially released May 22, 2001

      Carolyn C. Mihalek, for the appellant (respondent mother).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Sharon Wicks Domfeld, for the appellees (inter-venors).

       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

MIHALAKOS, J.

The respondent mother appeals from the judgment of the trial court denying her motion for visitation with her minor child. On appeal, the respondent claims that the court (1) abused its discretion in denying her motion for visitation and (2) imper-missibly delegated to the department of children and families (department) and to the child’s paternal aunt and uncle the responsibility of determining, in the future, whether visitation by the respondent is in the child’s best interest. We conclude that the court properly denied the respondent’s motion for visitation, but impermissibly delegated to the department and to the aunt and uncle its independent obligation to determine and further the child’s best interest.

The following facts and procedural history are relevant to the disposition of this appeal. On May 29, 1998, the respondent gave birth to a daughter. Shortly thereafter, the respondent voluntarily placed the child in a foster home associated with Lutheran Social Services of New England (social services agency), a private, nonprofit social service agency. She asked the social services agency to assist her in placing the child up for adoption.

On June 12, 1998, the respondent informed the social services agency that she no longer wanted to put the child up for adoption. Three days later, however, the respondent reconsidered, and the social services agency continued to provide a foster home for the child. She later reconsidered again. On July 16, 1998, the respondent took the child home.

Only eight days later, on July 24, 1998, the respondent became overwhelmed by the responsibility of caring for the child and voluntarily placed her in the care of the department. As the end of the period of voluntary placement was nearing, the commissioner of children and families (commissioner) applied for an order of temporary custody pursuant to General Statutes (Rev. to 1997) § 46b-129 (a) and Practice Book § 32-6 (a).3 On November 24, 1998, the court granted the commissioner’s application. The trial court renewed the order of temporary custody on December 3, 1998.

On February 10, 1999, a paternity test revealed that the respondent’s ex-husband was the child’s father. On February 22, 1999, the department placed the child in the care of her paternal aunt and uncle. On December 1, 1999, the commissioner moved for review of its permanency plan for the child pursuant to General Statutes § 46b-129 (k) (l). As articulated in its motion, the commissioner intended to petition for the termination of parental rights with respect to the child to allow the child’s paternal aunt and uncle to adopt her.

On January 24,2000, pursuant to an agreement among the respondent, the father, and the aunt and uncle, the court adjudicated the child a neglected child and committed her to the custody of the commissioner for twelve months, as permitted by General Statutes (Rev. to 1997) § 46b-129 (d). Ten days later, on February 3, 2000, the respondent filed a motion for an order of visitation pursuant to General Statutes § 46b-59 and Practice Book (2000) § 25-4.

On February 10, 2000, at the conclusion of a two day hearing, the court approved the commissioner’s permanency plan and denied the respondent’s motion for visitation. On March 30, 2000, the respondent appealed, challenging the court’s approval of the permanency plan and its denial of her motion for visitation.

On June 2, 2000, the commissioner filed a motion to dismiss the appeal for, inter alia, the lack of a final judgment. On July 13, 2000, this court concluded that the approval of a permanency plan was not a final judgment and, accordingly, granted the motion to dismiss the appeal as to the respondent’s challenge to the permanency plan that the trial court had approved for the child. This court denied, however, the motion to dismiss the challenge to the visitation order, concluding that a visitation order entered in the course of a termination proceeding was a final judgment for the purposes of appellate review. Additional facts and procedural history will be set forth as necessary.

I

The respondent first claims that the court abused its discretion in denying her motion for visitation. We disagree.

The guiding principle in determining whether visitation is proper is the best interest of the child. “In making or modifying any order with respect to custody or visitation, the court shall ... be guided by the best interests of the child . . . .” General Statutes § 46b-56 (b) (l). “The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. . . . The trial court is vested with broad discretion in determining what is in the child’s best interests.” (Citation omitted.) Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Accordingly, it is only in rare instances that the trial court’s decision will be disturbed.” (Citation omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998). With this standard in mind, we turn to the respondent’s claim.

The following additional facts and procedural history are relevant to our disposition of this claim. The court requested that Carol Swenson, a psychologist, evaluate the respondent’s level of psychological functioning and her capacity to care for and interact with the child. The court also requested that Swenson conduct a similar evaluation of the father, and evaluate the nature of the relationship between the child and her potential adult caregivers, her aunt and uncle. On July 8,1999, Swenson interviewed and evaluated the respondent, and, on July 6,1999, she interviewed and evaluated the father. Swen-son also observed the child interact with her aunt and uncle.

On August 16, 1999, the court received a written report from Swenson, which included the results of her evaluations of the respondent and the father. In her report, Swenson stated: “It is my recommendation that [the respondent’s] and [the father’s] parental rights be terminated and that [the aunt and uncle] adopt [the child]. It is recommended that this be an open adoption but that [the child’s] contact with [the respondent] be quite limited during the early years as [the respondent’s] behavior is odd and inconsistently appropriate and could easily be distressing and confusing for a young child. Visits, when they occur, should always be supervised and of limited duration. ... If the visits of either of the biological parents [become] a source of distress or concern to [the child] or the [aunt and uncle], it is recommended that visits cease until she is old enough to have a clear understanding of the limitations of her biological mother.”

During the hearing on the motion for visitation, Swen-son testified consistently with her report, which the court admitted into evidence. Carolyn Powell, a marriage and family therapy intern at Southern Connecticut State University, and Joseph Ovide, a social worker employed at the department, also testified at the hearing. Powell testified that she had facilitated and supervised two visits between the respondent and the child. She testified that the visits occurred on January 13 and 27, 2000. Regarding the first visit, Powell testified as follows: “We brought [the child] in the room with the [respondent] and she continued to cry. Every effort the [respondent] attempted to soothe and pacify her was not successful; she cried the whole time. At which point, after about twenty-five minutes, I said we had to cancel the visit because the child would not calm down.”

Regarding the second visit, Powell testified as follows: “When the [respondent] came, I asked the [uncle] ... to leave the room so the [respondent] can have the interaction with the child. And [the child] attempted to follow [the uncle] out of the room. . . . [The child] started crying and chasing after [the uncle] and she kept crying the whole time we tried to keep her in the room. She would just not calm down, even after the [respondent] attempted to calm her. . . .

