author: PER CURIAM.

text:
    NATHAN PRIMUS, TRUSTEE OF THE PRIMUS FAMILY TRUST v. PLANNING AND ZONING COMMISSION OF THE TOWN OF SOUTHINGTON
    (AC 27234)
    Schaller, McLachlan and Rogers, Js.
    Argued February 22
    officially released May 15, 2007

      Bridget C. Gallagher, for the appellant (plaintiff).

      David F. Sherwood, with whom was E. Timothy Sullivan, Jr., special assistant town attorney, for the appel-lees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Nathan Primus, trustee of the Primus family trust, appeals from the judgment of the trial court dismissing his appeal from the decision of the planning and zoning commission of the town of Southington (commission) denying his applications for a special permit and site plan. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction to hear his appeal. We disagree and affirm the judgment of the trial court.

The following factual and procedural background is necessary for our resolution of the plaintiffs appeal. On May 10, 2004, the plaintiff filed amended applications for a special permit use and site plan with respect to property located in Southington. The plaintiff sought to construct ninety-one multifamily dwelling units, 30 percent of which would be designated as affordable units to meet the criteria for a set aside development under General Statutes § 8-30g (a) (6). After a public hearing, the commission unanimously denied the plaintiffs application.

The plaintiff appealed from the commission’s decision. The summons prepared by the plaintiffs attorney instructed the marshal to serve legal process upon the chairperson of the commission and the town clerk. The marshal’s return of service, however, indicated that on August 2,2004, he served process by leaving two copies of the citation, complaint and recognizance with surety with only the town clerk.

On January 15,2005, the defendants moved to dismiss the appeal for lack of subject matter jurisdiction. The defendants argued that the service of process was defective because it failed to comply with General Statutes (Rev. to 2003) § 8-8 (f), which requires service on both the chairman or clerk of the board and the clerk of the municipality. The plaintiff responded that he had complied with General Statutes (Rev. to 2003) § 52-57 (b) (5) by serving two copies with the clerk of the town, and, therefore, the service of legal process was proper. On September 6,2005, the court issued a memorandum of decision granting the defendants’ motion to dismiss. Specifically, the court concluded that § 8-8 (f), as amended by Public Acts 2004, No. 04-78, § 1 (P.A. 04-78), required service on the chairperson of the commission. Accordingly, the failure to serve the chairperson in accordance with § 8-8 (f) deprived the court of subject matter jurisdiction. This appeal followed.

After the parties had filed their appellate briefs, our Supreme Court issued its decision in Vitale v. Zoning Board of Appeals, 279 Conn. 672, 904 A.2d 182 (2006). In Vitale, the dispositive issue was “whether, on July 15, 2003, the service of legal process for an appeal from a decision of a municipal zoning board was governed by ... § 8-8 (f) or ... § 52-57 (b) (5) . . . .” Id., 674. At the outset of its analysis, the court noted that it had “recently affirmed the long-standing principle that failure to comply with the statutory requirements for service of legal process on a zoning board in a zoning appeal will deprive the court of subject matter jurisdiction.” (Internal quotation marks omitted.) Id., 678. It then stated that P.A. 04-78 was determinative of the question of whether § 8-8 (f) or § 52-57 (b) (5) governed the service of process of zoning appeals on July 15, 2003. Id. “By its express terms, P.A. 04-78 applies the service requirements of § 8-8 (f) to zoning appeals taken prior to October 1, 2004, and the service requirements of § 52-57 (b) (5) to zoning appeals taken after October 1, 2004.” (Emphasis added.) Id., 679. We conclude that Vitale controls the present appeal.* *

The appeal in the present case was served on August 2, 2004. “Accordingly, P.A. 04-78 dictates that service of process . . . should have been made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and . . . the clerk of the municipality.” (Internal quotation marks omitted.) Id. As in Vitale, the plaintiffs marshal complied only with the requirements of § 52-57 (b) (5) by leaving two copies of the appeal papers with the town clerk. The marshal did not leave any copy of the appeal papers with the chairman or clerk of the commission, thereby failing to comply with § 8-8 (f). The court properly concluded that this failure resulted in a lack of subject matter jurisdiction.

The judgment is affirmed.

       On December 30, 2004, two abutting property owners, Darryl T. Upson and Joseph Rosia, intervened as party defendants and subsequently moved to dismiss the plaintiffs appeal. We therefore refer in this opinion to Upson and Rosia as the defendants.

       General Statutes (Rev. to 2003) § 8-8 (f) provides: “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.”

       General Statutes (Rev. to 2003) § 52-57, as amended by Public Acts 2003, No. 03-278, § 126, provides in relevant part that, “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows ... (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of the general statutes, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . . .”

       Public Acts 2004, No. 04-78, § 1, provides: “(f) Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows:
      “(1) For any appeal taken before [October 1,2004], process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.
      “(2) For any appeal taken on or after [October 1, 2004], process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57, as amended by this act. Such service shall be for the purpose of providing legal notice of 1he appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal.”

       In his statement of issues on appeal, the plaintiff claimed that the court (1) failed to determine that service was proper under General Statutes § 52-57 as amended by Public Acts 2003, No. 03-278, (2) improperly applied the provisions of General Statutes § 8-8 (f) as amended by P.A. 04-78, (3) failed to interpret liberally the procedures set forth in § 8-8 as provided in § 8-8 (p) and (4) improperly concluded that the service requirements set forth in § 8-8 were mandatory rather than directory.

       “It is axiomatic that we are bound by our Supreme Court precedent." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).

       In Vitale, our Supreme Court stated: “We note that in its memorandum of decision dismissing the appeal, the trial court determined that [General Statutes] § 8-8 (q), one of the savings provisions contained in § 8-8, was unavailable to the plaintiffs in the present case because they had not attempted to correct the service defect by serving the chairperson or clerk of the defendant within fifteen days of receiving notice of the defective service by way of the marshal’s return. We disagree. Section 8-8 (q) provides in relevant part: If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. . . . The savings provision codified at § 8-8 (q) is a remedial provision that warrants a broad construction. Cf. Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004) ([w]e have consistently held that our accidental failure of suit statute . . . [General Statutes] § 52-592, is remedial and is to be liberally interpreted). Accordingly, § 8-8 (q) is available to a plaintiff upon any determination by a court that service was defective. Section 8-8 (q) therefore is available to the plaintiffs, should they choose to invoke it, upon the determination by this court that the service of process in this matter was insufficient because it failed to comply with P. A. 04-78.” (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, supra, 279 Conn. 681 n.9.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    ANTHONY SMALL v. STATE OF CONNECTICUT
    Schaller, Bishop and Gruendel, Js.

