author: SHEA, J.

text:
    PB REAL ESTATE, INC. v. DEM II PROPERTIES ET AL.
    (AC 17698)
    Schaller, Ilennessy and Shea, Js.
    Argued June 9
    officially released October 13, 1998

      Edward J. Botwick, for the appellant (Botwick & Kurzawa, LLC).

      Maria K. Tougas, for the appellee (plaintiff).
   Opinion

SHEA, J.

The Connecticut Limited Liability Company Act, General Statutes §§ 34-100 to 34-242, inclusive, was adopted in 1993 and is generally similar to the model act promulgated in 1995 by the Uniform Laws Commissioners. “The allure of the limited liability company is its unique ability to bring together in a single business organization the best features of all other business forms—properly structured, its owners obtain both a coiporate-styled liability shield and the pass-through tax benefits of a partnership.” Uniform Limited Liability Company Act, prefatory note, 6A U.L.A. 426 (1995). The central issue in this appeal is the extent to which that liability shield protects the interest of a member of a limited liability company against a judgment creditor when the basis for the judgment is an obligation unrelated to the activities of the company. Under the circumstances of this case, we conclude that it raises no barrier to the satisfaction of such a judgment from the member’s interest in the company.

After obtaining a deficiency judgment resulting from a mortgage foreclosure against the defendants, Edward J. Botwick, David J. Kurzawa and DEM II Properties, the plaintiff, PB Real Estate, Inc., applied, pursuant to General Statutes (Rev. to 1995) § 34-66 (l), for a charging order directed to Botwick & Kurzawa, LLC, a limited liability company (LLC) engaged in the practice of law. The plaintiff was attempting to satisfy the judgment from any payments becoming due to the individual defendants, each of whom owns one half of the LLC. The trial court granted the application and directed the LLC to pay to the plaintiff “present and future shares of any and all distributions, credits, drawings or payments due to the defendant [s] . . . until the judgment is satisfied in full . . . .” The order also directed the LLC to furnish to the plaintiff for examination a copy of the LLC agreement and various financial information.

Pursuant to General Statutes § 52-356b (b), the plaintiff applied for a turnover order, claiming that the LLC had not fully complied with the charging order because the 1996 profit and loss statement indicated that a portion of the item designated on the statement as “legal staff’ expense appeared to have been paid to the defendants, contrary to the directive in the charging order that all distributions should be paid to the plaintiff. After an evidentiary hearing, the trial court granted the application for a turnover order. The LLC appeals from that order and raises two issues: (1) whether certain payments it made to the defendants, the sole owners, managers and members of the LLC, were properly the subject of a turnover order; and (2) whether the turnover order exceeds the scope of the statute authorizing such orders with respect to an LLC. We resolve both issues against the LLC and affirm the order of the trial court.

I

The trial court found that since the date of the charging order, the LLC had paid approximately $28,000 to each of two defendants. The court rejected the defendants’ claim that those payments were merely compensation for their services to the LLC as lawyers and were similar to the wages paid to other employees of the firm. The payments to the defendants were not shown in the “salary” column of the business record where payments to employees of the law firm are recorded, but were listed separately under their initials. The 1996 tax returns of the individual defendants indicated that they received little or no wages, but they reported significant earnings from self-employment. The trial court concluded that the payments made by the law firm to the defendants were “distributions” that were subject to the charging order.

The LLC does not dispute the underlying facts on which the trial court relied in reaching that conclusion. Even without such a concession, we conclude that the court’s evidence adequately supports the facts set forth in the court’s memorandum of decision. The LLC contends, nevertheless, that several provisions of the Connecticut Limited Liability Company Act preclude the conclusion that the challenged payments were distributions.