“[The respondent] picked [the child] up. [The respondent] held her close. She patted [the child] on the back and walked around the room with her, and [the child] still kept screaming and pointing towards the door. . . . I decided that the time was up for — she was crying so hard that I decided it was uncomfortable for her and we should end the visit. At that point, my supervisor came in the room and said she heard the child crying down the hallway. And [the uncle] had also heard the child crying and said we should end the visit. So, the visit was ended.”

Ovide testified that he was a case manager for the department and that he had supervised visits between the respondent and the child. Regarding the visits, he testified as follows: “[The respondent] was a bit withdrawn from the child at times. The child would need to venture forth and play with the toys and that would annoy — well, that would seem to bother the [respondent] at times. She would try to get the child’s attention, but, at that point, the child would either cry or just resist tremendously and tend to gravitate towards the person she knew most, which was me. So, there really wasn’t a connection at times.” Ovide also testified that “[the respondent] would consistently call and cancel visits because she wasn’t comfortable with the situation or the people around the child.”

At the conclusion of the hearing, the court found that (1) the respondent had not been consistent in maintaining visitation with the child, (2) the visits that had taken place had not gone well, (3) the child had become attached to her aunt and uncle, (4) the respondent had not related naturally or interacted appropriately with the child and (5) the respondent’s visits had been upsetting to the child. On the basis of these findings, the court concluded that visitation by the respondent was not in the child’s best interest.

We have reviewed the record, including the evidence previously discussed, and we conclude that the court’s factual findings are reasonable and that the court reasonably concluded that continued visitation was not in the child’s best interest. Accordingly, we conclude that the court did not abuse its broad discretion in declining to order visitation.

II

The respondent also claims that the court impermissi-bly delegated to the department and to the aunt and uncle the responsibility of determining, in the future, whether visitation by the respondent is in the best interest of the child. We agree.

The following additional facts are relevant to our disposition of this claim. On February 10, 2000, the court rendered an oral decision denying the respondent’s motion for visitation. In so doing, the court stated in relevant part: “[C]ourt-ordered visitation with the [respondent] does not make much sense to me. . . . As for the [respondent], she has not been consistent in maintaining visitation. The visits that have taken place have not gone particularly well, perhaps because [the child] is so young and has become attached to her [aunt and uncle], or perhaps because the [respondent] [did] not relate that naturally or interact appropriately with [the child]. The visits are in fact quite upsetting to [the child].

“I therefore find that court-ordered visitation is not in [the child’s] best interest. Based on that, I deny the [respondent’s] motion for visitation and decline to order any visitation. This order, of course, or absence of an order, does not mean that visitation may not take place or should not take place. [The department] may decide to permit it if it concludes that it is in [the child's] best interest. . . .

“In short, I trust and believe that [the aunt and uncle], who have demonstrated their ability to care for [the child], will use discretion and will take an enlightened approach in deciding this issue. I therefore leave it to them and [the department] to decide.” (Emphasis added.)

As stated in part I of this opinion, “[t]he standard for reviewing a visitation order is whether the trial court abused its discretion in making that order.” Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981). “In exercising that discretion the court considers the rights and wishes of the parents and may hear the recommendations of professionals in the family relations field, but the court must ultimately be controlled by the welfare of the particular child.” Id. Furthermore, the court has an “independent obligation for the welfare of the children before it, an obligation that has deep roots in our jurisprudence.”Newman v. Newman, 235 Conn. 82, 98, 663 A.2d 980 (1995). In the present case, the court’s order empowered the department and the aunt and uncle to determine, in the future, whether the child’s best interest would be served by permitting the respondent to visit her. In so doing, the court impermissibly delegated its “independent obligation” to determine and further the child’s best interest. See id.; cf. Weinstein v. Weinstein, 18 Conn. App. 622, 629, 561 A.2d 443 (1989) (orders empowering counsel for minor children to select evening when plaintiff could see children for dinner was improper delegation of judicial function). Accordingly, we conclude that the trial court abused its legal discretion. See Simmons v. Simmons, supra, 244 Conn. 175.

The judgment is affirmed as to the denial of the respondent’s motion for visitation. The judgment is reversed as to the order empowering the department and the aunt and uncle to determine, in the future, whether visits by the respondent are in the child’s best interest, and the case is remanded with direction to vacate that order.

In this opinion the other judges concurred.

       Only the respondent mother is involved in this appeal. We refer in this opinion to her as the respondent.

       General Statutes (Rev. to 1997) § 46b-129 (a) provides: “Any selectman, town manager, or town, city, or borough welfare department, any probation officer, the Connecticut Humane Society, or the Commissioner of Social Services, the Commissioner of Children and Families or any child-caring institution or agency approved by the Commissioner of Children and Families, a child or his representative or attorney or a foster parent of a child, having information that a child or youth is neglected, uncared-for or dependent, may file with the Superior Court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent, within the meaning of section 46b-120, the name, date of birth, sex, and residence of the child or youth, the name and residence of his parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter. Upon the filing of such a petition, except as otherwise provided in subsection (e) of section 17a-112, the court shall cause a summons to be issued requiring the parent or parents or the guardian of the child or youth to appear in court at the time and place named, which summons shall be served not less than fourteen days before the date of the hearing in the manner prescribed by section 46b-128, and said court shall further give notice to the petitioner and to the Commissioner of Children and Families of the time and place when the petition is to be heard not less than fourteen days prior to the hearing in question.”

       Practice Book § 32-6 (a) provides: “Upon proper application therefor, an order of temporary custody may be issued ex parte by the judicial authority at the time of the filing of the petition or subsequent thereto. The application must be supported by a sworn statement alleging such facts as would support a finding of probable cause to believe that the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the surroundings and that immediate removal from such surroundings is necessary to ensure the child’s safety.”