      Considered December 13, 2006
    officially released May 15, 2007

      Anthony Small, pro se, in support of the motion.
   Opinion

BISHOP, J.

The pro se petitioner, Anthony Small, seeks review of the trial court’s order denying his request for appointment of counsel to pursue an appeal from the denial of his petition for new trial. We grant the petitioner’s motion for review but deny the relief requested therein.

In 1995, following a jury trial, the petitioner was convicted of capital felony in violation of General Statutes § 53a-54b (8), two counts of felony murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and § 53a-48. On appeal, our Supreme Court reversed the judgment in part and remanded the case to the trial court with direction to vacate the capital felony conviction and to impose a sentence on the felony murder charges. State v. Small, 242 Conn. 93, 700 A.2d 617 (1997). The trial court thereafter imposed a total effective sentence of forty-five years incarceration.

On February 16, 2001, the petitioner filed a petition for new trial pursuant to General Statutes § 52-270 and Practice Book § 42-55, in which he alleged actual innocence on the basis of newly discovered evidence. The petitioner further alleged that the state failed to disclose exculpatory evidence and that the trial court improperly charged the jury on consciousness of guilt. On July 7, 2006, the court denied the petitioner’s request for a new trial. Thereafter, the petitioner filed a petition for certification to appeal and an application for waiver of fees, costs and expenses and for the appointment of counsel on appeal. On August 9, 2006, the court found that the petitioner was indigent and, therefore, granted the application for waiver of fees, costs and expenses on appeal but denied his request for the appointment of appellate counsel. The court also denied the petition for certification to appeal on the ground that there were no questions involved that merited review by an appellate court. The petitioner filed with this court a motion for review of the trial court’s order denying the appointment of appellate counsel. Subsequently, the court articulated that it had denied the request to appoint counsel because the action was a civil proceeding ancillary to the original criminal matter, because five previous requests for the appointment of counsel had been denied and because there were no questions involved that should be reviewed by an appellate court.

The petitioner now asks this court to reverse the trial court’s order denying his request for the appointment of counsel. Specifically, the petitioner argues that a trial court has the discretion to appoint counsel pursuant to General Statutes §§ 51-291 (11) and 51-293 (a) and that because the court found the petitioner indigent, it should have exercised that discretion to appoint counsel because he has limited resources to pursue an appeal while incarcerated. We disagree.

In deciding a motion for review of a trial court’s order concerning the appointment of appellate counsel, we must determine whether the court abused its discretion. “In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). “Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” Connecticut National Bank v. Zuckerman, 29 Conn. App. 541, 545, 616 A.2d 814 (1992).

The petitioner argues that § 51-291 directs the public defender services commission to maintain a list of attorneys from which a trial court may appoint counsel to represent a person in appropriate matters. The petitioner also asserts that § 51-293 permits a trial court to appoint a special public defender in appropriate cases. Assuming, without deciding, that those statutes provided the petitioner an avenue for requesting court-appointed counsel, we determine that the court did not abuse its discretion in this case because the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel.

“The general rule is that court-appointed counsel is not available in civil proceedings.” Kennedy v. Putman, 97 Conn. App. 815, 816 n.3, 905 A.2d 1280 (2006). General Statutes § 54-95 (a) provides in relevant part that a criminal defendant may seek relief from a criminal conviction by filing a petition for a new trial “in the same manner and with the same effect as in civil actions. . . .” (Emphasis added.) A petition for a new trial is collateral to the action in which a new trial is sought. Redding v. Elfire, LLC, 98 Conn. App. 808, 818, 911 A.2d 1141 (2006). In an action on a petition for new trial, a petitioner is not a criminal defendant but, rather, is a civil petitioner. Seebeck v. State, 246 Conn. 514, 545, 717 A.2d 1161 (1998). A proceeding on a petition for new trial, therefore, is not a criminal action. Rather, it is a distinct proceeding that is commenced by the service of civil process and is prosecuted as a civil action. Redding v. Elfire, LLC, supra, 818-19.

The legislature, however, has created exceptions to the general rule that court-appointed counsel is not available in civil proceedings by providing for the appointment of counsel to represent indigent parties in certain civil actions. “Among those who have a statutory right to counsel in civil cases are petitioners in habeas corpus proceedings arising from criminal matters, General Statutes § 51-296 (a); litigants in termination of parental rights cases, General Statutes § 45a-717 (b), and proceedings on behalf of neglected, uncared for or dependent children or youths, General Statutes § 46b-135 (b); and persons who might be involuntarily confined due to mental condition or for purposes of quarantine, e.g., General Statutes §§ 17a-498 and 19a-221.” W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2007 Ed.) § 63-6, official commentary to 2006 amendments, p. 145. The petitioner offers no authority, nor does our research reveal any, suggesting that there is a statutory exception applicable in this case to the general rule that court-appointed counsel is not available in civil actions.

In addition to the foregoing, our legislature has statutorily provided that, once a trial court determines that a defendant is indigent, the court must appoint counsel (1) in any criminal action, (2) in any habeas corpus proceeding arising from a criminal matter, (3) in an extradition proceeding, or (4) in any delinquency matter. General Statutes § 51-296 (a). Our appellate courts also have determined that “[i]n addition to creating a right to counsel in habeas proceedings themselves, § 51-296 creates a right to counsel in appeals therefrom.” Morgan v. Commissioner of Correction, 87 Conn. App. 126, 132, 866 A.2d 649 (2005); see also Gipson v. Commissioner of Correction, 257 Conn. 632, 651-52, 778 A.2d 121 (2001). It is evident that a proceeding on a petition for a new trial does not fall within the scope of any of the proceedings enumerated in § 51-296. Accordingly, we conclude that the petitioner does not possess a statutory right to appointed counsel pursuant to § 51-296.

Finally, we note that the petitioner also is not constitutionally entitled to court-appointed counsel. “[I]ndigent persons accused of a crime must be provided appointed counsel, Gideon [v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)]. But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings . . . .” (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). Accordingly, we conclude that the petitioner is not entitled to court-appointed counsel in this ancillary civil action on a petition for a new trial.

In denying the request for the appointment of counsel, the trial court in the present case noted that this is a civil action, that each of the petitioner’s previous requests for counsel had been denied and that the petitioner’s appeal appeared to lack merit. On the basis of our determination that the petitioner is not statutorily or constitutionally entitled to the appointment of counsel in the present case, notwithstanding his indigent status, we hold that the trial court did not abuse its discretion in denying the application for the appointment of counsel.

The motion for review is granted, but the relief requested therein is denied.

In this opinion the other judges concurred.