II

The LLC claims that the trial court incorrectly failed to limit the turnover order to the “rights of an assignee of the member’s limited liability company interest,” as provided by General Statutes § 34-171 in defining the rights of a judgment creditor. That statute provides in relevant part that “[t]o the extent so charged, the judgment creditor has only the rights of an assignee of the member’s limited liability company interest . . . .” The phrase, “limited liability company membership interest,” is defined by General Statutes § 34-101 (10) to mean “a member’s share of the profits and losses of the limited liability company and a member’s right to receive distributions of the limited liability company’s assets, unless otherwise provided in the operating agreement.” The operating agreement for the LLC provides that “all distributions . . . shall be made at such time as determined by the Manager,” who consists solely of the two owners. They maintain that they have authorized no distributions and, therefore, the court’s finding that the $28,000 each of them has received was a distribution is contrary to General Statutes § 34-158, which provides in part that “[a] member is entitled to receive distributions . . . from a limited liability company to the extent and at the times or upon the happening of the events specified in the operating agreement or at the times determined by the members or managers pursuant to section 34-142. ”

It defies common sense for the defendants, who jointly comprise the “Manager,” to contend that the payments they made to themselves from the assets of their LLC do not constitute distributions simply because they never voted to order such distributions. The operating agreement requires that distributions “shall be made at such time as determined by the Manager,” but does not specify any formal procedure for authorizing distributions. General Statutes § 34-142 (a) requires “the affirmative vote, approval or consent of . . . more than one-half by number of the managers” to decide matters connected with the LLC, but these are alternatives. The defendants can hardly deny that they approved or consented to the payments they received from the LLC, which they own and control. Neither § 34-142 (a) nor § 34-158, which authorizes distributions “at the times determined by the members or managers pursuant to section 34-142,” raises any barrier to the finding of the court that the payments to the defendants constituted distributions subject to the charging order they have disregarded.

Furthermore, the definition in § 34-101 (10) of a member’s limited liability company interest, which § 34-171 makes available for satisfaction of a judgment, includes “a member’s share of the profits and losses” of the company as well as “distributions of the . . . company’s assets . . . .” Although the defendants at trial presented a profit and loss statement for 1996 showing a net profit of only $23.44, that result was achieved only by treating the payments of $28,000 to each of them as expenses for wages. If those payments were neither distributions, as the defendants contend, nor wages, as the trial court found, they would have to be considered profits. The plaintiff claims that as an assignee of the defendants’ shares thereof, it would be entitled to satisfy its deficiency judgment from those profits even if the payments made to the defendants had not been approved in accordance with the operating agreement. The defendants contend, however, that General Statutes § 34-170 (a) (2), providing that “an assignment entitles the assignee to receive, to the extent assigned, only the distributions to which the assignor would be entitled” indicates otherwise. The trial court did not consider the issue of a possible inconsistency between that provision and the definition of a member’s interest in § 34-101 (10), nor shall we do so in view of our agreement with the court’s conclusion that the payments received by the defendants were distributions subject to the charging order.

The judgment issuing the turnover order is affirmed.

In this opinion the other judges concurred.

       The named defendant, DEM II Properties, is named as an appellant, in the docketing statement filed with this appeal. See Practice Book § 63-4 (a) (4). There is no indication, however, that it is aggrieved by the issuance of the turnover order, which is the subject of this appeal. No brief has been filed on behalf of this defendant. We refer in this opinion to Edward J. Botwick and David J. Kurzawa as the defendants.

       General Statutes (Rev. to 1995) § 34-66 (1) provides: “On due application to a competent court by any judgment creditor of apartner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require." This provision was repealed by No. 95-341 of the 1995 Public Acts, which became effective on July 1, 1997. The plaintiff’s motion for a charging order was granted on November 11, 1996.

         The trial court observed that the phrase, “distributions, credits, drawings or payments due” in the charging order may be broader than the definition of a member’s limited liability company interest in General Statutes § 34-101 (10), “a member’s share of the profits and losses of the limited liability company and a member’s right to receive distributions of the limited liability company's assets . . . .” The court restricted the scope of the turnover order to payments found to have been “distributions.”

       General Statutes § 52-356b (b) provides: “The court may issue a turnover order pursuant to this section, after notice and hearing or as provided in subsection (c), on a showing of need for the order. If the order is to be directed against a third person, such person shall be notified of his right pursuant to section 52-356c to a determination of any interest claimed in the property.”

       General Statutes § 34-171 provides: “On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the member’s limited liability company interest with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the member’s limited liability company interest. Nothing in sections 34-100 to 34-242, inclusive, shall be held to deprive a member of the benefit of any exemption provided by law applicable to such person’s limited liability company membership interest.”

       General Statutes § 34-101 (10) provides: “ ‘Limited liability company membership interest’ or ‘interest’ or ‘interest in the limited liability company’ means a member’s share of the profits and losses of the limited liability company and a member’s right to receive distributions of the limited liability company’s assets, unless otherwise provided in the operating agreement.”

