text:
    MICHAEL ROBICHAUD v. COMMISSIONER OF CORRECTION
    (AC 23274)
    Lavery, C. J., and Schaller and DiPentima, Js.
    Submitted on briefs October 80
    officially released December 16, 2003

      Richard C. Marquette, special public defender, filed a brief for the appellant (petitioner).

      Patricia M. Froelich, state’s attorney, Margaret Gaff-ney Radionovas, senior assistant state’s attorney, Mark A. Stabile, supervisory assistant state’s attorney, and Jo Anne Sulik, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Michael Robichaud, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly failed to conclude that his trial counsel was ineffective during his jury trial and that this deficiency caused him prejudice. We affirm the judgment of the habeas court.

The following facts are relevant to the petitioner’s appeal. In 1998, the petitioner was convicted, following a jury trial, of conspiracy to commit robbery in the first degree and larceny in the third degree. The trial court sentenced the defendant to a total effective term of fourteen years imprisonment. On appeal, this court affirmed the conviction. State v. Robichaud, 56 Conn. App. 907, 743 A.2d 671, cert. denied, 252 Conn. 946, 747 A.2d 524 (2000).

The petitioner subsequently filed an amended petition for a writ of habeas corpus, alleging, inter alia, that his confinement is illegal because the representation afforded him by his trial counsel, Mark Hauslaib, was ineffective. Specifically, the petitioner alleged that Hauslaib failed to prepare the case adequately for trial, to investigate and to present at trial the petitioner’s alibi defense, to investigate facts relevant to the defense and to communicate with the petitioner concerning the defense. After conducting a hearing, the court dismissed the petition. The court thereafter granted the petition for certification to appeal to this court.

The court’s dismissal of the petition for a writ of habeas corpus was based on its underlying factual determinations concerning Hauslaib’s representation of the petitioner at trial. The petitioner claimed that Haus-laib was deficient by failing to develop and to present at trial the petitioner’s alibi defense and alibi witness. The petitioner claimed that he had informed Hauslaib prior to trial that at or about the time that the criminal incident occurred, he was with a female companion. The petitioner alleged, however, that Hauslaib never contacted that alibi witness and did not investigate the alibi defense. The court deemed the petitioner’s credibility to be “not good” and found credible Hauslaib’s version of events as they related to that subject. The court found that Hauslaib’s testimony, as well as what the court deemed “[t]he better evidence,” made it reasonable to find that Hauslaib became aware of the potential alibi witness only after the trial.

The petitioner also claimed that Hauslaib was deficient in not calling the petitioner’s father as a witness to testify that at or about the time that the criminal incident occurred, the petitioner spoke with his father on the telephone, thereby making it unlikely that the petitioner had committed the crimes. The court evaluated the evidence with respect to that claim and determined that given the circumstances of the case, Hauslaib’s decision in that regard was reasonable. The court also rejected the petitioner’s assertions that Haus-laib failed to prepare the defense adequately, to discuss the case, and to advise the petitioner of his options at trial and to make reasonable decisions in the course of representing him at trial. The court, citing specific instances of conduct, found that Hauslaib had met with the petitioner as he should have, discussed and planned the defense as he should have and communicated relevant information to the petitioner. Further, having reviewed the record of events that occurred during trial, the court found that Hauslaib performed adequately in representing the petitioner and in examining the witnesses at trial. The court noted, as well, that the jury acquitted the petitioner of a charge of robbery in the first degree as an accessory.

The court concluded: “A review of the evidence leads to the conclusion that it has not been proven that attorney Hauslaib’s performance of his duties in representing the petitioner was defective. His conduct, prior to trial and during the trial, did not fall below the required standard of reasonable competence displayed by lawyers with ordinary training and skill in the trial of criminal cases.”

The court set forth the legal standard applicable to the petitioner’s claim. “A criminal defendant is constitu-tionaUy entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Greenfield v. Commissioner of Correction, 73 Conn. App. 583, 584-85, 809 A.2d 517, cert. denied, 262 Conn. 929, 814 A.2d 380 (2002). Only after surmounting this considerable burden of proof will a petitioner asserting a claim of ineffective assistance demonstrate that he is entitled to relief.

“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.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316, 759 A.2d 118 (2000).

Having reviewed the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. The court’s detailed findings of fact related to specific claims of ineffective representation by Haus-laib are not clearly erroneous. Finding facts and determining the credibility of witnesses are matters particularly within the province of the habeas court. Furthermore, in light of the court’s factual findings, we likewise conclude that the petitioner failed to “rebut the strong presumption that counsel’s conduct f[ell] within the wide range of reasonable professional assistance . . . .” (Internal quotation marks omitted.) Berger v. Commissioner of Correction, 74 Conn. App. 489, 491, 812 A.2d 167 (2003). The court properly dismissed the petition.

The judgment is affirmed.

       In his appellate brief, the petitioner also claims that the court improperly dismissed his petition because he was innocent in fact. The petitioner did not raise that claim, in his amended petition or otherwise, before the court and, consequently, the court did not address such a claim in its thorough memorandum of decision. For those reasons, we decline to review that claim, which was raised for the first time on appeal. See Robinson v. Commissioner of Correction, 73 Conn. App. 579, 580 n.1, 808 A.2d 1159 (2002), cert. denied, 262 Conn. 944, 815 A.2d 676 (2003).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    MARK A. SHAPIRO v. SUSAN K. SHAPIRO
    (AC 22599)
    Dranginis, Bishop and McLachlan, Js.
    Argued September 23
    officially released December 16, 2003

      Mark A. Shapiro, pro se, the appellant (plaintiff).

      Fatima T. Lobo, for the appellee (defendant).
   Opinion

BISHOP, J.

This appeal arises in connection with a dissolution of marriage between the plaintiff, Mark A. Shapiro and the defendant, Susan K. Shapiro. The plaintiff appeals from the judgment of the trial court finding him in contempt of court, granting sole custody of the parties’ children to the defendant and ordering him to pay attorney’s fees to the defendant. We reverse the judgment of the trial court.