       General Statutes § 46b-129 (k) (1) provides: “Ten months after the adjudication of neglect of the child or youth or twelve months after the vesting of temporary care and custody pursuant to subsection (b) of this section, whichever is earlier, the commissioner shall file a motion for review of a permanency plan and to extend or revoke the commitment. Ten months after a permanency plan has been approved by the court pursuant to this subsection, unless the court has approved placement in long-term foster care with an identified person or an independent living program, or the commissioner has filed a petition for termination of parental rights or motion to transfer guardianship, the commissioner shall file a motion for review of the permanency plan to extend or revoke the commitment. A hearing on any such motion shall be held within sixty days of the filing. The court shall provide notice to the child or youth, and his parent or guardian of the time and place of the court hearing on any such motion not less than fourteen days prior to such hearing.”

       General Statutes (Rev. to 1997) § 46b-129 (d) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families for a maximum period of twelve months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof maybe revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person or persons found to be suitable and worthy of such responsibility by the court. . . .”

       General Statutes § 46b-59 provides: “The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.”

       Practice Book (2000) § 25-4 provides: “Every application in an action for visitation of a minor child, other than actions for dissolution of marriage, legal separation or annulment, shall state the name and date of birth of such minor child or children, the names of the parents and legal guardian of such minor child or children, and the facts necessary to give the court jurisdiction. The application shall comply with Section 25-5. Such application shall be commenced by an order to show cause. Upon presentation of the application, the judicial authority shall cause an order to be issued requiring the adverse party or parties to appear on a day certain and show cause, if any there be, why the relief requested in the application should not be granted. The application and order shall be served on the adverse party not less than twelve days before the date of the hearing, which shall not be held more than thirty days from the filing of the application.”

       “With the exception of certain statutory rights of appeal that are not relevant here, appellate jurisdiction is limited to appeals from final judgments.” Madigan v. Madigan, 224 Conn. 749, 752, 620 A.2d 1276 (1993), citing General Statutes §§ 51-197a, 51-199 and 52-263; Practice Book § 4000, now § 61-1.

       General Statutes § 46b-56 (b) provides: “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child, and (2) consider whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.”

       Regarding the respondent, Swenson’s report states in relevant part: “She has been diagnosed with Schizoid Personality Disorder and takes the antidepressant Zoloft. . . . She related that she began having psychological problems in high school and saw a psychologist at that time.
      “[The respondent] may well have difficulty with impulse control, with her ego being poorly developed, the results being that she may often act in a manner that has been inadequately thought out. It is likely that she exhibits poor judgment because of this and that she may experience much self-doubt and lack of confidence. There are indications that she has hostile and oppositional tendencies that she attempts to repress. However, these aggressive feelings, coupled with her poor ability to understand herself and to control and modulate her actions can lead to inappropriate, at times, bizarre behavior. . . . Her drawings suggest schizoid personality qualities, consistent with her diagnosis.
      * ** *
      “[The respondent’s] psychological problems are significant, interfering with judgment, her interpersonal relationships, her ability to tolerate stress and to understand complex situations. If stress and expectations for productive action are kept to a minimum and if her life is kept rather narrowly contained, it is more likely that she will be able to function within those confines. Novel situations and unexpected demands are likely to create much stress for her, and her reaction can become irrational.”

       Regarding the father, Swenson’s report provides in relevant part: “He perceives himself as gregarious and enjoys attention. Interpersonally, he may, however, be somewhat intolerant and insensitive. If [the father] were seeking custody of [the child], further personality testing would be recommended. However, for the purposes of this evaluation, I believe we are safe to assume that he has no other primary psychological problem than alcoholism and the cluster of defense mechanisms and personality dysfunction associated with that disorder — specifically, poor insight, limited ability to tolerate frustration, avoidance of difficult situations, low self-esteem and poor organization of his life.”

       Additionally, the respondent claims that the department and the aunt and uncle “are biased against her and that if visitation is left up to them without a court order no visitation will ever take place.” Because we conclude that the court impermissibly delegated its responsibility to the department and to the aunt and uncle, we do not address this claim.


author: FLYNN, J.

text:
    TROY BUTLER v. COMMISSIONER OF CORRECTION
    (AC 20257)
    Mihalakos, Flynn and Healey, Js.

      Submitted on briefs February 20
    officially released May 22, 2001

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Margaret Gaff-ney Radionovas, assistant state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Troy Butler, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the dismissal was improper because his trial counsel failed to render effective assistance in violation of (1) the sixth and fourteenth amendments to the United States constitution as a result of counsel's waiver of the petitioner’s right to elect between a trial to a jury or to a court, a right that the petitioner asserts is fundamental and personal to a criminal defendant, and waivable only by him regardless of counsel's tactical decisions, and (2) the petitioner’s right to due process of law by failing to ensure that he was arraigned and put to plea on the enhanced count of conspiracy to commit murder, thus depriving him of his right to adequate notice of the charges and resulting in fundamental unfairness in the criminal proceedings. We affirm the judgment of the habeas court.

The following facts found by the court are relevant to this appeal. The petitioner was arraigned and put to plea after being charged in a three count information with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), conspiracy to commit manslaughter in the first degree in violation of General Statutes §§ 53a-48 and 53a-55 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. On July 9, 1992, the petitioner entered pleas of not guilty and elected a trial by jury.

On or about January 7, 1993, over the objection of the petitioner, the state filed a four count substitute information charging him with a new charge of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a in lieu of the original charge of conspiracy to commit manslaughter. The state also charged him with manslaughter in the first degree in violation of § 53a-55 (a) (1), manslaughter in the first degree in violation of § 53a-55 (a) (3) and carrying a pistol without a permit in violation of § 29-35. The matter proceeded to a jury trial on all charges.

On February 11, 1993, the jury returned a verdict of guilty of conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a, manslaughter in the first degree in violation of § 53a-55 (a) (1) and carrying a pistol without a permit in violation of § 29-35. On April 2, 1993, the petitioner was sentenced to twenty years of incarceration, suspended after thirteen years, with three year's probation on the charge of conspiracy to commit murder, ten years of incarceration, suspended after five years, to run consecutively, on the manslaughter charge, and four years of incarceration, consecutive to counts one and two, on the charge of carrying a pistol without a permit.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires [a] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

I

The petitioner first claims that trial counsel failed to render effective assistance in violation of the sixth and fourteenth amendments to the United States constitution by waiving the petitioner’s right to elect between a trial to a jury or to a court, a fundamental right that is personal to a criminal defendant and waivable only by him regardless of counsel’s tactical decisions. We disagree.