       Article VIII, § 8.2, of the operating agreement provides: “Except as provided in Section 7.3 (c), all distributions of cash or other property shall be made to the Members pro rata in proportion to the respective Capital Interests of the Members on the record date of such distribution. [EJxcept as provided in Section 8.4, all distributions of Distributable Cash and property shall be made at such time as determined by the Manager. No Member shall have the right to demand and receive property other than cash irrespective of the nature of its Capital Contribution. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Members from the Company shall be treated as amount[s] distributed to the relevant Member or Members pursuant to this Section 8.2.”

       General Statutes § 34-142 (a) provides in relevant part that “the affirmative vote, approval or consent of . . . more than one-half by number of the managers, if management of the limited liability company is vested in managers, shall be required to decide any matter connected with the business or affairs of the limited liability company.”

       General Statutes § 34-158 provides: “Except as provided in sections 34-159 and 34-210, distributions of cash or other assets of a limited liability company shall be allocated among the members and among classes of members in the manner provided in the operating agreement. If the operating agreement does not so provide, the distributions shall be made on the basis of the value of the contributions made by each member to the extent they have been received by the limited liability company and have not been returned. A member is entitled to receive distributions described in this section from a limited liability company to the extent and at the times or upon the happening of the events specified in the operating agreement or at the times determined by the members or managers pursuant to section 34-142.”

       See footnote 8.


source: Caselaw Access Project

author: HENNESSY, J. SHEA, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANGEL OCASIO
    (AC 16474)
    Spear, Hennessy and Shea, Js.
    Argued March 17
    officially released October 13, 1998

      Neal Cone, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Angel Ocasio, appeals from the judgment of conviction of conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 2 la-277 (a) and violating the Corrupt Organizations and Racketeering Activity Act in violation of General Statutes § 53-395 (c). The defendant claims that the trial court improperly (1) accepted his guilty plea without ensuring that it was not the result of force or threats or promises apart from the plea agreement and (2) denied his motion to withdraw his guilty plea. We reverse the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On April 12,1995, the state filed a five count information to which the defendant pleaded not guilty. On May 22, 1996, the day that jury selection began, the state filed a fifteen count substitute information. On May 23, 1996, pursuant to a plea agreement, the state filed a substitute information charging the defendant with one count of conspiracy to sell narcotics in violation of §§ 21a-277 (a) and 53a-48, and one count of violating the Corrupt Organizations and Racketeering Activity Act in violation of § 53-395 (c), to which the defendant entered a plea of guilty.

The trial court canvassed the defendant, pursuant to Practice Book §§711 through 722, now §§ 39-19 through 39-28, and asked, “Is this plea voluntary?” to which the defendant stated, “Yes.” Further, the trial court informed the defendant of the impact of pleading guilty on his constitutional rights and then asked, “Is that what you want, sir?” to which the defendant responded, “Yes.”

The trial court accepted the defendant’s plea of guilty and found that it was “entered knowingly, intelligently and voluntarily, with a full understanding of the offenses charged, as well as the possible consequences thereof, and after adequate and effective assistance of counsel.”

On August 23, 1996, just prior to sentencing, the defendant made a second oral motion to withdraw his guilty plea. The defendant’s attorney advised the trial court that the basis for the request to withdraw the plea was that the defendant “was confused; he didn’t realize the consequences, apparently, of the plea at the time it was entered . . . [and] he feels that the pressure was a little too great. He feels that . . . there were other matters that were also impinging his reasons for making a knowing decision at the time.” The trial court denied this motion, finding that the court “has heard nothing ... to even permit an evidentiary hearing, much less grant an oral motion.”

The defendant claims that the trial court improperly accepted his guilty plea because it failed to ensure that his guilty plea was voluntary, as required by Practice Book § 39-20, formerly § 712. Specifically, the defendant claims that because the trial court failed to ensure that he was not “in any way threatened, coerced or pressured into pleading guilty,” the trial court did not strictly comply with § 712. The defendant argues that § 712 requires that the trial court ensure the following prior to accepting a guilty plea: First, that the plea is entered voluntarily and second, that the plea is not the result of force or threats or promises other than those associated with the plea agreement.