The following procedural history and factual background are germane to our discussion of the issues on appeal. On October 27, 2000, the court rendered judgment dissolving the parties’ marriage. The judgment of dissolution incorporated an agreement by the parties, which included provisions for alimony, shared custody, child support and the distribution of property. In June, 2001, the plaintiff was sentenced to a term of thirty months incarceration on federal charges and on July 20, 2001, began serving his sentence at the Federal Prison Camp in Allenwood, Pennsylvania, where he remained until his release to a community facility on July 8, 2003.

A review of the court file discloses that the parties’ marital dissolution did not bring their disagreements to a conclusion. Within days of the dissolution, the defendant filed a motion for sole custody of the children. Thereafter, each party filed numerous motions seeking either enforcement or modification of the terms of the marital dissolution judgment.

Attorney Robert F. Cohen represented the plaintiff in the marital dissolution proceedings and on a post-judgment basis until the court, on November 5, 2001, granted his August 8, 2001 motion to withdraw. Initially, when Cohen sought to withdraw as counsel for the plaintiff, the court postponed taking action on the ground that the plaintiff was in federal prison and, thus, unable to be present and to be heard with respect to any objection he may have had to his counsel’s efforts to withdraw from representing him. On November 5, 2001, however, despite the plaintiffs continuous federal incarceration and attendant inability to be present and to be heard, the court granted Cohen’s motion to withdraw.

Subsequently, on November 28, 2001, the court conducted a hearing regarding the defendant’s motions for contempt and to modify child custody. Although it is clear that the plaintiff remained an inmate in federal prison, the court file does not reflect whether he received actual notice of the hearing date or whether any provision was made for his attendance. At the hearing, the defendant’s counsel and the guardian ad litem for the minor children presented testimony and evidence relating to the defendant’s claims and the issue of custody. Because neither the plaintiff nor counsel for the plaintiff participated, however, none of the witnesses was subject to cross-examination on behalf of the plaintiff and, correspondingly, the plaintiff was not able to present a defense to the allegation of contempt or to present his claims in regard to the pending motions. Following the evidentiary hearing, the court found the plaintiff in contempt of court regarding support and property orders, and granted to the defendant sole custody of the parties’ children. Additionally, the court ordered the plaintiff to pay counsel fees on behalf of the defendant. This appeal followed.

The plaintiff argues that the court’s orders of November 28, 2001, should be vacated. Specifically, he claims that by proceeding on November 28, 2001, the court violated his due process rights to be represented by counsel, to be given adequate notice of the hearing, to be given an opportunity to be present and to be heard, to present evidence and to cross-examine witnesses against him. We agree and, accordingly, reverse the judgment of the trial court.

The principles that guide our consideration of the issues on appeal are part of the bedrock of our jurisprudence. “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” (Internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993).

“Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . the [party has] the right to demonstrate that his failure to comply with the order of the trial court was excusable.” (Internal quotation marks omitted.) Ber-glass v. Berglass, 71 Conn. App. 771, 777, 804 A.2d 889 (2002). Likewise, a custody order may not be modified without notice and an opportunity to be heard. Hur-tado v. Hurtado, 14 Conn. App. 296, 306, 541 A.2d 873 (1988). It is with those precepts in mind that we turn to the plaintiffs claim.

We first review the events that transpired after Cohen had filed his motion to withdraw, as they are relevant to the due process issues involving the November 28, 2001 hearing. Although the court file reflects that on August 8, 2001, Cohen filed a motion to withdraw as attorney, the file contains no indication that the plaintiff received notice of that motion. One week later, on August 15, 2001, when the court held a hearing on Cohen’s motion to withdraw, the court declined to rule on the motion for the express reason that the plaintiff was not present in court and did not have an opportunity to respond to his counsel’s motion. At that juncture, the court ordered the defendant’s counsel to initiate a habeas petition to bring the plaintiff to court for a hearing on Cohen’s motion. Notwithstanding its spoken desire to accord the plaintiff an opportunity to be heard with respect to Cohen’s motion, the court on November 5, 2001, granted Cohen’s motion to withdraw without further hearing and without providing the plaintiff an opportunity to be heard. Additionally, the court set November 16,2001, as a hearing date on the defendant’s pending motions for contempt and for a modification of child custody. The court ordered Cohen to inform the plaintiff of the November 16 hearing and the court’s intention to proceed on that date.

On November 16, 2001, when the court convened the hearing, the plaintiff was not in attendance. Although the file is devoid of any indication that the plaintiff was informed of that hearing date, the transcript reveals that an attorney who was present in the courtroom indicated that he had spoken with the plaintiff about the anticipated hearing. That attorney, however, did not appear for the plaintiff and had no apparent authority to act on the plaintiffs behalf. After colloquy between that attorney and the court, the court postponed the hearing until November 28, 2001, and asked the nonap-pearing attorney to inform the plaintiff of the court’s intention to proceed on the pending motions on November 28.

An attempt to notify the plaintiff through the offices of an attorney who had not been authorized to appear for him and who, in fact, had not filed an appearance for the plaintiff is of no effect. In the absence of an indication that the plaintiff received actual notice of the impending November 28,2001 hearing and an opportunity to be heard, the court was without authority to issue the orders that are the subject of this appeal.

We have stated that “[wjhere a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Internal quotation marks omitted.) Castro v. Castro, 31 Conn. App. 761, 770, 627 A.2d 452 (1993). This is such a case. A review of the record indicates that the plaintiff was not afforded the opportunity to participate in any manner in the November 28, 2001 hearing. Accordingly, conducting the hearing without affording the plaintiff an opportunity to be present, to examine and to present witnesses, and to present a defense to the alleged contempt was a denial of due process.