We turn first to the petitioner’s claim that he was denied effective assistance of counsel because his trial counsel waived, without his consultation, the right to elect between a trial to a jury or to a court on the substituted count of conspiracy to commit murder. The habeas court found that the petitioner had been made aware of his right to elect between a trial to the court or to a jury at the July 9, 1992 arraignment hearing on the original charges. The record also supports the court’s finding that the petitioner offered no persuasive evidence that he would have changed his previous election from a jury trial to a court trial on the substituted charge because the theories of his defense remained the same both before and after the filing of the substituted information. We agree with the court that the petitioner failed to sustain his burden under Strickland of demonstrating that had trial counsel consulted with him regarding his right to elect between a trial to a court or to a jury, the outcome of the trial would have been different.

Moreover, the petitioner has no fundamental right under the federal constitution to have his case tried before a judge alone without a jury. Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965). As Chief Justice Warren, writing for a unanimous court in Singer, pointed out, the fact that some states have permitted nonjury trials of criminal cases “in no way show[s] that there was any general recognition of a defendant’s right to be tried by the court instead of by a jury. Indeed, if there had been recognition of such a right, it would be difficult to understand why Article III [of the United States constitution] and the Sixth Amendment were not drafted in terms which recognized an option.” Id., 31.

Likewise, there is no fundamental right to a court trial under our state constitution. In State v. Godek, 182 Conn. 353, 357-58, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981), the trial judge who accepted the defendant’s plea of nolo contendere to a charge of unlawful restraint in the first degree had not specifically advised him that he had a right to a trial by the court on that charge, which he was giving up by entering a plea of nolo contendere. Our Supreme Court noted that although the defendant had a right to waive a jury trial under General Statutes § 54-82 (a), that election is not a right guaranteed by our state constitution or by the federal constitution. State v. Godek, supra, 362 & n.90.

II

The petitioner next claims that he was denied due process of law by his counsel’s failure to ensure that he was arraigned and put to plea on the substituted count of conspiracy to commit murder, thus depriving him of his right to adequate notice of the charges and resulting in fundamental unfairness in the criminal proceedings. We disagree.

Generally, a defendant appears for arraignment before a judicial authority; Practice Book § 37-1; and, “[u]pon being read the charges against him or her contained in the information or complaint, the defendant . . . enterfs] a plea of not guilty, guilty, or nolo conten-dere.” Practice Book § 37-7. Connecticut courts adopt the principle that “when a defendant has been put to plea on a charge, the failure to put the defendant to plea again on an amended information when the nature of the offense is not changed is not a constitutional error.” State v. Henry, 253 Conn. 354, 370, 752 A.2d 40 (2000). If the amendment effects a substantive change, however, the accused must be rearraigned. 2 F. Wharton, Criminal Procedure (13th Ed. Torcia 1990) § 308, p. 340.

In this case, it is undisputed that the petitioner was never formally arraigned and put to plea on the first count of the substituted information, conspiracy to commit murder. The habeas court found that “[a]t no time did trial counsel demand that his client be put to plea on the substituted charge of conspiracy to commit murder . . . .” Because the nature of the offense was substantively changed by the amended information from conspiracy to commit manslaughter to conspiracy to commit murder, the petitioner should have been rearraigned and put to plea again. Although we do not approve of any failure to comply with the requirements of Practice Book § § 37-1 and 37-7, which require a defendant to be arraigned and put to plea, it does not follow that every deviation from the specific requirements of either rule mandates a conclusion of reversible error.

Notwithstanding that defect, there was a waiver of the petitioner’s right to be put to plea on the substituted count by virtue of his proceeding to trial. We do not find it necessary to review the habeas court’s decision that the petitioner’s trial counsel could waive the petitioner’s right to be arraigned on the new charge. The record clearly indicates that the petitioner himself had been advised by the trial judge of his rights at his initial arraignment and that he proceeded after the filing of the substituted information to participate in a jury trial on all charges, without protest, as if not guilty pleas had been entered on all charges. Although he was not arraigned on the substituted conspiracy charge, he certainly was aware of the nature of the newly added conspiracy charge against him, despite the lack of formal arraignment on it, as the court found, by virtue of his being present (1) at the proceeding in which his attorney objected to its being filed, (2) during jury selection when the charges were read, (3) during the judge’s opening instructions to the jury, (4) during closing argument, (5) at the time the trial judge gave instructions to the jury and (6) during argument on the petitioner’s motion for a judgment of acquittal. The habeas court properly found that “[t]he petitioner had timely and adequate notice of the substituted charge of conspiracy to commit murder.”

Moreover, the petitioner testified that had he been put to plea again, he would have entered a plea of not guilty. The effect of his proceeding to trial was as if he had pleaded not guilty, which was to his advantage. He has made no claim before the habeas court that he wanted to plead guilty. Furthermore, the record is clear that the petitioner’s primary defense to the charges was to attack the identification of him that was made at trial by the state’s witness, which defense was not changed by the new conspiracy charge.

Additionally, the petitioner must provide a specific showing of prejudice to establish that he was denied due process of law. See State v. Franko, 199 Conn. 481, 492, 508 A.2d 22 (1986). In light of the actual notice that the petitioner had of the new charge and the fact that the state was required to prove his guilt beyond a reasonable doubt, he has not demonstrated that he was harmed in any way by the court’s failure to put him to plea on the substituted charge of conspiracy to commit murder. The habeas court concluded, and we agree, that “[t]he petitioner has failed to show prejudice such as to have deprived him of his constitutional right to a fair trial.”

Similarly, the petitioner has failed to establish that his trial counsel’s failure to ensure that he was arraigned and put to plea on the substituted count was “deficient” performance outside the range of reasonable professional assistance and, further, that it would have changed the outcome of his trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-82 (a) provides: “In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.”