In response, the state argues that the rules of practice require merely that the trial court substantially comply with § 712. Accordingly, the state argues that the judgment should be affirmed because the trial court substantially complied with § 712 when the trial court asked the defendant, “Is this plea voluntary?” and, “Is that what you want, sir?” We disagree.

We first address the state’s argument that Practice Book § 39-20, formerly § 712, requires only substantial compliance under the controlling case law. It is true that both our Supreme Court and this court often rely on State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), for the proposition that “[a] defendant can voluntarily and understandingly waive these [constitutional] rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712.” In Badgett, however, the reference to § 712 is dicta because the opinion did not determine whether the plea was voluntary and not the result of threats or force. Badgett was concerned with determining the adequacy of the plea canvass where the trial court had neglected to explain to the defendant one of the items enumerated in Practice Book §711. See State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996); State v. Badgett, supra, 418; State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). Because “a case or a series of cases which merely mention or apply a statute without questioning its validity cannot serve as binding precedent on that issue. See Finn v. Planning & Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391 [1968]”; State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974); we must consider whether a substantial compliance standard applies to Practice Book § 712, now § 39-20.

Our Supreme Court has also used a “substantial compliance” standard in cases where it was addressing whether the trial court improperly denied the defendant’s motion to withdraw a plea under Practice Book § 721 (1), now § 39-27 (1). See State v. Greco, 216 Conn. 282, 287-88, 579 A.2d 84 (1990); State v. James, 197 Conn. 358, 361-62, 497 A.2d 402 (1985). The “substantial compliance” standard comports with the language of Practice Book § 721 (l) as it relates to Practice Book § 711, and is therefore appropriate when determining whether the mandates of Practice Book § 711 have been complied with. In this case, however, it is appropriate to determine whether the trial court improperly denied the defendant’s motion to withdraw the plea under Practice Book § 721 (2). To do so, we must determine whether the plea was voluntary, to wit, whether it was properly accepted pursuant to Practice Book § 712.

The defendant’s claim that Practice Book § 712 should be strictly complied with is supported by the case law. “Connecticut’s rules of practice sanction plea agreements within certain specified parameters. Such rules of criminal procedure are intended to safeguard the due process rights of an accused. Shorette v. State, 402 A.2d 450, 457 (Me. 1979). Penal statutes and criminal procedural rules are to be strictly construed in order to protect fundamental constitutional rights. State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981).” State v. Schaeffer, 5 Conn. App. 378, 382, 498 A.2d 134 (1985).

“Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant’s full understanding of what the plea connotes and of its consequences; Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]; the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights [implicated by the guilty plea]. State v. Badgett, supra, 200 Conn. 418. To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§ 711 [now § 39-19] and 712 [now § 39-20], which enumerate the responsibilities of the court in conducting the plea canvass.” (Internal quotation marks omitted.) State v. Domian, supra, 235 Conn. 686-87.

Section 39-20, formerly § 712, requires that the judicial authority ensure that the plea is voluntary. Specifically, Practice Book § 39-20, formerly § 712, provides: “Ensuring That the Plea Is Voluntary

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

The resolution of this appeal turns on the requirements of the rules of practice when applied under the rule of strict construction and whether the record supports the conclusion that these requirements were complied with. “ ‘The rules of statutory construction apply with equal force to Practice Book rules’ State v. Schaeffer, supra, 5 Conn. App. 384; therefore, it is appropriate for the court to look to the rules of statutory construction to determine the requirements of Practice Book § 712. The title shows that the purpose of that rule is to indicate what the court must do to ensure that the plea is voluntary. The first sentence mandates that the court shall not accept a plea of guilty without addressing the defendant personally and in open court and without making three determinations. The court shall determine (1) that the plea is voluntary, (2) that the plea is not the result of force or threats or of promises apart from a plea agreement, and (3) whether the defendant’s willingness to plead guilty results from discussions with the state and the defendant or his attorney.

“The use of the word shall, though significant, does not invariably create a mandatory duty .... Weiss v. Newtown, 4 Conn. App. 200, 203, 493 A.2d 273 (1985), quoting Tramontano v. Dilieto, [192 Conn. 426, 433-34, 472 A.2d 768 (1984)]. We determine whether a [rule of practice] is mandatory or directory by testing whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the [rule of practice] is mandatory. ... If, however, the [rule of practice] is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. ... In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987), quoting Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).” (Internal quotation marks omitted.) Brown v. Smarrelli, 29 Conn. App. 660, 663-64, 617 A.2d 905, cert. denied, 225 Conn. 901, 621 A.2d 284 (1993).