       General Statutes § 51-291 provides in relevant part: “The Chief Public Defender shall . . . (11) Maintain one or more lists of trial lawyers who may be available to represent persons in habeas corpus proceedings arising from criminal matters, or to represent juveniles in delinquency matters before the court, or to represent persons in other appropriate matters on a case by case basis, as needed, which lawyers shall be selected by a judge of the court before which the matter is to be heard.” (Emphasis added.)

       General Statutes § 51-293 (a) provides in relevant part: “(1) The [public defender services] commission shall appoint a public defender for each judicial district and a public defender who shall handle appellate matters .... (2) This section shall not prevent a judge of the Superior Court from appointing a special assistant public defender on a contractual basis for a temporary period of time in an appropriate case .... Whenever possible, any such appointment shall be made from a list of attorneys provided by the commission and submitted to the court by the office of the Chief Public Defender. . . .”

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .”

       The petitioner neither invokes nor provides an independent analysis under the state constitution. Accordingly, we limit our review in the present case to the federal constitution. See State v. Reyes, 81 Conn. App. 612, 614 n.2, 841 A.2d 237 (2004).

       Nothing in this opinion should be read to mean that the court could not have exercised its discretion to grant an application for appointment of appellate counsel. We hold only that under these circumstances the court’s denial was not an abuse of discretion.


author: FLYNN, C. J. MIHALAKOS, J.,

text:
    SUSAN ALEY v. WILLIAM ALEY
    (AC 26825)
    Flynn, C. J., and DiPentima and Mihalakos, Js.
    Submitted November 28, 2006
    officially released May 15, 2007

      John F. Morris, for the appellant (defendant).

      Howard M. Gould, with whom, on the brief, was Patricia J. Gillin, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant, William Aley, appealed from the judgment of the trial court dissolving his marriage to the plaintiff, Susan Aley. On appeal, the defendant claimed that the court (1) improperly proceeded to judgment in his absence, without adequate notice to him or an opportunity to be heard, (2) lacked jurisdiction to order a certain home equity payment obligation to be characterized as spousal support and nondis-chargeable in bankruptcy and that the home equity order lacked clarity, and (3) improperly entered certain financial orders without evidentiary support. In Aley v. Aley, 97 Conn. App. 850, 908 A.2d 8 (2006) (Aley I), we addressed the defendant’s first two claims and found them to be without merit. On his third claim, while retaining jurisdiction over the appeal, we remanded the matter to the trial court with direction to articulate its findings as to the value of the parties’ marital home and the defendant’s gross and net earnings. After giving the parties the opportunity to file supplemental briefs, we now address the merits of the defendant’s third claim and agree in part with the defendant’s claim that the court improperly entered certain financial orders without evidentiary support. Accordingly, the judgment is reversed as to the child support related orders only, and the case is remanded for a new hearing on these issues.

The following facts are relevant to our resolution of the defendant’s claim on appeal. The defendant failed to attend the parties’ marital dissolution hearing because he was on vacation. The plaintiff testified at the hearing and submitted an updated financial affidavit, along with her claims for relief in which she set forth her proposed orders. The defendant had an affidavit on file with the court that was approximately three months old. After the hearing, the court ruled orally in open court that it was adopting paragraphs one through twelve, inclusive, of the plaintiffs claims for relief, making them the orders of the court. The court granted the dissolution and awarded the parties joint legal custody of their minor child and awarded the plaintiff primary physical custody. The court, by adopting the remaining paragraphs of the plaintiffs claims for relief, entered other financial orders for asset distribution and payment obligations, making no explicit findings underlying those orders. This appeal followed.

On appeal, the defendant claims that the court improperly entered “financial orders for asset distribution and payment obligations when no evidence supporting the values, expenses, and ability to pay by the obligor was presented.” Specifically, he raises five claims of evidentiary insufficiency, arguing that the court had no evidence regarding: (1) the value of the marital home; (2) the mortgage payments due on the home; (3) the defendant’s income, other than his financial affidavit; (4) his insurability or the availability and cost of life insurance; and (5) the cost of medical insurance premiums for the minor child. For purposes of our analysis, we group these claims into two categories: claims one and two fall under the property distribution orders, and claims three, four and five fall under the child support related orders. We disagree with the defendant’s claims regarding the property distribution orders, but we do agree that the court’s finding regarding the defendant’s income was without evidentiary support and, therefore, reverse the judgment of the trial court regarding the child support related orders and remand the case for a new hearing on these issues.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 843, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Although “[i]t is true that often [t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other,” this is not always the case, especially where “[t]he finances of the parties [are] not complicated.” (Internal quotation marks omitted.) Cuneo v. Cuneo, 12 Conn. App. 702, 710, 533 A.2d 1226 (1987). “Every improper order . . . does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999); see Lowe v. Lowe, 47 Conn. App. 354, 358, 704 A.2d 236 (1997) (reversing order of postmajority support but upholding alimony order); Main v. Main, 17 Conn. App. 670, 676, 555 A.2d 997 (reversing child support order while upholding all remaining financial orders), cert. denied, 211 Conn. 809, 559 A.2d 1142 (1989); Zern v. Zern, 15 Conn. App. 292, 297, 544 A.2d 244 (1988) (reversing judgment only as to support orders, holding that “court’s division of the parties’ assets was distinct and, on the facts of [that] case, separable from its determination of alimony and child support”); Cuneo v. Cuneo, supra, 709-11 (reversing orders regarding division of property but upholding orders regarding alimony and support). With these principles in mind, we review the merits of the defendant’s claims.

I

The defendant claims that the court had no eviden-tiary support for its findings related to the value of the marital home or the mortgages due on the home, and, therefore, its property distribution orders were improper. We do not agree.

In Aley I, we directed the trial court, in part, to articulate its findings as to the fair market value of the parties’ house. In response, the court articulated, in relevant part: “With regard to the fair market value of the house, the court used the defendant’s valuation contained in his financial affidavit filed in court on April 26, 2006, of $129,750.” A careful review of the defendant’s financial affidavit reveals that he did, in fact, list the value of the house at $129,750. The plaintiffs affidavit listed the value as “unknown.” Certainly, it was within the sound discretion of the court to credit the value listed in the defendant’s affidavit. As our Supreme Court has explained: “An ‘affidavit’ is a sworn ‘declaration of facts’ Nizzardo v. State Traffic Commission, 259 Conn. 131, 164, 788 A.2d 1158 (2002); upon which the court may properly base its financial orders. Ashton v. Ashton, 31 Conn. App. 736, 750, 627 A.2d 943 (court “could properly base its financial orders on the information provided to it in [one party’s] financial affidavit”), cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). Accordingly, we find no merit to this assertion.