       We note that conspiracy to commit involuntary manslaughter is not a cognizable crime. State v. Montgomery, 22 Conn. App. 340, 344, 578 A.2d 130, cert. denied, 216 Conn. 813, 580 A.2d 64 (1990). Manslaughter under § 53a-55 (a) (1) requires a finding that the defendant intended to inflict serious bodily injury and that an unintended death resulted. See id. “Conviction of that crime does not encompass an intent that death . . . result.” Id. In contrast, conspiracy to commit murder requires that the conspirators “intended to [agree] and that they intended to cause the death of another person.” (Internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 259, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996); General Statutes §§ 53a-48 and 53a-54a.


author: PER CURIAM.

text:
    ROBERT A. BLATT, TRUSTEE v. BOARD OF ASSESSMENT APPEALS OF THE TOWN OF EAST LYME
    (AC 19988)
    Schaller, Mihalakos and Stoughton, Js.
    Argued February 27
    officially released May 22, 2001

      Brian B. Staines, with whom, on the brief, was Lee N. Johnson, for the appellant (plaintiff).

      Edward B. O’Connell, with whom, on the brief, was David P. Condon, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Robert A. Blatt, trustee, appeals from the judgment of the trial court dismissing his appeal from the decision of the board of assessment appeals of the town of East Lyme (board). At issue is the board’s valuation of 200 acres of property that the plaintiff owns. On appeal, the plaintiff claims that the court improperly (1) found that the property had not been overvalued and (2) concluded that the board’s valuation of the property did not constitute an illegal tax pursuant to General Statutes § 12-119.

The following facts and procedural history are relevant to this appeal. The plaintiff owns property in the town consisting of a 200 acre parcel of land improved with one building. The town assessor (assessor) determined that, as of the assessment year commencing October 1, 1991, the true and actual value of the plaintiffs property was $1,464,500. In accordance with General Statutes § 12-62a (b), the assessor assessed the property at 70 percent of that value. Disputing the valuation, the plaintiff appealed to the board seeking a considerable reduction in the property assessment. See General Statutes § 12-111 (providing for appeal to board). The board reduced the value of the building from $126,490 to $111,930, thereby slightly reducing the value of the property to $1,443,700. Accordingly, the board assessed the property at $1,010,590. Pursuant to General Statutes § 12-117a, the plaintiff appealed from the board’s decision to the Superior Court for the judicial district of New London.

The court conducted a trial de novo during which the board called Robert Flanagan, a real estate appraiser, as an expert witness. Flanagan testified as follows. The highest and best use of the plaintiffs property was as raw land included in a golf course development. He arrived at that conclusion after considering the history of the property, the permits that had been obtained for the property and the intrinsic characteristics of the property, including a natural pond and rolling elevations. In his opinion, the true and accurate value of the plaintiffs property was $1,455,000. In arriving at that value, which equals $7300 per acre, he considered residential development as a competing use and analyzed the sale prices of comparable properties that had been obtained for that use.

The court dismissed the plaintiffs appeal. In its memorandum of decision, the court summarized Flanagan’s testimony and stated: “The court finds the evidence presented by the defendant regarding comparable sales of raw land for development (whether for golf course or residential use) more convincing than that presented by the plaintiff. Based upon the evidence presented, the court finds that the plaintiff has not met [his] burden of showing that the property was overvalued for tax assessment purposes.” Thereafter, the plaintiff appealed to this court.

On appeal, the plaintiff asks this court to review the trial court’s findings of fact. It is well established that an appellate court cannot find new facts. Our review is limited to determining whether the trial court’s judgment was clearly erroneous or contrary to law. Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

In the present case, the court filed a detailed and comprehensive memorandum of decision reciting the facts that it found to support its decision. “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997). After a complete review of the record, we conclude that the trial court’s finding that the plaintiffs property was not overvalued is not clearly erroneous. Accordingly, the plaintiff cannot succeed in either of the claims raised in this appeal.

The judgment is affirmed.

       General Statutes § 12-119 “allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 340-41, 654 A.2d 1233 (1995). On appeal, the plaintiff merely challenges the assessment and does not claim that the town had no authority to tax his property.

       General Statutes § 12-117a provides in relevant part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1,1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

        “A trial court hears tax appeals pursuant to § 12-117a de novo and must arrive at [its] own conclusions as to the value of [the taxpayer’s property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value .... Xerox Corp. v. Board of Tax Review, 240 Conn. 192, 204, 690 A.2d 389 (1997).” (Internal quotation marks omitted.) Davis v. Westport, 61 Conn. App. 834, 840, 767 A.2d 1237 (2001).


author: FOTI, J.

text:
    IN RE JONATHON G.

    (AC 20939)
    Foti, Spear and Hennessy, Js.
    Argued March 21
    officially released May 22, 2001

      Thomas S. Becker, for the appellant (respondent father).

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

       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

FOTI, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his son. On appeal, the respondent claims that the court’s conclusions that he had abandoned his son and that there was no ongoing parent-child relationship were not legally correct and factually supported. The respondent also claims that the court’s factual findings pursuant to General Statutes (Rev. to 1999) § 17a-112 (d), now (k), were not supported by the record. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 1998, the commissioner of the department of children and families (department) filed a neglect petition, alleging that the respondent’s child was uncared for and homeless, and that the specialized care that the child required as a result of his physical, emotional or mental condition could not be provided in his home. He was committed to the care and custody of the department and, in 1999, the court ordered that continuing efforts for reunification were no longer appropriate with regard to both parents. Thereafter, the department filed a petition for the termination of the parental rights of 'the child’s mother and of the respondent. As to the respondent, the petition alleged that he had failed to achieve sufficient personal rehabilitation, that he lacked an ongoing parent-child relationship with his son and that he had abandoned his son.

In a comprehensive memorandum of decision, the court set forth the following facts. “In 1990, [the child’s mother and father] became involved in a relationship that lasted for eight months. Their relationship was volatile and marred by domestic violence. [The respondent father] also had problems with [the mother’s] family. On at least one occasion, he threatened to kill all of them and on another occasion he held a knife to [the mother’s] little sister’s throat. As a result of this behavior, [the child’s maternal grandmother] obtained two restraining orders restricting [the respondent father’s] contact with the family.

“In January of 1991, at the same time that [the child’s mother and father] were in the process of breaking up, [the mother] learned that she was pregnant. [The child’s mother and father] ended their relationship in the winter of 1991. [The child’s maternal grandmother] testified that during one of the restraining order hearings, [the respondent father] asked that the order not be entered because he would miss the birth of his child.