The court as early as August 15, 2001, was aware that the plaintiff was incarcerated and serving a sentence, which, by its terms, would prevent him from being able to attend court unless he was brought to court by official process. Indeed, the court on two occasions engaged in a lengthy colloquy with the defendant’s counsel seeking a procedure to bring the plaintiff before the court. Despite the court’s urging, there is no indication in the court file that any effort was made to produce the plaintiff in court. As a consequence of not receiving notice of the hearing and not being able to attend, the plaintiff was not able to present a defense or to cross-examine the witnesses whose testimony was adverse to him. At oral argument, the defendant’s counsel conceded that if the plaintiff or counsel on his behalf had been present at the hearing, they properly could have objected to much of the evidence adduced by the defendant as inadmissible hearsay.

“When the conduct underlying the alleged contempt does not occur in the presence of the court, a contempt finding must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Intemal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994).

Because the November 28, 2001 hearing was conducted in violation of the plaintiffs due process rights to be present, to examine and to cross-examine witnesses and to present a defense, orders issued at that hearing cannot stand.

The judgment is reversed, all orders issued by the trial court on November 28, 2001, are vacated, and the case is remanded for a new hearing on the defendant’s motions for contempt and to modify custody.

In this opinion the other judges concurred.

       Under the terms of the agreement the plaintiff was obligated to pay child support to the defendant in the amount of $1000 each week. The agreement required that in the event the plaintiff became incapacitated and was no longer able to make the payments, he was obligated to ensure that a certain trust make the payments on his behalf.

       The plaintiff was not at liberty, however, until September 22, 2003.

       Although the pro se plaintiff enunciates seven issues in his brief, because they all assert due process violations, we paraphrase and combine them in the interests of clarity and judicial efficiency.

       Our Supreme Court has held that “[bjefore a parent is permanently deprived of legal custody, or any change is made therein, the usual and ordinary procedures of a proper and orderly hearing must be observed.” Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981).

       The only suggestion that the plaintiff may have been notified of Cohen’s desire to withdraw as his counsel came from Cohen’s representation to the court that he had spoken with the plaintiff on the telephone at the plaintiffs place of incarceration, but that he was limited as to what he could say to the plaintiff because the telephone calls were monitored. He also contended that he sent notice to the plaintiff, but the court file does not contain a return receipt card indicating that the plaintiff had received notice of his counsel’s motion to withdraw.

       The court stated: “Mr. Cohen, your motion to withdraw appearance dated August 8, 2001, is entirely appropriate and is entirely consistent with your ethical obligations, both to your client and to the court, but [the plaintiff] has not had an opportunity to be heard on that, so I’m not going to grant it at this time.”

       It appears from an incomplete transcript of the proceedings on November 16,2001, that an attorney named Morrocco attended the hearing to determine if he would enter an appearance on behalf of the plaintiff. Morrocco never filed an appearance, and his involvement in this case was limited to that day when the court requested that Morrocco inform the plaintiff of the November 28, 2001 hearing.

       By that observation, we are not concluding that such a process was, in fact, available to the court. The crux of our decision is that it was improper for the court to conduct the November 28,2001 hearing under those circumstances, not that the court failed to take reasonable steps to ensure the plaintiffs attendance.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. TYRONE ALLEN
    (AC 22213)
    Foti, West and McDonald, Js.
    Argued October 28
    officially released December 16, 2003

      Martin Zeldes, senior assistant public defender, with whom were Ruth D. Weissmann, certified legal intern, and, on the brief, Amy Dona, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Tyrone Allen, was convicted, following a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant also was convicted, after a simultaneous trial to the court, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that there was insufficient evidence to prove that the barrel of the firearm in question was less than twelve inches in length, a necessary element of the offenses.

The state concedes, and we agree after examining the record, that there was insufficient evidence to sustain the conviction. See State v. Gallichio, 71 Conn. App. 179, 182, 800 A.2d 1261 (2002). Accordingly, we reverse the conviction.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

      The defendant raised two additional claims that we do not address because the resolution of his first claim is dispositive of his appeal.


author: FOTI, J.

text:
    ROBERT JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 22990)
    Foti, Schaller and Dranginis, Js.
    Argued September 8
    officially released December 23, 2003

      Kalisha R. Raphael, deputy assistant public defender, with whom was Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Richard T. Biggar, assistant state’s attorney, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Robert Johnson, appeals following the denial by the habeas court of his petition for certification to appeal from its judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the respondent commissioner of correction correctly applied the petitioner’s credit for presentence confinement, thereby violating the petitioner’s constitutional rights to equal protection and to due process. We affirm the judgment of the habeas court.

The underlying facts in this appeal, relating to the petitioner’s arrest and confinement under three separate criminal informations, are not in dispute. On July 12, 1990, the petitioner was sentenced under the first information in Docket No. CR 90-382851 to serve a term of imprisonment of ten years, suspended after five years, with four years of probation. On June 3, 1994, the petitioner was discharged from the respondent’s custody and began to serve the probationary portion of the sentence.

On June 3, 1995, the petitioner was arrested and, unable to post bond, held in presentence custody in lieu of bond under a second information in Docket No. CR 95-144123 from June 5 until September 21,1995. On June 13,1995, while being held in presentence confinement under that information, the petitioner was arrested and held in presentence custody in lieu of bond under a third information with Docket No. CR 95-474118. The petitioner was simultaneously held in presentence confinement under the second and third informations from June 13 until September 21, 1995, when the court, under the second information, sentenced him to serve a term of incarceration of six months. The respondent credited the petitioner with 108 days of presentence confinement, and, as a result, the petitioner completed his sentenced incarceration under the second information on December 1, 1995.

The petitioner remained in the respondent’s custody in presentence confinement under the third information from December 2, 1995, until April 18, 1996. On March 14, 1996, the petitioner was arraigned on a charge of violation of probation in connection with his conviction under the first information. On April 18,1996, the court sentenced the petitioner under the third information to a term of imprisonment of ten years, execution suspended after four years, and five years of probation. The court also sentenced the petitioner in connection with his conviction for violating his probation to a term of imprisonment of four years, which sentence was to run concurrently with its sentence under the third information. The respondent discharged the petitioner from his term of imprisonment under those informa-tions on December 1, 1999, and the petitioner began to serve a five year probationary term (second probation) on that date.