As to the evidence regarding the mortgages due on the home, a review of the transcript and the financial affidavits reveals that the court had evidence regarding these values, albeit scant evidence. On his financial affidavit, the defendant listed the home mortgage at $139,000. The plaintiff listed it as $100,000.

At trial, the plaintiff explained that there was a first mortgage in the approximate amount of $97,000, which was held by Citizens Bank, and that she wanted to hold the defendant harmless as to that loan. She further testified that there also was a home equity line of credit in the approximate amount of $24,000, for which she wanted the defendant to assume responsibility. When questioned by the court, the plaintiff testified that the money from the line of credit had been used by the defendant to pay for him to attend college. The plaintiff also testified that the defendant had a sizeable retirement account, which was listed on his affidavit at $48,787.02, for which she was making no claim in exchange for the home.

On the basis of this evidence, the court ordered that the defendant quitclaim his interest in the home to the plaintiff and that he pay the $24,000 home equity line of credit. It further ordered that the plaintiff hold the defendant harmless as to the $97,000 first mortgage. We conclude that the court had sufficient evidence on which to base these orders.

II

The defendant also claims that the court had no evidence to support its orders regarding the care and support of his minor daughter. Specifically, he argues that the court had no evidence regarding the defendant’s income, other than his financial affidavit, and had no evidence of his insurability or as to the availability and cost of life insurance, or as to the cost of medical insurance premiums for the minor child. We agree that there was no evidence to support the court’s finding as to the defendant’s income, and, because these matters are closely interwoven, we reverse all child support related orders and remand the matter for a new hearing on these issues.

In Aley I, we directed the trial court, in part, to articulate its findings as to the defendant’s gross and net earnings. In response, the court articulated, in relevant part: “As to the gross and net income of the defendant, the court found that the defendant had a gross income of $904 per week and a net income of $676 per week per the guideline worksheet, again, after making specific inquiry of the plaintiffs counsel, who represented to the court that this was based on a ‘pay stub’ that was provided to her by the defendant.”

Practice Book § 25-30 sets forth the statements that each party is responsible for filing during a dissolution or child support matter, which provides in relevant part: “(a) ... at the time a dissolution of marriage ... is scheduled for a hearing, each party shall file, where applicable, a sworn statement ... of current income, expenses, assets and liabilities. . . . Unless otherwise ordered by the judicial authority, all appearing parties shall file sworn statements within thirty days prior to the date of the decree. Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement.

“(b) ... at least ten days prior to the date of the final limited contested or contested hearing, the parties shall file with the court and serve on each appearing party written proposed orders.

“(c) The written proposed orders shall be comprehensive and shall set forth the party’s requested relief including, where applicable, the following: (1) a parenting plan; (2) alimony; (3) child support; (4) property division; (5) counsel fees; (6) life insurance; (7) medical insurance; and (8) division of liabilities.

“(d) The proposed orders shall be neither factual nor argumentative but shall, instead, only set forth the party’s claims.

“(e) Where there is a minor child who requires support, the parties shall file a completed child support and arrearage guidelines worksheet at the time of any court hearing concerning child support; or at the time of a final hearing in an action for dissolution of marriage . . . .”

“General Statutes § 46b-215b requires the court to consider and to apply the child support and arrearage guidelines (guidelines) to all determinations of child support amounts. Section 46b-215a-2a of the guidelines, as embodied in the Regulations of Connecticut State Agencies, provides procedures for using the child support worksheet (worksheet) to determine the presumptive child support payments and the health care coverage contributions. The presumptive child support payments and health care coverage contributions indicated by the guidelines should be identical to the court’s orders for such payments and contributions by the noncustodial parent to the custodial parent pursuant to § 46b-215a-3 of the guidelines unless application of the guidelines is inequitable or inappropriate under the circumstances. ... If the court deviates from the presumptive support amount, it must determine and state on the record (1) the presumptive amount of the weekly support order recommended by the guidelines and (2) specific findings that application of the presumptive support guidelines is inequitable or inappropriate. . . . The Supreme Court has determined that stating these findings on the record will facilitate appellate review.” (Citations omitted.) Tracey v. Tracey, 97 Conn. App. 122, 126-27, 902 A.2d 729 (2006).

In this case, the defendant did not attend the dissolution hearing, nor did he submit an updated financial affidavit, proposed orders or a child support guidelines worksheet as required. The defendant’s April 13, 2005 sworn financial affidavit listed his gross weekly income at $846.16 and his net weekly income at $657.16. In contrast, on the plaintiffs child support guidelines worksheet, her attorney listed the defendant’s gross weekly income at $904 and his net weekly income at $676. This worksheet is not a sworn document but bears the typewritten name of the preparer, in this case, the plaintiffs counsel. The plaintiff offered no testimony regarding the defendant’s income, nor was any documentary evidence submitted to support a finding contrary to the amounts listed on the defendant’s April 13, 2005 sworn financial affidavit. Although we recognize that the guidelines create a legal presumption as to the amount of child support payments; see id., 126-27; the figures going into that calculation on the worksheet must be based on some underlying evidence. Here, when questioned by the court as to how she obtained the guideline worksheet figures, the plaintiffs counsel represented that the defendant had a financial affidavit on file and that he had provided counsel with a recent “pay stub.” This “pay stub,” however, was not in evidence, nor were the figures from the worksheet supported by any other evidence, testimonial or otherwise. Furthermore, they were not consistent with the defendant’s sworn financial affidavit.

This court, as well as our Supreme Court, repeatedly has stated that representations of counsel are not evidence. See, e.g., State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993), overruled in part on other grounds by Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 309, 852 A.2d 703 (2004); Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Baker v. Baker, 95 Conn. App. 826, 832, 898 A.2d 253 (2006); Irizarry v. Irizarry, 90 Conn. App. 340, 345, 876 A.2d 593 (2005); Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001); Tevolini v. Tevolini, 66 Conn. App. 16, 26, 783 A.2d 1157 (2001); Constantine v. Schneider, 49 Conn. App. 378, 397, 715 A.2d 772 (1998); Martin v. Liberty Bank, 46 Conn. App. 559, 562-63, 699 A.2d 305 (1997). The court’s determination of child support and child support related orders must be based on evidence and not on mere representations of counsel. In this case, the court had figures that had been provided by the defendant in a sworn document, and, although the court was not bound to accept those figures, a contrary finding had to be based on proper evidence and not on mere representations of counsel contained in an unsworn document.