“[The child] was born on August 31, 1991. At the time of [the child’s] birth, [the respondent father] was attending Army boot camp in Georgia. While there, he received a certified letter informing him that [the mother] had a child and that she was claiming that he was the father. [The respondent father] did not respond to this letter. While [he] had some doubts as to whether he was the father, he was clearly on notice that he might be as of the summer of 1991.

“When [the child] was bom, [his mother] initially decided to give him up for adoption. However, [the child’s paternal grandmother] told [the mother’s] family that she did not want the child given up for adoption and that she wanted him to stay in the family. At that point, [the child’s maternal grandmother] decided that she would help [the mother] take care of the child. [The child’s maternal grandmother] invited [the child’s paternal grandmother] to visit with [the child] while he was still a baby. [The child’s paternal grandmother] explained to [the child’s maternal grandmother] that she did not want to see the child until a paternity test confirmed that he was [the respondent father’s] son. [The child’s paternal grandmother] also had an attorney send the mother a letter requesting visitation if a test confirmed that the child was her grandchild. When she received no response to this letter, neither she nor her son took any action in court to assert parental rights or took any steps to have a paternity test performed.

“On December 15, 1994, [the child’s maternal grandmother] obtained guardianship of [the child] through the Probate Court because [the mother] was having psychiatric problems and [the child] was being abused by [the mother’s] boyfriend. He had repeatedly assaulted the child who was only two years old.

“In February of 1997, [the mother] went back to Probate Court and obtained temporary custody of the child. [The child’s maternal grandmother] objected to the child being returned to [the mother] because [the mother] had not received any counseling for her problems and was now involved in an unsafe relationship with [another boyfriend]. After the child was returned to his mother, [the child’s maternal grandmother] tried to keep [the child] safe by taking the child to her house on the weekends and several times during the week. However, while living with his mother, [the child] was severely abused by [the mother’s then boyfriend], including being punched and kicked in the stomach.

“In December of 1997, [the child’s maternal grandmother] went back to Probate Court and was again given guardianship of [the child].

“When [the child] was returned to his maternal grandparents, he needed counseling for the abuse and neglect he had suffered at the hands of his mother and her boyfriends. In December of 1997, [the child] was enrolled in the Apple Valley Partial Hospitalization Program because of his severe aggression and hyperactivity. He was diagnosed with posttraumatic disorder and depressive disorder.

“On January 24, 1998, [the child] was hospitalized at Elmcrest Psychiatric Hospital for his behavioral problems. He was discharged after one week and then immediately rehospitalized because the maternal grandparents did not feel they could keep him safe because of his uncontrollable behavior. He was then hospitalized at Elmcrest from January 30, 1998, until March 24, 1998.

“On February 13,1998, [the department] obtained an order of temporary custody for [the child] because [the child] was still engaging in rages and the maternal grandparents did not feel they could keep him safe. At the time that the [order for temporary custody] was filed, however, the plan was for the maternal grandparents to care for [the child] after he received appropriate care and had stabilized.

“When [the child] was discharged from Elmcrest, [the department] placed him at the home of his maternal grandparents and he attended the Elmcrest intensive outpatient program. [The child] was treated by Russell Harrington, a therapist with Elmcrest, between the fall of 1998 and May of 1999. While Harrington was treating [the child], he discussed the concept of a biological father [with the child] on several occasions. [The child] had no memories of his father and indicated that he had no interest in meeting him or having him as part of his life.

“Between June, 1998, and July, 1998, [the child] was admitted to [the Hospital of Saint Raphael] because of his disruptive behavior. He was then placed at Curtis Home between September of 1998 and February of 1999. Because he was repeatedly running away and was constantly bruised, he was returned to his maternal grandparents in February of 1999, where he has resided through the time of trial.

“Since March of 1999, [the child] has attended the Wheeler Clinic program for treatment. Since September of 1999, he has received individual counseling from psychologist Susan Harrington at Wheeler. He has been diagnosed with major depressive disorder, oppositional defiant disorder and attention deficit hyperactivity disorder. [The child] has a negative view of himself as different, damaged and inherently defective.

“As a result of his treatment at Wheeler Clinic, [the child’s] behavior has improved. He is still, however, a very ill little boy. While it was initially necessary to constantly put him into restraints for his outbursts and tantrums, these behaviors have lessened over time. As recently as March of this year, however, 911 had to be called because [the child] was out of control and in danger of hurting himself or those around him. Susan Harrington testified that [the child] is not yet at the point where he can internally control his emotional outbursts. She also testified, however, that she is hopeful for this child because he does have an ability to form attachments and he is an intelligent child. She has worked closely with [the child] and his maternal grandparents for the last year. Susan Harrington has found that [the child] feels loved, safe and attached to his grandparents. [The child’s] maternal grandfather goes camping and fishing with [him] and participates in Boy Scouts with him. Both maternal grandparents have been highly involved in [the child’s] treatment. Susan Harrington testified that she believes that [the child’s] maternal grandparents can meet his special needs.

“Susan Harrington has also discussed the concept of a biological father with [the child]. He views fathers as bad men who hurt people. He was very disturbed by the concept of all children having a biological father even if they have not seen him. Susan Harrington found that [the child] has no memories of his biological father.

“Prior to 1995, [the respondent father] never made any attempts to see [the child]. In 1995 or 1996, [the respondent father] did see [the child] twice at [the invitation of the child’s maternal grandmother]. He took the child shopping and gave him several presents, including his watch. He told his mother at that time that he was interested in having a paternity test and in taking care of his child. He did not, however, take any action at this point to confirm his paternity.

“In December of 1996, [the respondent father] was arrested for an incident in which he was intoxicated and ran over another individual. In December of 1997, he was convicted on two counts of reckless endangerment and one count of assault [in the second degree]. He was sentenced to serve one year in jail.

“While incarcerated, [the respondent father] was contacted by [the department] because [the mother] had named him as the putative father in the neglect/uncared for proceedings. As part of these court proceedings, [the respondent father] had a paternity test done that confirmed that he was the father of [the child]. In April of 1998, [the respondent father] finally acknowledged paternity of [the child] who was now six years old.

“In May of 1998, [the respondent father] submitted to a court-ordered psychological evaluation of his current personality functioning to aid in determination of his ability to parent [the child]. Anne Phillips, a clinical psychologist, found that [the respondent father] did not display a capacity for separate understanding of others or for anticipating the extensive and complicated needs of his son.