On June 8,2000, the petitioner was arrested for having violated the terms of his second probation. The petitioner was held in presentence confinement following his arrest and, on July 18, 2000, the court sentenced him to a term of imprisonment of six years, execution suspended after eighteen months, and five years of probation. The respondent applied a credit to the petitioner’s sentence for the time that the petitioner had spent in presentence confinement between June 8 and July 18, 2000. Consequently, the respondent discharged the petitioner from the term of incarceration on December 7, 2001, and the petitioner began to serve a five year probationary term on that date.

On April 25, 2001, the petitioner filed an amended petition for a writ of habeas corpus. He claimed that the respondent improperly had failed to apply a presen-tence confinement credit for the time period of June 13 through September 21,1995, to the term of sentenced confinement under the third information. The court denied the petition for a writ of habeas corpus, and the petitioner brought the present appeal.

The purely legal issue before us in the present appeal warrants plenary review. “The conclusions reached by the trial court in its decision to [deny a] habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 776-77, 809 A.2d 1126 (2002).

It is undisputed that between June 13 and September 21, 1995, the respondent held the petitioner in presen-tence confinement simultaneously under the second and third informations. Further, it is undisputed that the respondent had counted those days of presentence confinement and applied them to the petitioner’s September 21,1995 sentence under the second information. It is the petitioner’s contention that the respondent should have credited those days of presentence confinement against the sentences imposed under both infor-mations. The petitioner posits that “General Statutes § 18-98d requires each day of presentence confinement to be credited once against the docket number or numbers under which the accused was detained.”

Our resolution of that issue is controlled by our decision in King v. Commissioner of Correction, 80 Conn. App. 580, 836 A.2d 466 (2003). In King, we rejected an identical argument and interpretation of § 18-98d (a), and held that “[e]ach day of presentence confinement, regardless of the number of informations under which such confinement accrues, should be counted only once and credited to only one day of sentenced confinement. Once a day of presentence confinement has been credited to reduce the term of sentenced confinement under one information, it cannot be credited again to reduce the term of sentenced confinement under another information.” Id., 587. Here, the petitioner received full credit for each of the days of presentence confinement at issue in this case; the respondent counted and credited those days to the petitioner’s term of sentenced confinement under the second information. The respondent properly applied the petitioner’s presentence confinement credit under the sentencing circumstances of this case.

The petitioner argues that the respondent’s application of the credit violated the petitioner’s right to equal protection. He argues that “[t]he courts must ensure that an individual who is unable to post bond is not disadvantaged by reason of his financial status and forced to serve more time than an individual who is able to post bond.” Likewise, the petitioner argues that he “had a substantive due process right to serve only the stated length of his sentence, not the stated length plus the period of presentence confinement.”

We rejected a similar equal protection challenge in King because, as here, the petitioner cannot demonstrate that the respondent’s application of the statute has disadvantaged him because of his inability to post bond. See King v. Commissioner of Correction, supra, 80 Conn. App. 580. The respondent’s application of the credit in this case neither unfairly disadvantaged the petitioner nor caused him to spend a single day longer in confinement than he should have by reason of the terms of incarceration imposed on him by the court. The petitioner’s due process claim fares no better. The number of days that the petitioner has spent in custody, whether in presentence confinement or in sentenced confinement, equals the number of days to which he has been sentenced by the court as a result of his convictions. His presentence confinements have caused him to spend no more time in custody and do not entitle him to spend any less time in custody.

The petitioner’s suggested application of § 18-98d would have the effect of giving him a benefit because he happened to have been held in presentence incarceration simultaneously under more than one information. The purpose of the presentence confinement credit is clear: Presentence confinement credit should reduce the number of days of sentenced confinement so as to permit the detainee, in effect, to commence his sentence from the time he was compelled to remain in custody. Holmquist v. Manson, 168 Conn. 389, 393-94, 362 A.2d 971 (1975). To credit a day of presentence confinement more than once would, effectively, unfairly reduce criminal sentences. The multiple use of presentence confinement credits would benefit persons in the position of the petitioner unfairly because such persons would have their aggregate criminal sentences reduced by more than the number of days that they have spent in presentence confinement.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court denied the petition for certification to appeal to this court. We agree with the petitioner that the issue raised in this appeal warrants review by this court and, accordingly, reach the merits of the appeal. “A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not . . . frivolous and warrants appellate review if the appellant can show: 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.” (Citation omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995).
      In the habeas court and in his appellate brief, the petitioner also raised an issue with regard to the respondent’s application of “good time credits.” The petitioner abandoned that claim at oral argument.

       General Statutes § 18-98d (a) provides in relevant part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided . . . each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement . . .


text:
    ERIC KING v. COMMISSIONER OF CORRECTION
    (AC 23734)
    Foti, Schaller and Dranginis, Js.

      Argued September 8
    officially released December 23, 2003

      Judith M. Wildfeuer, assistant public defender, with whom was Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, were, Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Eric King, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the respondent commissioner of correction correctly applied the petitioner’s credit for presentence confinement in calculating his discharge date, and that the court thereby violated the equal protection rights afforded him under the federal and state constitutions. We affirm the judgment of the habeas court.

The facts underlying this appeal are not in dispute, and relate to the petitioner’s arrest and presentence confinement under two separate informations. On May 18.1995, the petitioner was arrested and, unable to post bond, held in lieu of bond under the first information in Docket No. CR 95-97012. On February 6, 1996, the court, Graham, J., sentenced the petitioner to nine months imprisonment in that case for failure to appear in the second degree. The respondent applied 264 days of presentence confinement credit to the petitioner’s sentence. That credit reflected the period between May 18.1995, and February 6,1996. As a result, the petitioner completed his sentence on February 15, 1996, just nine days after the court imposed it.