Although the discrepancy in the amount is minor, with the net income contained in the defendant’s financial affidavit at $657.16 and in the guideline worksheet at $676, amounting to a difference of less than 3 percent, the guideline worksheet figures used by the court in formulating its child support related orders had no evi-dentiary basis. Accordingly, we must remand the matter for a new hearing.

The judgment is reversed as to the child support related orders only and the case is remanded for a new hearing on those issues. In all other respects, the judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

MIHALAKOS, J.,

dissenting in part. My dissent, as reported in Aley v. Aley, 97 Conn. App. 850, 908 A.2d 8 (2006) (Mihalakos, J., dissenting in part) (Aley I), concerned two matters, one of which the majority has adopted in this decision, relative to the valuation of the marital home. I affirm the second portion of my prior dissent, concerning the trial court’s determination of the net and gross income of the defendant, William Aley. See id., 857. The majority in Aley I remanded both of these matters for articulation by the court. Id., 855. After remand, the majority concluded that there was sufficient evidence for the court to determine the value of the marital home. The only issue remaining, therefore, was whether there was sufficient evidence to determine the net and gross income of the defendant.

“[I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App. 750, 765, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). In this case, although the defendant submitted a financial affidavit, which was several months old, he failed to show up for the dissolution hearing without giving notice to the court or requesting a continuance, and he never submitted a child support guidelines worksheet as required. The plaintiff, Susan Aley, however, did submit a guidelines worksheet. The majority has recognized that the guidelines worksheet creates a legal presumption as to the amount of child support payments. Because the defendant did not attend the hearing, there was no testimony from him with regard to the representations in his financial affidavit or the representations in the plaintiffs guidelines worksheet.

This court has concluded that “a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines . . . .” (Internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 122, 129, 902 A.2d 729 (2006). In the present case, the plaintiff submitted a guidelines worksheet as required. The defendant, having failed to submit a guidelines worksheet, now cannot argue that the court should not have relied on the plaintiffs guidelines worksheet as an evidentiary basis for its child support orders.

The majority concludes that because the pay stub, on which the plaintiffs guidelines worksheet was based, was not in evidence, a remand is necessary with regard to the court’s child support orders. The court, however, was free to accept or reject the amount of child support called for in the plaintiffs guidelines worksheet. Additionally, the court was permitted to use the defendant’s financial affidavit as an evidentiary basis for the plaintiffs guidelines worksheet, and the record indicates that the court in fact did rely, in part, on the defendant’s affidavit when fashioning its child support orders. In its articulation, the court stated: “Based on the testimony of the plaintiff, the representations made by counsel, the financial affidavits in the file, the state of Connecticut guideline worksheet provided and considering the relevant statutory provisions of chapter 815j of the Connecticut General Statutes, the court entered orders . . . .” (Emphasis added.)

Finally, the majority notes that the difference between the income listed in the defendant’s financial affidavit and the plaintiffs guidelines worksheet was $657.16 and $676, respectively, or less than 3 percent. If the defendant had submitted an updated financial affidavit with regard to his income, he would have had an opportunity to dispute this discrepancy. Having failed to take advantage of this opportunity, the defendant cannot claim now that the court’s child support orders had no evidentiary basis.

For the foregoing reasons, I would affirm the judgment of the trial court.

       The defendant withdrew his appeal from the court’s postjudgment award of attorney’s fees.

       The court further ordered, with respect to the marital residence, that the defendant pay or make satisfactory arrangements with the utility companies within twenty days of the date of judgment.

       The only testimony regarding child support calculations was as follows:
      “[The Plaintiffs Counsel]: And the two of you have agreed that he will pay child support in accordance with the child support guidelines. Is that correct?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: And I’ve computed that at $139 per week. Is that correct?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: And are you asking that the Court order that amount?
      “[The Plaintiff]: Please. Yes.”


author: HENNESSY, J.

text:
    KEVIN MCCOLL v. COMMISSIONER OF CORRECTION
    (AC 26907)
    DiPentima, Gruendel and Hennessy, Js.
    Argued February 21
    officially released May 15, 2007

      Stephanie L. Evans, special public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Kevin McColl, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court should have granted his petition for certification to appeal because he had received ineffective assistance of trial counsel. We dismiss the appeal.

The record sets forth the following facts and procedural history. After a trial to the jury, the petitioner was convicted of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a), one count of assault of a victim sixty years of age or older in the second degree in violation of General Statutes § 53a-60b and two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On January 7, 2000, the petitioner was sentenced to an effective term of confinement of twenty-eight years to serve. The petitioner directly appealed from the judgment of conviction to this court, claiming that (1) the evidence was insufficient to sustain his conviction on the assault and robbery counts, (2) the court improperly instructed the jury on “feet and footwear” as a dangerous instrument, (3) the court improperly denied his motion to suppress his confession as the fruit of an illegal entry or as involuntary, (4) the court improperly instructed the jury on intent when the crimes charged were specific intent crimes and (5) the constitutional prohibition against double jeopardy was violated when he was sentenced on two counts of robbery. We affirmed the judgment of the trial court. State v. McColl, 74 Conn. App. 545, 548, 813 A.2d 107, cert. denied 262 Conn. 953, 818 A.2d 782 (2003).

On January 6, 2005, the petitioner filed a second amended petition for a writ of habeas corpus, alleging that his conviction should be set aside due to ineffective assistance of trial counsel. In support of his claim, the petitioner argued that his trial counsel’s performance fell below the level of reasonable competence required of criminal defense attorneys because counsel (1) was inexperienced, (2) did not allow the petitioner to testify in his defense and (3) admitted the petitioner’s guilt during closing arguments. The petitioner claims that but for trial counsel’s acts and omissions, it is reasonably probable that he would not have been convicted of these crimes.

The habeas court denied relief, finding that the petitioner failed to meet his burden of proof. The petitioner now appeals. On appeal, the petitioner’s claim of ineffective counsel consists of two arguments. He claims that his trial counsel was ineffective (1) conceding the petitioner’s guilt during closing arguments without the petitioner’s prior knowledge or consent and (2) failing to permit the petitioner to testify in his defense because of counsel’s private conjectures that his client was guilty.

The threshold issue to determine, prior to appellate review of the merits of the dismissal of a habeas corpus petition, is whether the habeas court abused its discretion in denying the petition for certification to appeal. We conclude that it did not.

As an initial matter, we set forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. The petitioner must establish a clear abuse of discretion by demonstrating the existence of one of the criteria adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). These criteria are “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Id., 432; Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).

In order to determine whether the petitioner has demonstrated the existence of one of the Lozada criteria, we examine the validity of the petitioner’s initial habeas claim of ineffective assistance of counsel. In doing so, “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.) Vines v. Commissioner of Correction, 94 Conn. App. 288, 295, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).