“On August 19, 1998, the court ordered that [the child’s] therapist, Russell Harrington, would have to approve any contact between [the child] and [the respondent father]. [The respondent father] did contact Russell Harrington to see if he could have a visit with [the child] and the therapist. Russell Harrington told [the respondent father] that he would have to come in and meet with him individually before he would consider his meeting [the child]. [The respondent father] refused to do this. [The respondent father] subsequently told [the department] that he considered psychology ‘a crock’ and Russell Harrington a ‘sicko.’ After [the respondent father] contacted Russell Harrington about visitation, Mr. Harrington recommended that visitation not occur because it would not be in the child’s best interest.

“At around the same time that the [termination of parental rights] papers were filed, [the respondent father] started sending support payments for [the child]. He also attended a number of different parenting classes.

“On April 19, 2000, [the respondent father] arranged to have a psychological evaluation performed by psychologist Bruce Freedman. [The respondent father] admitted to Freedman that he might have tried to avoid responsibility or awareness that he had a child. Without seeing the child, Freedman recommended that [the respondent father’s] parental rights not be terminated.”

We begin our discussion by noting that “[t]he hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximino V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).” (Citation omitted; internal quotation marks omitted.) In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995).” In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Id.

I

The respondent claims that the court’s conclusion that there is no ongoing parent-child relationship is not legally correct and factually supported by the record. We do not agree.

General Statutes (Rev. to 1999) § 17a-112 (c) (3) (D), now (j) (3) (D), provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

“This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. ... In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. See In re Michael M., [29 Conn. App. 112, 129, 614 A.2d 832 (1992)]; In re Megan M., [24 Conn. App. 338, 341, 588 A.2d 239 (1991)]. The ultimate question is whether the child has no present memories or feelings for the natural parent. In re Jessica M., [217 Conn. 459, 468, 586 A.2d 597 (1991)]; In re Juvenile Appeal (84-6), [2 Conn. App. 705, 708-709, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985)]. Feelings for the natural parent connotes feelings of a positive nature only. In re Jessica M., supra, 469; In re Juvenile Appeal (84-6), supra [709]. In re Kezia M., 33 Conn. App. 12, 20-21, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).” (Citations omitted; internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 601-602, 722 A.2d 1232 (1999).

The evidence before the court was sufficient to support the conclusion that the child has no present memories of or feelings for the respondent. In addition to finding that the child “has no memories of [the respondent],” the court found that “because of the abuse that this child has suffered at the hands of [his mother’s] various boyfriends, he views fathers as mean people who hurt other people.” The feelings of the child are most important in determining whether a parent-child relationship exists. In re Savanna M., 55 Conn. App. 807, 815, 740 A.2d 484 (1999). The court properly weighed the evidence, including expert testimony, to conclude as it did.

The court also found by clear and convincing evidence that it was not in the child’s best interest to allow further time to establish aparent-child relationship. The record discloses that the child is a very emotionally fragile nine year old who suffers from several disorders. He is a child who has never known his father, has bonded with his maternal grandparents and is making progress with them. The respondent, on the other hand, is unable to understand the child’s special needs. In considering those factors, the court also properly weighed the child’s strong need for permanency and concluded that it was not in the child’s best interest to allow further time to establish a relationship with the respondent. On the basis of the evidence before the court, we cannot disturb its findings.

II

The respondent also argues that the court improperly concluded that he had abandoned his son.

In part I, we concluded that the court properly found that there was no ongoing parent-child relationship between the respondent and the child.

We need only uphold one statutory ground found by the court to affirm its decision to terminate parental rights. In re John G., 56 Conn. App. 12, 20 n.4, 740 A.2d 496 (1999). “To prevail on [his] claim that the court improperly terminated [his] parental rights, the respondent must successfully challenge all of the bases of the judgment terminating [his] parental rights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” (Internal quotation marks omitted.) Id. Accordingly, because we concluded that the court properly determined that one statutory ground for termination exists, namely, lack of an ongoing parent-child relationship, we need not reach the respondent’s claim that the court improperly found that the respondent had abandoned the child.

Ill

The respondent claims that the court’s factual findings as to the factors enumerated in § 17a-112 (d), now (k), were not supported by the record. We do not agree.

“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 parents’ parental rights is not in the best interest of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [§ 17a-112 (d), now (k)].” In re Denzel A., 53 Conn. App. 827, 833, 733 A.2d 298 (1999).

Those seven factors, considered in the dispositional phase, are not a prerequisite to the issuance of an order terminating parental rights. In re Quanitra M., 60 Conn. App. 96, 104, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Proof by clear and convincing evidence of the seven factors prior to the finding by the court that it is in the best interest of the child to terminate the respondent’s parental rights is not required. Id., 105.

Although the respondent argues to the contrary, the court considered those factors and made the mandatory findings in its memorandum of decision. Although the respondent is not pleased with the court’s findings and the manner in which the court made them, we may not usurp the court’s function. “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.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 65, 699 A.2d 101 (1997). The probative force of conflicting evidence is for the trier to determine and our function as an appellate court is to review and not to retry the matter. In re Ashley E., 62 Conn. App. 307, 316, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001).

We conclude that sufficient evidence in the record supports each of the court’s findings. We find it unnecessary to discuss and analyze each of the court’s findings concerning the statutory factors.

The judgment is affirmed.

In this opinion the other judges concurred.

       On March 31, 2000, the child’s mother consented to the termination of her parental rights with regard to her son. As only the respondent fattier has appealed, we refer to him in this opinion as the respondent.

         General Statutes (Rev. to 1999) § 17a-112 (d), now (k), provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


text:
    STATE OF CONNECTICUT v. EDGAR RODRIGUEZ
    (AC 20827)
    Foti, Dranginis and Dupont, Js.
    Argued April 5
    officially released May 22, 2001

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Edgar Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly instructed the jury on (1) proof beyond a reasonable doubt and (2) the element of intent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 24, 1993, at approximately 4 p.m., the victim, Jose Rivera, was found shot to death in the front hallway of a two story house on Kossuth Street in Bridgeport. His body was found draped over backward on a bicycle, and seven bullet casings, bullets and fragments were found at the scene. About one-half hour earlier, the defendant and the victim had argued loudly about drugs when the defendant pulled out a black nine millimeter handgun and shot Rivera in the leg. Rivera ran with his bicycle toward the stairs to the house, and the defendant kept shooting. Rivera was hit in the back, and the defendant departed in an automobile, a white Jetta. The defendant is the registered owner of a white Jetta.