On June 15, 1995, during the period of time in which the petitioner was being held in presentence confinement under the first information, he was arrested and, unable to post bond, held in lieu of bond under an information with Docket No. CR 95-98207. The petitioner was held in presentence confinement simultaneously under both of those informations for 236 days, between June 15,1995, the date of the petitioner’s arrest under the second information, and February 6, 1996, the date on which the petitioner began serving his sentence for the failure to appear conviction under the first information. When the petitioner finished serving his sentence for the failure to appear conviction on February 15,1996, he remained in presentence confinement under the second information for the time period beginning on February 16, 1996, and ending on May 5, 2000, when he was sentenced by the court, Clifford, J., to an eighteen year term of imprisonment on the manslaughter charge in that case. In calculating the petitioner’s sentence for the manslaughter conviction, the respondent applied 1546 days of presentence confinement credit to the sentence, reflecting the period of time between February 16,1996, when the petitioner had concluded serving his sentence for the failure to appear conviction under the first information, until May 5, 2000, when the court sentenced the petitioner on the manslaughter conviction under the second information.

On December 28, 2001, the petitioner filed an amended petition for a writ of habeas corpus. Relevant to the issues he raises on appeal, he argued that the respondent improperly had failed to apply an additional presentence credit of236 days to reduce the manslaughter sentence. He also argued that the respondent’s misapplication of the credit had the effect of “causing an indigent person unable to post pretrial bond to serve a longer period of incarceration to satisfy a sentence than a nonindigent person who is able to post bond would be required to serve in order to satisfy a sentence of the same length.” Specifically, the petitioner argued that the respondent improperly failed to apply a credit on the manslaughter sentence for the 236 days in which the petitioner was held in presentence confinement simultaneously under both informations. The petitioner argued that the respondent’s failure to so credit his sentence resulted in his being held unlawfully beyond his proper release date. The court dismissed the petition, and the petitioner brought the present appeal.

There are no factual issues in dispute; at issue is whether the respondent properly calculated the petitioner’s sentence for manslaughter. Accordingly, “[t]he conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review .... Thus, [wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 75 Conn. App. 133, 135, 815 A.2d 208 (2003).

General Statutes § 18-98d (a) (1) provides in relevant part that “[a]ny person who is confined to a community correctional center or a correctional institution for an offense on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed; provided (A) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presen-tence confinement . . . .”

Affording sentenced inmates credit for time they have spent in presentence confinement does not reduce the sentence imposed; rather, it gives “recognition to the period of presentence time served and to permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody due to a mittimus ... or because of the court’s refusal to allow bail or the defendant’s inability to raise bail . . . .” Holmquist v. Manson, 168 Conn. 389, 393-94, 362 A.2d 971 (1975).

In Payton v. Albert, 209 Conn. 23, 547 A.2d 1 (1988) (en banc), overruled in part on other grounds, Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n. 44, 756 A.2d 1264 (2000), our Supreme Court addressed an issue concerning the effect of a jail time credit on a concurrent sentence. Although Payton is factually dissimilar from the present case because the present case does not involve the application of a credit on a sentence imposed concurrently on the same day, our Supreme Court’s discussion of § 18-98d nonetheless affords us some guidance on how to apply the statute. The Supreme Court in Payton stated that the legislature “has not intended to authorize the transfer of jail time credits accrued while in pretrial confinement under one offense to the sentence thereafter imposed upon conviction for another offense.” Id., 31-32. The court further stated that under § 18-98d, “there is now only a single jail time credit applicable to presentence confinements.” Id., 31.

Torrice v. Commissioner of Correction, 55 Conn. App. 1, 739 A.2d 270 (1999), is directly on point with the issue before us. In Torrice, this court, in a per curiam opinion, adopted as a proper statement of the facts and applicable law a habeas court’s memorandum of decision concerning the application of pretrial confinement credits in several cases. See Torrice v. Commissioner of Correction, 46 Conn. Sup. 77, 738 A.2d 1164 (1999). The petitioner in Torrice, unable to post bond, was held in presentence confinement simultaneously under two separate informations between July 21 and October 28, 1986. Id., 78. On October 28, 1986, the court sentenced the petitioner under one of the informations. Id. The respondent commissioner of correction applied a presentence confinement credit for the time the petitioner was in custody, from July 21 through October 28, 1986, to the petitioner’s sentence on that information. Id., 79. On May 15, 1987, the court sentenced the petitioner on the other information, and the respondent commissioner of correction did not apply a presentence confinement credit to that sentence. The habeas court determined that the respondent properly had declined to apply the credit to each separate sentence. Id., 81-82. The court stated that once the credit had been “fully utilized” as to one of the sentences, it was “not available for application” to the other sentence. Id., 82. The court further explained that “[p]retriai confinement credit applied to one sentence in one docket is not thereafter available for application to another sentence in another docket.” Id.

The unambiguous language of § 18-98d (a) (1) (A) provides that “each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement . . . .’’In the present case, the respondent counted the 236 days of presentence confinement between June 15,1995, and February 6,1996, only once and properly applied them to the sentence imposed on February 6, 1996. The petitioner received the benefit of this presentence confinement and completed his February 6, 1996 sentence on February 15, 1996. He now seeks to have the same 236 day credit applied more than once, this time to a sentence that the court imposed more than four years later on May 5, 2000.