The petitioner must satisfy the two requirements set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in order to establish ineffective assistance of counsel. First, “[t]he petitioner must . . . show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland v. Washington, supra, 689. The second part of the Strickland analysis requires that “[the petitioner] . . . show ... a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 856, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). “Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Vines v. Commissioner of Correction, supra, 94 Conn. App. 295-96.

The petitioner has not satisfied the Strickland requirements. Thus, his burden of proof for ineffective assistance of trial counsel has not been met. The petitioner’s testimony was the only evidence supporting the petitioner’s allegation that he wanted to testify on his behalf at trial. The court credited the attorney’s testimony over the testimony of the petitioner. The court found that “there was a paucity of proof supporting [the] allegations adduced at the habeas trial.” The court also determined that “while virtually all of the items in the petition allege failures on the part of the petitioner’s counsel to do something, there was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable strategies that should have been pursued and, more importantly, what would have happened had they done these things.” The court concluded that the petitioner did not prove his allegations of ineffective assistance of counsel, nor did he offer proof that he was prejudiced by counsel’s action or inaction.

Even if we assume arguendo that trial counsel’s strategy did fall below an objective standard of reasonableness, no prejudice to the petitioner resulted from the strategies employed by trial counsel. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, supra, 466 U.S. 686. The court found that “there was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable strategies that should have been pursued and, more importantly, what would have happened had they done these things.” Nonetheless, even if counsel’s action or inaction was less than perfect, it was not egregious enough to constitute denial of the petitioner’s sixth amendment right to counsel. Furthermore, the petitioner has not shown that the result of his criminal trial would have been different. The petitioner has offered no proof that he is burdened by an unreliable conviction; he merely asserts that he might be entitled to a new trial. We therefore conclude that the petitioner has failed to meet his burden of proof.

Upon review of the transcripts of the habeas proceedings and of the entire record, we cannot say that the court abused its discretion when it concluded that the petitioner failed to prove that he was a victim of ineffective assistance of counsel. Further, we conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, supra, 498 U.S. 432; Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). The petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal relative to his ineffective assistance of counsel claim was an abuse of discretion. See Simms v. Warden, supra, 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       Although the petitioner enumerated a plethora of issues relating to the alleged ineffectiveness of his trial counsel, the habeas court determined that these three issues adequately set forth the petitioner’s claims.

       We note that there are requisite findings of fact that the petitioner knew of the strategy employed by his counsel. Furthermore, there is an inadequate record regarding the petitioner’s desire to testify, that is, there is no record that he asked his attorney if he could testify and was refused his request.


text:
    NATHAN PRIMUS, TRUSTEE OF THE PRIMUS FAMILY TRUST v. CONSERVATION COMMISSION OF THE TOWN OF SOUTHINGTON ET AL.
    (AC 27233)
    SchaUer, McLachlan and Rogers, Js.
    Argued February 22
    officially released May 15, 2007

      Bridget C. Gallagher, for the appellant (plaintiff).

      David F. Sherwood, with whom was John T. Nugent, former assistant town attorney, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Nathan Primus, trustee of the Primus family trust, appeals from the judgment of the trial court dismissing his appeal from the decision of the conservation commission of the town of South-ington (commission), denying his application for an inland wetlands permit. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction to hear his appeal. We disagree and affirm the judgment of the trial court.

The following factual and procedural background is necessary for our resolution of the plaintiffs appeal. On March 1,2004, the plaintiff filed an amended application for an inland wetlands permit with respect to property located in Southington. The plaintiff sought to develop the subject property into “a multi-family residential complex designated as a set-aside affordability housing development under . . . General Statutes § 8-30g . . . .” After a public hearing, the commission unanimously denied the plaintiffs application.

The plaintiff commenced an appeal against the commission. The summons prepared by the plaintiffs attorney instructed the marshal to serve legal process on the chairperson of the commission; the commissioner of environmental protection, through the attorney general; and the town clerk. The marshal’s return of service, however, indicated that on April 27, 2004, he served process by leaving two copies of the citation, complaint and recognizance with surety with the town clerk. The marshal also served the commissioner of environmental protection through associate attorney general Gregory T. D’Auria. The chairperson of the commission, however, was not served with legal process.

On January 18,2005, the defendants moved to dismiss the appeal for lack of subject matter jurisdiction. The defendants argued that the service of process was defective because it failed to comply with General Statutes (Rev. to 2003) § 22a-43, which required service on the chairman of the commission. Specifically, the defendants reasoned that § 22a-43 incorporates by reference the requirements of General Statutes (Rev. to 2003) § 8-8 (b), which, in turn, references § 8-8 (f). Subsection (f) of § 8-8 provides in relevant part that “[service of legal process . . . shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. . . .”

The plaintiff responded that he had complied with General Statutes (Rev. to 2003) § 52-57 (b) (5) by serving two copies with the clerk of the town, and, therefore, the service of legal process was proper. On September 6, 2005, the court issued a memorandum of decision granting the defendants’ motion to dismiss. Specifically, the court concluded that § 22a-43 required service on the chairperson of the commission. Accordingly, the failure to serve the chairperson deprived the court of subject matter jurisdiction. This appeal followed.

After the parties had filed their appellate briefs, our Supreme Court issued its decision in Vitale v. Zoning Board of Appeals, 279 Conn. 672, 904 A.2d 182 (2006). In Vitale, the dispositive issue was “whether, on July 15, 2003, the service of legal process for an appeal from a decision of a municipal zoning board was governed by § 8-8 (f) or ... § 52-57 (b) (5) . . . .” Id., 674. At the outset of its analysis, the court noted that it had “recently affirmed the long-standing principle that failure to comply with the statutory requirements for service of legal process on a zoning board in a zoning appeal will deprive the court of subject matter jurisdiction.” (Internal quotation marks omitted.) Id., 678. It then stated that Public Acts 2004, No. 04-78 (P.A. 04-78), was determinative of the question of whether § 8-8 (f) or § 52-57 (b) (5) governed the service of process of zoning appeals on July 15, 2003. Vitale v. Zoning Board of Appeals, supra, 678. “By its express terms, P.A. 04-78 applies the service requirements of § 8-8 (f) to zoning appeals taken prior to October 1, 2004, and the service requirements of § 52-57 (b) (5) to zoning appeals taken after October 1,2004.” (Emphasis added.) Id., 679.