I

The defendant first claims that the court improperly instructed the jury regarding the state’s burden of proof beyond a reasonable doubt by using the phrases “ingenuity of counsel” and “real doubt, honest doubt.” The defendant failed to submit a request to charge on the issue and took no exception to the charge given by the court. The defendant relies on State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for review and, alternatively, seeks review under the plain error doctrine. Practice Book § 60-5. We will review the defendant’s claim because the record is adequate for our review and because a claim of instructional error regarding the burden of proof is of constitutional magnitude. State v. Green, 62 Conn. App. 217, 242, 774 A.2d 157 (2001).

The defendant acknowledges that we, as an intermediate appellate court, do not reevaluate Supreme Court decisions and are bound by those decisions. State v. Goodman, 35 Conn. App. 438, 442, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 824 (1994). Our Supreme Court has rejected constitutional challenges to instructional language identical to that presented in this appeal. State v. Montgomery, 254 Conn. 694, 729-31, 759 A.2d 995 (2000). The defendant, therefore, cannot establish that the third condition of Golding has been met, i.e., that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

II

The defendant next claims that the court improperly instructed the jury on the essential element of intent. Specifically, he argues that the charge on intent to cause the death of another person was improper in that the court stated that it could be proved by finding that the defendant intended to engage in the conduct of firing a gun, rather than finding that he intended to cause the result of his conduct, the victim’s death. We disagree.

The defendant neither filed a request to charge nor noted an exception to the instruction as given. He seeks review under the principles set forth in State v. Golding, supra, 213 Conn. 239-40, or under the plain error doctrine. We will review the defendant’s claim pursuant to Golding because the record is adequate and an improper instruction on an element of an offense is of constitutional dimension. State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

The court instructed the jury as follows: “The defendant is charged with the crime of murder in violation of § 53a-54a (a) of the state of Connecticut Penal Code, which insofar as is pertinent to this case provides as follows: A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person. I’ll read that to you again. A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person.

“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. That this defendant intended to cause the death of another person and that in accordance with that intent the defendant caused the death of that person. In order to convict the defendant of murder, you must find first that the defendant caused the death, you must also find — you must find proven beyond a reasonable doubt that the victim died as a result of the actions of the defendant. The state must prove beyond a reasonable doubt that the defendant caused the death of the victim with the intent to cause that death.

“What do I mean by intent? Intent relates to the condition of mind of the person who commits the act. His purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct. What a person’s purpose or intention has been is usually a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain purpose or intention to do harm to another. The only way in which a jury can ordinarily determine what a person’s purpose or intention was at a given time is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from that infer what his puipose or intention was. To draw such an inference is not only the privilege but also the proper function of a jury provided, of course, that the inferences drawn compl[y] with the standards for inferences as explained in connection with my instructions on circumstantial evidence.” (Emphasis added.) The italicized words are those on which the defendant rests his argument.

A defendant in a criminal case is entitled to a clear and unequivocal charge by the court that his guilt must be proved beyond a reasonable doubt. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 713-15, 741 A.2d 913 (1999).

A jury charge regarding the intent to engage in proscribed conduct is irrelevant to a murder prosecution under § 53a-54a. State v. Prioleau, supra, 235 Conn. 322. The issue then becomes whether it is reasonably possible that the jury was misled by the improper instruction. State v. Austin, supra, 244 Conn. 236.

In State v. Francis, 246 Conn. 339, 358, 717 A.2d 696 (1998), our Supreme Court addressed the distinction between an instruction on intent to cause a result, death, and intent to engage in proscribed conduct. The court concluded that, viewing the instruction in its entirety, it was not misleading because the trial court in that case repeatedly instructed the jury that to find the defendant guilty of murder, it first had to find that he intended to cause the death of the victim. Id.; see also State v. Prioleau, supra, 235 Conn. 322.

Here, the court’s instruction improperly referred to “conduct” twice within the same sentence. The instruction, however, properly referred to the intent to cause a result, death, on five occasions, twice when reading the statutory definition of § 53a-54a (a) and three additional times as a prerequisite to finding the defendant guilty of the crime charged. It is not reasonably possible that the jury was misled by the repeated instruction that, to find the defendant guilty of murder, it first had to find that he intended to cause the death of the victim.

The defendant claims that this matter is “totally distinguishable from both Austin and Prioleau” and is more analogous to State v. DeBarros, 58 Conn. App. 673, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000). We distinguish DeBarros because the court in that case read the entire statutory definition contained in General Statutes § 53a-3 (11), including a reference to intent to engage in proscribed conduct, and either read or referred back to that language seven to ten times. Id., 683. In the present case, the court neither read the entire statute nor referred to “conduct” other than in one sentence. Furthermore, DeBarros involved three crimes, namely, murder, attempt to commit murder and assault in the first degree, each requiring a specific intent. In DeBarros, the court “read the instruction as a specific definition of the intent required for the crimes charged.” Id. In the present case, however, the court read the improper instruction in one sentence and only as part of a general definition of intent.

We conclude that it is not reasonably possible that the court’s instruction on the element of intent misled the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       The court instructed the jury in relevant part: '“The burden of proof. The burden to prove the defendant guilty of the crime with which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. In this case, murder. Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony is sufficient to convict if it establishes all the elements of the crime beyond a reasonable doubt.
      “Reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture, nor is it doubt suggested by ingenuity of counsel or of a juror not warranted by the evidence. It is such a doubt as in the serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence. Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       The defendant’s brief was written at a time when this case was pending in the Supreme Court, before the case was transferred to this court.

         While directing trial courts to refrain from using the “ingenuity of counsel” language in the future, our Supreme Court has nevertheless rejected the claim that the language is constitutionally defective. State v. Montgomery, supra, 254 Conn. 731 n.41.