We are persuaded by the defendant’s argument that the language used by the trial court, “Is this plea voluntary?” would not have evoked a response from the defendant as to whether any promises had been made apart from the plea agreement. “When a defendant tenders a plea of guilty . . . one important responsibility of the court is to determine whether the plea is voluntary. Consistent with the Supreme Court’s standard as to what constitutes a voluntary plea, this means the court will inquire whether the tendered plea was the result of any threats or promises.” 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 20.4 (b), p. 639. Because the purpose of Practice Book § 712 is to ensure that a plea is voluntary and that it is not the result of threats or force, we hold that the use of the word “shall” in Practice Book § 712 is a “matter of substance” and is, therefore, mandatory.

“[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .” (Internal quotation marks omitted.) State v. Ayala, 222 Conn. 331, 346, 610 A.2d 1162 (1992). We therefore hold that Practice Book § 712 requires that the court ensure that the plea is not the result of force or threats or of promises apart from a plea agreement.

An examination of the record, including close scrutiny of the transcripts, reveals that the trial court failed to ask if the defendant’s guilty plea was “the result of force or threats or of promises apart from a plea agreement.” The trial court clearly inquired as to whether the plea was voluntary when it asked, “Is this plea voluntary?” and, “Is that what you want, sir?” There is nothing in the record that indicates that the trial court determined that the plea was not the result of force or threats or of promises apart from a plea agreement. To conclude that the trial court’s questions in this case adequately comport with the mandates of Practice Book § 712 would be to conclude that the phrase in it that reads, “and is not the result of force or threats or of promises apart from a plea agreement,” is insignificant and unnecessary. We decline to do so.

We conclude, under the facts of this case, that the trial court did not comply with the mandate of Practice Book § 712 and, therefore, that the trial court improperly denied the defendant’s motion to withdraw his pleas.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to withdraw his plea and for further proceedings according to law.

In this opinion SPEAR, J., concurred.

SHEA, J.,

dissenting. I disagree with the conclusion reached in the majority opinion that the judgment must be reversed because of the failure of the trial court to inquire further whether the plea was the result of force or threats or of promises apart from a plea agreement, after the defendant had responded affirmatively during the plea proceeding to the court’s question, “Is this plea voluntary?” That holding is based on the view that Practice Book § 712, now § 39-20, which provides that the court, before accepting a guilty plea, must determine, by addressing the defendant personally, “that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement,” requires strict compliance, unlike Practice Book § 711, now § 39-19, which requires only substantial compliance. I believe that the majority opinion departs significantly from precedent that has heretofore been regarded as controlling.

In considering the effect of the trial court’s failure to inform a defendant of the mandatory minimum sentence for the crime to which he had pleaded guilty, as required by Practice Book § 711 (2), our Supreme Court has declared that “that fact alone is not dispositive of the defendant’s constitutional claim. We must determine, instead, whether, in light of all of the circumstances evident from the record before us, the trial court’s failure to inform the defendant of the statutorily required minimum sentence rendered his guilty plea unknowing or involuntary.” State v. Domian, 235 Conn. 679, 687-88, 668 A.2d 1333 (1996). “A defendant can voluntarily and understandingly waive [his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers] without literal compliance with the prophylactic standards of Practice Book §§ 711 and 712.” State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “Not every deviation from the specific requirements of a Practice Book rule necessitates reversal.” State v. Suggs, 194 Conn. 223, 226-27, 478 A.2d 1008 (1984). “ [W]here there has been a substantial compliance with [Practice Book § 711], such that none of the defendant’s constitutionally protected rights has been infringed upon, the failure to comply with each and every requirement of [Practice Book § 711] does not automatically require the vacating of the defendant’s plea.” State v. Godek, 182 Conn. 353, 360, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).

Although the cases cited involve deviations from the script of Practice Book § 711 rather than Practice Book § 712,1 perceive no good reason to distinguish between them with respect to whether the applicable standard of compliance should be strict or substantial. Both provisions relate to the waiver by a defendant in a criminal case of significant constitutional rights.