We conclude that the holding and reasoning set forth by our Supreme Court in Vitale controls this case. The appeal to the Superior Court from the decision of the commission was served on April 27, 2004. Accordingly, P.A. 04-78 dictates that service of process should have been made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board and the clerk of the municipality. See id. As in Vitale, the plaintiffs marshal complied only with the requirements of § 52-57 (b) (5) by leaving two copies of the appeal papers with the town clerk. The marshal did not leave any copy of the appeal papers with the chairman or clerk of the commission, thereby failing to comply with the statutory requirements for valid service of process. The court properly concluded that this failure resulted in a lack of subject matter jurisdiction.

The judgment is affirmed.

       On December 30, 2004, two abutting property owners, Darryl T. Upson and Joseph Rosia, successfully moved to intervene as party defendants and subsequently moved to dismiss the plaintiffs appeal. We therefore refer to Upson and Rosia as the defendants.

       General Statutes (Rev. to 2003) § 22a-43 provides in relevant part: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45a, inclusive . . . may, within the time specified in subsection (b) of section 8-8, from the publication of such regulation, order, decision or action, appeal to the superior court .... Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. ...” (Emphasis added.)

       General Statutes (Rev. to 2003) § 52-57, as amended by Public Acts 2003, No. 03-278, § 126, provides in relevant part that “[pjrocess in civil actions against the following-described classes of defendants shall be served as follows ... (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of the general statutes, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . . .”

       In his statement of issues on appeal, the plaintiff claimed that the court (1) failed to determine that service was proper under General Statutes § 52-57, as amended by Public Acts 2003, No. 03-278, (2) improperly applied the provisions of General Statutes (Rev. to 2003) § 23a-43, as amended by P.A. 04-78, (3) failed to interpret liberally the procedures set forth in General Statutes § 8-8, as provided in § 8-8 (p) and (4) improperly concluded that the service requirements set forth in § 23a-43 were mandatory rather than directory.

       “It is axiomatic that we are bound by our Supreme Court precedent.” (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).

       As we noted previously, the commissioner of environmental protection also was served through associate attorney general Gregory T. D’Auria.

       In Vitale, our Supreme Court stated: “We note that in its memorandum of decision dismissing the appeal, the trial court determined that [General Statutes] § 8-8 (q), one of the savings provisions contained in § 8-8, was unavailable to the plaintiffs in the present case because they had not attempted to correct the service defect by serving the chairperson or clerk of the defendant within fifteen days of receiving notice of the defective service by way of the marshal’s return. We disagree. Section 8-8 (q) provides in relevant part: If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. . . . The savings provision codified at § 8-8 (q) is a remedial provision that warrants a broad construction. Cf. Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004) ([w]e have consistently held that our accidental failure of suit statute . . . [General Statutes] § 52-592, is remedial and is to be liberally interpreted). Accordingly, § 8-8 (q) is available to a plaintiff upon any determination by a court that service was defective. Section 8-8 (q) therefore is available to the plaintiffs, should they choose to invoke it, upon the determination by this court that the service of process in this matter was insufficient because it failed to comply with P.A. 04-78.” (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, supra, 279 Conn. 681 n.9.


author: FOTI, J.

text:
    GREATER BRIDGEPORT TRANSIT DISTRICT ET AL. v. CITY OF BRIDGEPORT ET AL.
    (AC 26723)
    Graendel, Harper and Foti, Js.

      Argued February 7
    officially released May 15, 2007

      Thomas J. Weihing, with whom, on the brief, were John T. Bochanis and Janice Rosenfeld, legal intern, for the appellants (plaintiffs).

      Arthur C. Laske III, assistant city attorney, for the appellee (named defendant).

      Stuart M. Katz, for the appellee (defendant Greater Bridgeport Transit Authority).

      Brian W. Smith, for the appellees (defendant town of Stratford et al.).

      Noel R. Newman, for the appellees (defendant town of Fairfield et al.).
   Opinion

FOTI, J.

The plaintiffs, the Greater Bridgeport Transit District (transit district) and five former members of its board of directors, appeal from the judgment of the trial court in favor of the defendants, numerous municipal entities and officials. On appeal, the plaintiffs claim that the court improperly determined that (1) membership on the transit district’s board of directors is not a constitutionally protected property interest and (2) the defendant municipalities had complied with all statutory requirements when they withdrew from the transit district. We affirm the judgment of the trial court.

In late 1998, the transit district ceased to exist when all four of its municipal members, Bridgeport, Fairfield, Stratford and Trumbull, withdrew and established a new entity known as the Greater Bridgeport Transit Authority (transit authority). The transit authority agreed to assume all of the transit district’s assets and liabilities. The members of the transit district’s board of directors, who had been serving four year terms and received no salary or benefits for their service, were not appointed to the board of directors of the transit authority. The plaintiffs then filed a complaint against the defendants, claiming that the defendants wrongfully had terminated the transit district’s directors and failed to satisfy their statutory obligations to the transit district. The plaintiffs also sought to enjoin the defendants from forming the transit authority. After a trial to the court, the court rejected the plaintiffs’ claims and denied their request for injunctive relief. This appeal followed.

I

The plaintiffs first claim that the court improperly determined that membership on the transit district’s board of directors is not a constitutionally protected property interest. We disagree.

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001).

In support of their claim that membership on the transit district’s board of directors is a constitutionally protected property interest, the plaintiffs point out that General Statutes § 7-273c prescribes a four year term for the directors of a transit district. Section 7-273c, however, does not entitle those directors to serve their entire four year term. The plaintiffs also rely on the charters of three of the transit district’s municipal members. Those charters include provisions regarding the removal of appointed officers for cause, but none of those provisions apply to the transit district’s directors because they were not municipal employees. The final source on which the plaintiffs base their claim is General Statutes § 8-43, which provides in relevant part that a commissioner of a housing authority may be removed “for inefficiency, neglect of duty or misconduct in office . . . .” That statute clearly does not apply to the directors of a transit district.

We conclude that the plaintiffs have failed to identify any sources that would support a legitimate claim of entitlement to membership on the board of directors of a transit district. The court correctly determined that the plaintiff directors were not deprived of a constitutionally protected property interest when the transit district ceased to exist.

II

The plaintiffs next claim that the court improperly determined that the defendant municipalities had complied with all statutory requirements when they withdrew from the transit district. We disagree.

The plaintiffs focus on General Statutes § 7-273b (f), which provides: “Any municipality included in the [transit] district may withdraw therefrom if the legislative body thereof votes to do so. In such case the board of directors of the district, including the members chosen from the withdrawing municipality, shall determine the share of the district’s expenses and obligations remaining due from the municipality. The municipality shall pay or secure such amount to the district before such withdrawal shall become effective.”