Each day of presentence confinement, regardless of the number of informations under which such confinement accrues, should be counted once and credited to only one day of sentenced confinement. Once a day of presentence confinement has been credited to reduce the term of sentenced confinement under one information, it cannot be credited again to reduce the term of sentenced confinement under another information. The petitioner received credit for each day that he spent in presentence confinement because, as he asserts, he was unable to post bond. He now seeks a credit for some of those same days simply because, at the time he already was in presentence confinement, he was arrested and unable to post bond in a separate matter. Certainly, that circumstance should not work to the petitioner’s benefit. Credits are properly applied to reduce the number of days of sentenced confinement to reflect days spent in presentence confinement; they should not be used to reduce criminal sentences. To count those days more than once would permit the petitioner to reduce the number of days that he was ordered to spend in sentenced confinement under both informations simply because he happened to have been held in presentence confinement simultaneously under the two informations. In other words, the petitioner’s suggested application of the statute would permit him to reuse credit for each day that he spent in presentence confinement. Consequently, the petitioner would be able to reduce the aggregate days of sentenced confinement imposed under different informations by more than the number of days that he spent in presentence confinement. Such a consequence runs contrary to the public policy of this state because it has the effect of permitting the petitioner to avoid serving the full term of any criminal sentences imposed against him. See Payton v. Albert, supra, 209 Conn. 33-34.

We conclude that the respondent properly applied § 18-98d to the sentencing circumstances of this case. For the reasons already discussed, we reject the petitioner’s equal protection challenge to the respondent’s application of the statute. The petitioner argued in that regard that the “[Respondent’s failure to reduce [his] sentence by the entire amount of time he spent in pre-sentence confinement violates [his] state and federal right[s] to equal protection of law.” The petitioner points out that the respondent did not credit the manslaughter sentence with the additional 236 days that the respondent already had credited to the earlier sentence. The petitioner claims that he is an “indigent inmate” and that the respondent’s failure to credit those days to the manslaughter sentence “result[ed] in lengthening [the] sentence beyond the sentence imposed by the court, thus disadvantaging [him] due to his lack of wealth.”

The petitioner’s claim apparently relies on a comparison between wealthy and indigent petitioners. The petitioner has failed, however, to explain how his indigency has disadvantaged him or has caused him to serve more jail time than would a wealthy petitioner who has been convicted of the same crimes. The petitioner has received credit for each and every day that he spent in presentence confinement because of his inability to post bond. As did our Supreme Court in Payton v. Albert, supra, 209 Conn. 33-34, we note the compelling state interest in discouraging criminal activity that is furthered by the application of the statute and, specifically here, the state’s interest in preventing defendants from reusing credits applied against one sentence to reduce their terms of confinement under another sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also denied the petition for certification to appeal to this court. We agree with the petitioner that the issue raised in his appeal warrants review by this court and, accordingly, reach the merits of the appeal. “A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not . . . frivolous and warrants appellate review if the appellant can show: 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.” (Citation omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995).

       The petitioner in Payton accrued credits for presentence confinement while he was held under two different informations simultaneously. The trial court later sentenced him to serve concurrent sentences with regard to charges brought under the two informations. Our Supreme Court noted that although General Statutes § 18-98d pertains to the calculation of sentences generally, it does not address the matter of concurrent sentences. Payton v. Albert, supra, 209 Conn. 32. It thus examined General Statutes § 53a-38 (b), which provides in relevant part that if sentences run concurrently, “the terms merge in and are satisfied by discharge of the term which has the longest term to run . . . .” Pursuant to that statute, the court upheld the calculation by the respondent commissioner of correction, which involved an adjustment of each sentence separately in light of the authorized jail time credits and a determination of which of the adjusted concurrent sentences had the longest term to run. In the present case, because the petitioner’s sentences were not ordered to run concurrently, § 53a-38 (b) does not apply. Hence, the sentence calculation method used in Payton does not apply in the present case even though the petitioner was held in presentence confinement under two informations.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. MICHAEL HICKEY
    (AC 22847)
    West, DiPentima and Dupont, Js.
    Argued September 10
    officially released December 23, 2003

      Alice Osedach-Powers, assistant public defender, with whom, on the brief, was Leslie K. Cavanagh, assistant public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Kevin D. Lawlor, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Michael Hickey, appeals from the judgments of conviction of two counts of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1999) § 14-227a, as amended by Public Acts 1999, No. 99-255, § l. The defendant claims that the trial court improperly denied his motion to dismiss because (1) as applied, § 14-227a (h), now (g), results in a violation of the ex post facto clause of the United States constitution and (2) the application of the statute constitutes a violation of his sixth amendment right to effective assistance of counsel under the United States constitution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On March 11, 1991, and February 25, 1994, the defendant was convicted, under § 14-227a, of operating a motor vehicle while under the influence of alcohol. The statute in effect when those two incidents occurred had been amended in 1985 pursuant to Public Acts 1985, No. 85-387. Under subsection (h) of that statute, a second, third, fourth or subsequent violation was one that occurred within five years of a prior conviction for the same offense. In 1995, Public Acts 1995, No. 95-314, § 1, amended § 14-227a (h) by defining a subsequent violation as one that occurs within ten years of a prior conviction for the same offense. These five and ten year periods are referred to as “look back” periods. See 38 H.R. Proc., Pt. 19, 1995 Sess., p. 6829, remarks of Representative Dale W. Radcliffe. Additionally, in 1999, Public Acts 1999, No. 99-255, § 1, amended the statute to provide for increased penalties for repeat offenders.

The defendant was arrested on separate charges of violating § 14-227a on June 1 and June 28, 2000. On April 4, 2001, the defendant filed a motion to dismiss the charges. The court denied the motion. Thereafter, on October 19,2001, the defendant pleaded nolo conten-dere, as a third time offender, to both counts of § 14-227a. On February 5,2002, the defendant was sentenced pursuant to General Statutes (Rev. to 1999) § 14-227a, as amended by Public Acts 1999, No. 99-255, § 1, to three years incarceration, suspended after one year mandatory time, and three years of probation.

I

The defendant first argues that § 14-227a, as applied, results in a violation of the ex post facto clause of the United States constitution in that the amended statute (1) resulted in greater punishment than that previously prescribed, (2) reduced the state’s burden of proof and (3) deprived him of a defense. We disagree.