The trial court accepted the defendant’s guilty plea in this case only after a lengthy and careful interrogation of the defendant concerning his understanding of each of the items set forth in Practice Book § 711, including the privilege against self-incrimination, trial by jury and confrontation of witnesses, which are characterized in Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), as the “core” constitutional rights that a defendant must waive before his guilty plea may be accepted. The trial court went far beyond the requirements of Practice Book §§ 711 and 712 in ascertaining from the defendant the circumstances involving his participation in the offenses charged and advising him of the consequences of his plea with respect to forfeiture of money seized by the police and possible revocation of his probation. The only deficiency was the court’s failure, after the defendant had responded affirmatively to the question whether his plea was voluntary, to inquire whether the plea was the result of force or threats or promises apart from a plea agreement. Although undoubtedly prophylactic, that additional inquiry is essentially redundant of the prior voluntariness inquiry pursuant to Practice Book § 712. In this case, it is reasonable to infer that the defendant would not have responded affirmatively to a further question about threats or promises, because no such claim was made when he moved to withdraw his plea in the trial court. I am not inclined to reverse a judgment simply on the ground of a technical deficiency in the acceptance of the guilty plea that the record in this case indicates had no impact on the defendant’s decision to plead guilty.

       The relevant portion of the colloquy was as follows:
      “The Court: And, again, have you had any difficulties in understanding the questions that I’ve asked you or in your giving the answers to those questions?
      “The Defendant: No, Your Honor, everything is okay.
      “The Court: And do you fully understand, Mr. Ocasio, that if I accept these guilty pleas . . . that you will not be permitted to withdraw these pleas, you’ll be sentenced accordingly, and you will have given up those constitutional rights that I have already discussed with you?
      “The Defendant: Yes.”

       On July 19, 1996, just prior to sentencing, the defendant’s attorney informed the court that the defendant wanted to withdraw Ms guilty plea. The court refused to hear tMs motion until the court could obtain a copy of the transcript from the pleaproceedmg. The court encouraged the defendant’s attorney to file a written motion to withdraw the plea. TMs was not done. Also on July 19, 1996, the defendant’s attorney orally moved to withdraw Ms appearance. That motion was denied by the court. Subsequently, the defendant’s attorney filed a written motion to withdraw his appearance. That motion was also denied by the court.

       Practice Book § 39-20, formerly § 712, provides: “Ensuring That the Plea Is Voluntary
      “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       In the alternative, the defendant argues that the trial court did not “substantially comply” with Practice Book § 712.

       Practice Boole § 39-27, formerly § 721, provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19 [formerly § 711];
      “(2) The plea was involuntary . . .

       Unlike the titles in the General Statutes, which are not voted as part of the statute, Practice Book section titles are an appropriate consideration when the purpose of the section is at issue. This is so because at the time that the Superior Court judges adopt the individual sections, they also adopt the title of the section. See Practice Book § 1-9.

       The test to determine whether a statute is mandatory or directory is also applicable to rules of practice. See Rowe v. Godou, 12 Conn. App. 538, 543, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988).


author: PER CURIAM.

text:
    JOSE ROSADO v. COMMISSIONER OF CORRECTION
    (17285)
    O’Connell, C. J., and Spear and Sullivan, Js.
    Argued September 14
    officially released October 27, 1998

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, former assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jose Rosado, appeals from the habeas court’s judgment dismissing, in part, his petition for a writ of habeas corpus and its subsequent denial of his petition for certification to appeal to this court. Because we affirm the decision of the habeas court in denying the petition for certification, we dismiss the petitioner’s appeal.

The habeas court’s action on the petition was predicated on a factual review of the petitioner’s claims that he was (1) denied the effective assistance of trial counsel and (2) deprived of his constitutional right to have new counsel represent him on direct appeal. As to the second claim, the petitioner asserted that the trial court failed to appoint new counsel for appeal, thereby leaving him, an indigent and legally unskilled person, without the means to pursue an appeal. The habeas court found that the trial court’s action of allowing trial counsel to withdraw and denying trial counsel’s motion for appointment of counsel effectively deprived the indigent petitioner of representation during the time in which an appeal had to be filed. Accordingly, the habeas court reinstated the petitioner’s right to appeal and appointed the office of chief public defender to represent the petitioner on appeal. The petitioner’s direct appeal is currently pending in this court. Therefore, only the petitioner’s first claim is now before us.