Although the transit authority signed an agreement in which it assumed all of the transit district’s assets and liabilities, the plaintiffs argue that that agreement was ineffective because the transit district’s board of directors did not “determine the share of the district’s expenses and obligations remaining due from [each] municipality. . . .” General Statutes § 7-273b (f). We are unpersuaded by that argument because the agreement signed by the transit authority obviated the transit district’s determination of each municipality’s share of the remaining expenses and obligations. Furthermore, the transit district’s board of directors authorized its interim transit manager to negotiate that agreement with the transit authority. The plaintiffs’ final argument is that the agreement was insufficient to “secure” the transit district’s remaining expenses and obligations pursuant to § 7-273b (f). We reject that argument because the transit authority agreed to assume all of the transit district’s assets and liabilities, and there is no evidence that the transit authority failed to act in accordance with its agreement after the transit district ceased to exist. The court properly determined that the defendant municipalities had complied with all statutory requirements when they withdrew from the transit district.

The judgment is affirmed.

In this opinion the other judges concurred.

       The five former members of the transit district’s board of directors who are plaintiffs in this case are Constantine Chagares, Morgan Kaolian, Raul Laffitte, Wilfred Murphy and Lee Scarpetti.

       The municipal entities and officials who are defendants in this case and parties to this appeal are the city of Bridgeport; the town of Fairfield; Kenneth Flatto, the first selectman of Fairfield; the town of Stratford; the Greater Bridgeport Transit Authority, the successor organization to the plaintiff transit district; and Ronald Dodsworth, the former general manager of the transit district. The following municipal officials are defendants in this case but not parties to this appeal: Joseph Ganim, the former mayor of Bridgeport; Mark Barnhart, the former town manager of Stratford; and Debbie Rose, the former chairperson of the Stratford town council.


text:
    DANNY BEVERLY v. COMMISSIONER OF CORRECTION
    (AC 27146)
    Schaller, Rogers and Lavine, Js.
    Argued February 22
    officially released May 15, 2007

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      Christopher T. Godialis, senior assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Danny Beverly, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. Following that denial, the court granted the petitioner’s request for certification to appeal. The petitioner claims that the court improperly denied the petition because he received ineffective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the appeal. The petitioner was convicted after a jury trial of manslaughter in the first degree with a firearm, assault in the first degree and carrying a pistol or revolver without a permit. Thereafter, the court found that the petitioner had used a firearm in the commission of a class B felony in violation of General Statutes § 53-202k and enhanced his sentence accordingly. He received a total effective sentence of fifty years imprisonment. The petitioner’s conviction was upheld on appeal. State v. Beverly, 72 Conn. App. 91, 95, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).

In an amended petition for a writ of habeas corpus filed July 12,2005, the petitioner alleged that he received ineffective assistance of counsel partly as a result of the failure of his trial counsel, Donald D. Dakers, to remove two potentially biased jurors. On August 24, 2005, the court denied the petition, concluding that Dakers had provided “quality representation.” It thereafter granted certification to appeal, and this appeal followed. Additional facts will be set forth as necessary.

“Our standard of review in a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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.) Griffin v. Commissioner of Correction, 97 Conn. App. 200, 202, 903 A.2d 273, cert. denied, 280 Conn. 922, 908 A.2d 543 (2006).

“The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 92 Conn. App. 534, 536, 885 A.2d 1268 (2005), cert. denied, 277 Conn. 903, 891 A.2d 2 (2006).

The petitioner claims that the court improperly concluded that he failed to prove his claim of ineffective assistance of counsel with respect to the selection of the jury. He argues that Dakers’ decisions to accept jurors R and L were not objectively reasonable and that he was prejudiced as a result.

In support of his claim, the petitioner refers to several responses made by R and L during their voir dire examinations. Specifically, R stated that he “wouldn’t trust . . . totally” someone who sold or used narcotics and that any drug use by the petitioner on the night in question “would cause [him] to feel that [the petitioner was] guilty right away . . . [because drugs] impair judgment . . . .” In response to a question as to whether he believed that the petitioner would be more likely to have committed the crime because he is a black man, R answered, “No. . . . It’s his environment. It’s not his fault.” L indicated that it would be difficult for her to be fair to the petitioner if a gun was involved in the case because she had such strong feelings concerning guns. She subsequently stated, however, that she would need to hear the evidence before finding the petitioner guilty.

At the habeas hearing, Dakers explained his reasons for accepting the two jurors. He testified that R’s statements as to drug use did not concern him considering that R had a prior drug arrest, some of the state’s witnesses were drug dealers and R had answered that he would be able to follow an instruction from the court as to the effect of intoxication. Dakers also stated that he believed that R would be a good juror for the defense because he was unable to distinguish between proof beyond a reasonable doubt and proof to an absolute certainty. With respect to his acceptance of L, Dakers testified that he chose her knowing that the state’s essential witnesses were convicted felons because she had indicated that a witness’ credibility could be undermined by a prior felony conviction.

In its memorandum of decision, the court determined that Dakers’ decisions to accept the two jurors were tactical decisions and that it was entirely too speculative to presume that either of the jurors would have been removed for cause as a result of a challenge by Dakers or that, if they had been removed, the result of the trial would have been different.

The court evaluated all of the testimony and determined that the petitioner failed to meet his burden of proving both of the Strickland prongs. We agree. To satisfy the first prong of Strickland, “the petitioner must prove, under all the circumstances existing at the time of the trial, that the representation fell below an objective standard of reasonableness, and he must also overcome the presumption that alleged ineffective assistance was not the result of sound trial strategy.” Crump v. Commissioner of Correction, 68 Conn. App. 334, 337, 791 A.2d 628 (2002). As the habeas court found, the decisions to accept R and L were guided by professional judgment; Dakers carefully considered the possible harm as well as the potential benefit of selecting each juror. We consistently have declined to second-guess such decisions. See, e.g., Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 802, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004); Ostolaza v. Warden, 26 Conn. App. 758, 776-77, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). Accordingly, this claim must fail. We therefore do not analyze the petitioner’s claim under the prejudice prong. See Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991).

The judgment is affirmed.

       See General Statutes § 52-470 (b).

       The petitioner also alleged that he received ineffective assistance from his appellate counsel and that the trial judge made various errors that adversely affected his right to a fair trial. The petitioner’s allegations against his appellate counsel were withdrawn with prejudice. The habeas court further found that the petitioner was procedurally defaulted from raising his claims against the trial judge, and the petitioner has not appealed from this determination.

       To protect the identities and privacy interests of the jurors, we refer to them by their first initials. See, e.g., State v. Peeler, 267 Conn. 611, 620 n.9, 841 A.2d 181 (2004).