“We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Weiner, 61 Conn. App. 738, 747, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001).

The ex post facto clause prohibits, inter alia, the enactment of “any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (Internal quotation marks omitted.) Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).

The United States Supreme Court has held that a statute enhancing a defendant’s sentence because he is a repeat offender does not violate the ex post facto clause even if one of the convictions on which the sentence is based occurred before the enactment of the statute. See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948). Moreover, the United States Supreme Court has consistently sustained repeat offender laws as penalizing only the last offense committed by a defendant. See Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).

Our own Supreme Court has reached the same conclusion. In State v. Holloway, 144 Conn. 295, 130 A.2d 562 (1957), the court rejected the contention that an enhanced sentence for a third time offender, under a statute enacted in 1955 and based on convictions in 1947 and 1952, constituted a violation of the ex post facto clause. “In resolving that question, the crucial fact is that [the statute] does not undertake to provide punishment for any crime committed prior to the date when it went into effect. The punishment provided is for a violation of the narcotics law which occurs subsequent to the effective date of the section. The only effect that a conviction antedating the statute has is to enhance the penalty to be imposed for a violation of the narcotics law. The theory of [the statute] is not that a person shall be punished a second time for an earlier offense but that the principal offense for which the person is being prosecuted under the statute is made more serious by reason of its being a repetition of an earlier offense or earlier offenses.” Id., 301.

The situation in this case is very similar. The defendant’s first two convictions occurred prior to the amendments of 1995 and 1999. Under the rationale of Holloway, it is clear that the defendant’s 2002 conviction did not result in a second punishment for his convictions in 1991 and 1994. His punishment for the 2002 conviction was simply enhanced on the basis of his status as a repeat offender. Consequently, as the court succinctly stated in Holloway, “in no sense does the statute operate ex post facto.” Id.

The defendant relies principally on State v. Sanford, 67 Conn. 286, 289, 34 A. 1045 (1896), for the proposition that a law providing for greater punishment than previously had been prescribed would clearly be ex post facto if it applied retroactively. In Sanford, the defendant was convicted as a repeat offender under § 1 of chapter 331 of the Public Acts of 1895, a liquor law. The Sanford court interpreted the law to apply prospectively. The Connecticut Supreme Court has since explained the rationale behind Sanford. In the legislation at issue in Sanford, there was a clearly expressed legislative intent that the only convictions occurring after enactment of the legislation would qualify as prior convictions. State v. Holloway, supra, 144 Conn. 299-300.

The legislative scenario for § 14-227a is markedly different from that facing the Sanford court. Unlike the legislature promulgating the act of 1895, the legislature addressing § 14-227a intended to consider behavior occurring prior to the enactment of the amendment. See State v. Mattioli, 210 Conn. 573, 578, 556 A.2d 584 (1989) (“in enacting Public Acts 1985, No. 85-387 so as to amend § 14-227a, the legislature clearly intended to provide harsher penalties for offenders with a history of driving under the influence”); see also 38 H.R. Proc., Pt. 19, 1995 Sess., pp. 6829-30, remarks of Representative Dale W Radcliffe; 42 H.R. Proc., Pt. 19, 1999 Sess., pp. 6740-41, remarks of Representative John Wayne Fox. Because the legislative intent and purpose behind the respective statutes clearly were different, Sanford provides no support for the defendant’s argument. Therefore, the defendant’s argument that the amended statute results in an ex post facto violation by prescribing a greater punishment for a prior conviction must fail.

The defendant next claims that there is an ex post facto violation when the amendment effectively reduces the state’s burden of proof. The defendant argues that a ten year, rather than a five year, look back period makes it easier to prove that he had two prior convictions, a necessary predicate to being considered a third time offender. The defendant further claims that the application of § 14-227a deprives him of the defense that his earlier convictions would fall outside the previous five year look back period. Obviously, that defense is not available under a ten year look back period.

Neither of those arguments is availing. In a case strikingly similar to the one at bar, the Maine Supreme Court held that “[w]hen a statute defines penalties for future offenses, defendants are put on notice that they can no longer rely on the former statutory scheme for whatever defense or protection it may have provided.” State v. Chapman, 685 A.2d 423, 425 (Me. 1996). Moreover, “[t]he familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea back of them is that one’s acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men’s minds. This rule of public policy has been repeatedly applied by this court.” (Citation omitted.) Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 A. 564 (1937). Because the defendant was effectively put on notice of the changes occurring in 1995 and 1999, he is precluded from relying on the five year look back period to prove that the state’s burden of proof was reduced or that he was deprived of a defense.

II

The defendant next claims that the application of § 14-227a resulted in a denial of his right to the effective assistance of counsel. The defendant argues that because the current consequences of convictions that occurred in 1991 and 1994 were not in existence at the time of his prior convictions, defense counsel’s assistance in 1991 and 1994 was ineffective. In essence, the defendant argues that defense counsel’s failure to predict the future behavior of the legislature and to advise the defendant thereof resulted in ineffective assistance of counsel in violation of the sixth amendment to the United States constitution. That argument merits little discussion.

Generally, attorneys cannot be held accountable for failure to counsel clients regarding future amendments to the penal statutes or changes in the law. See, e.g., Larkin v. Commissioner of Correction, 45 Conn. App. 809, 819, 699 A.2d 207 (1997). The defendant’s attorney, therefore, can hardly be held accountable for failing to inform the defendant of consequences of a statutory scheme that was not in existence at the time he counseled the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant entered pleas of nolo contendere to two counts of operating a motor vehicle while under the influence of intoxicating liquor conditioned on the right to appeal pursuant to General Statutes § 54-94a and Practice Book § 61-6. The defendant also pleaded guilty to two counts of failure to appear in the second degree. He does not challenge his conviction on those charges.

       General Statutes § 14-227a provides in relevant part: “(a) Operation while under the influence .... No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       In his reply brief, the defendant withdrew his claim that § 14-227a contains a statute of limitations.