With regard to the first claim, the petitioner alleged ineffective assistance of counsel in that trial counsel conducted an inadequate pretrial investigation, failed to call witnesses whose testimony would have aided the defense and failed to consult properly with the petitioner during the trial concerning trial tactics and procedures. After a hearing, the habeas court found that the petitioner had failed to establish that trial counsel’s performance was ineffective. The court did not credit the petitioner’s testimony with respect to this claim and specifically found that the petitioner had failed to meet his burden of proving that counsel’s performance was deficient and that he was prejudiced by the ineffective performance. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Clarke v. Commissioner of Correction, 43 Conn. App. 374, 385, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 120 (1996).

“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.” (Citation omitted; internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997), quoting State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, supra, 43 Conn. App. 386.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Losada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       Following a jury trial, the petitioner was convicted of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), sexual assault in the first degree in violation of General Statutes § 53a-70a (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1).


text:
    DELORES D. STEWART v. LEROY STEWART
    (AC 16493)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs September 18
    officially released October 27, 1998

      Leroy Stewart, pro se, filed a brief.

      Delores D. Stewart, pro se, filed a brief.
   Opinion

PER CURIAM.

The plaintiff, Delores D. Stewart, appeals from the trial court’s denial of her motion to open the judgment of dissolution of her marriage to the defendant, Leroy Stewart, for the purpose of dividing pension benefits.

The plaintiff claims that at the time of the dissolution of their marriage in 1977, the defendant fraudulently concealed pension benefits to which she was entitled. She also claims that the trial court abused its discretion in denying her motion to open the judgment of dissolution in order to address the defendant’s fraud.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982); see also Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983).” (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

The plaintiff did not produce evidence to support her assertion that the defendant had committed fraud. The trial court, after examining the financial affidavits and questioning the defendant, concluded that there were no pension benefits to which he was entitled. The trial court reasonably could have concluded as it did. Accordingly, the trial court did not abuse its discretion in denying the plaintiffs motion to open.

The judgment is affirmed.


text:
    DISTER CORPORATION v. NORTHCO, INC., ET AL.
    (AC 17286)
    O’Connell, C. J., and SchaUer and Dupont, Js.
    Argued September 21
    officially released November 3, 1998

      Richard E. Minton, for the appellant (named defendant).

      Gerald E. Farrell, Sr., for the appellee (plaintiff).
   Opinion

PER CURIAM.

The plaintiff brought this action to recover the proceeds of a cash bond posted as a court-ordered condition of dissolution of a mechanic’s lien that the plaintiff had filed on certain real property. On October 21, 1996, the named defendant was defaulted for failure to appear, and on February 28,1997, the trial court rendered judgment in favor of the plaintiff for $10,062.95 plus costs.

The named defendant’s motion to open the judgment was denied from the bench by the trial court on May 19, 1997. The court denied the motion because it was not verified by the oath of the named defendant or its attorney, nor did it state in general terms the nature of the defense or show reasonable cause, or that a good defense existed at the time of the entry of the judgment. In addition, the named defendant failed to show that it was prevented by mistake, accident or other reasonable cause from defending the action, all of which are required by General Statutes § 52-212 and Practice Book § 17-43. The defendant now claims that the trial court improperly refused to open the judgment.

Connecticut courts have frequently refused to open judgments because of a delict in compliance with the statute or rules of practice. We have previously held that when a defendant fails to comply with the provisions of § 52-212 and Practice Book § 17-43, the trial court properly may refuse to grant the defendant’s motion to open the judgment by default. Rocklen’s Auto Parts & Service, Inc. v. Rakiec, 6 Conn. App. 504, 506 A.2d 168 (1986).

The judgment is affirmed.

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. . . .”

       Practice Book § 17-48 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. . . .”


text:
    COAST VENTURE XXVX, INC. v. DISTER CORPORATION
    (AC 17287)
    O’Connell, C. J., and Schaller and Dupont, Js.
    Argued September 21
    officially released November 3, 1998

      Richard E. Minton, for the appellant (plaintiff).

      Gerald E. Farrell, Sr., for the appellee (defendant).
   Opinion

PER CURIAM.

This case is controlled by our decision in Dister Corp. v. Northco, Inc., 50 Conn. App. 764, 719 A.2d 485 (1998), which we have decided today.

The judgment is affirmed.