       General Statutes (Rev. to 1991) § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .” (Emphasis added.)

       General Statutes (Rev. to 1997) § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within ten years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .” (Emphasis added.).

       General Statutes (Rev. to 1999) § 14-227a (h), as amended by Public Acts 1999, No. 99-255, § 1, provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars nor more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such third offense. . . .”

       Because we have concluded that the defendant’s 2002 conviction did not result in a second punishment for his earlier offenses, we also reject the defendant’s claim that the 1995 amendment to General Statutes § 14-227a (h) violated General Statutes §§ 1-1 and 55-3 because the amendment made the punishment for his previous crimes more burdensome after they were committed.

       See also State v. George B., 258 Conn. 779, 800, 785 A.2d 573 (2001) (“[pjersons are presumed to be aware of the law and cannot plead ignorance”); People v. Brady, 34 Cal. App. 4th 65, 71-72, 40 Cal. Rptr. 2d 207 (1995) (holding that challenged sentencing statute was “in full force and effect,” which would have given defendant notice that ability to earn good conduct credits in prison would be limited under statute); People v. Wickland, 268 Ill. App. 3d 758, 762, 644 N.E.2d 799 (1994) (“public is generally held to have notice of a bill’s contents at the time the bill is passed in its final form”).


text:
    VICTORIA DIENER v. FERNANDO TIAGO, JR.
    (AC 23309)
    Foti, Schaller and Berdon, Js.

      Argued September 22
    officially released December 23, 2003

      Paul J. Ganim, for the appellant (plaintiff).

      Jane G. Beddall, with whom was Terence A. Zemetis, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Victoria Diener, appeals from the judgment of the trial court, rendered after the jury’s verdict in favor of the defendant, Fernando Tiago, Jr. On appeal, the plaintiff claims that the court improperly denied her posttrial motion to set aside the verdict. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff commenced her action in November, 1997. The plaintiff alleged that she sustained physical injuries on July 8, 1997, when the defendant negligently operated his motor vehicle, causing it to collide with the motor vehicle she was operating. The plaintiff alleged, specifically, that both she and the defendant were operating their motor vehicles in the single northbound lane of Madison Avenue in Bridgeport at or around 11:30 p.m. She further alleged that the defendant, who was traveling behind the plaintiffs vehicle, negligently and carelessly passed her vehicle while she was attempting to make a left turn, thereby causing his motor vehicle to strike the left side of her motor vehicle and causing her injuries. The defendant denied the plaintiffs allegations of negligence and raised a special defense of contributory negligence, which the plaintiff denied.

On January 18, 2002, the jury returned a verdict in favor of the defendant, which the court accepted. The court did not submit interrogatories to the jury and, after the jury returned a general verdict for the defendant, the court did not poll the jury. On February 8, 2002, the plaintiff, raising claims of error in several of the court’s evidentiary rulings, filed a motion to set aside the verdict pursuant to Practice Book § 16-35, together with her memorandum of law in support thereof. The court thereafter issued a memorandum of decision denying the plaintiffs motion. The plaintiff subsequently filed the present appeal, challenging the court’s resolution of only one of the evidentiary claims she raised in her motion to set aside the verdict.

In her motion to set aside the verdict, the plaintiff claimed, inter alia, that she was entitled to a new trial because the court improperly had excluded from the evidence several photographs that she submitted. According to the plaintiff, those photographs depicted skid marks from the defendant’s motor vehicle leading to the point of impact with her motor vehicle as well as the point of impact. At trial, the court excluded those photographs on the ground that the plaintiff had failed to authenticate them sufficiently.

In a lengthy and comprehensive memorandum of decision on the plaintiffs motion to set aside the verdict, the court, relying extensively on Tarquinio v. Diglio, 175 Conn. 97, 394 A.2d 198 (1978), concluded that it improperly had excluded the photographs from evidence. It further concluded, however, that this exclusion constituted harmless error. The court noted that the defendant himself had admitted several facts concerning the subject matter depicted in the photographs, including the fact that his motor vehicle had skidded, left skid marks and that he had driven across the double yellow line in the road in an attempt to avoid the collision. The court determined that the defendant’s testimony left “no dispute with regard to the skid marks” and determined that the photographs merely would have been cumulative evidence, as both the plaintiff and defendant had “testified to the material facts that could reasonably be culled from the photographs . . . .’’The court concluded that its improper exclusion of the cumulative evidence was harmless error not likely to have affected the result of the trial.

The plaintiff claims on appeal that the court improperly determined that its error was harmless and that it improperly denied her motion to set aside the verdict. Before turning to the claim at hand, we must first address the defendant’s assertion that the general verdict rule applies to this case and precludes this court from reviewing the merits of the plaintiffs claim.

“Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. ... On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. . . . Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . .

“Our Supreme Court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case maybe; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Internal quotation marks omitted.) D’Alesandro v. Clare, 74 Conn. App. 177,180-81, 812 A.2d 76 (2002). The present case falls under the fourth category, denial of a complaint and the pleading of a special defense.

By his answer, the defendant denied the plaintiffs claim of negligence as set forth in the complaint and, by way of special defense, asserted that “[a]ny damages or injuries alleged to have been sustained by the Plaintiff, were the result of her own negligence and carelessness in that . . . she failed to maintain any signals lights, flares or other precautionary safeguards to warn the Defendant of her position.” Either of those grounds could have formed the basis for the jury’s verdict. The jury reasonably could have concluded that the plaintiff had not sustained her burden of proof with regard to her complaint or the jury could have reasonably concluded that the defendant prevailed on his special defense. The parties did not request that the court submit interrogatories to the jury and, consequently, we cannot determine the ground on which the jury’s verdict rests. In applying the general verdict rule, we presume that every issue was found in favor of the prevailing party, here, the defendant. See Mazuroski v. Hernovich, 42 Conn. App. 574, 576, 680 A.2d 1007, cert. denied, 239 Conn. 922, 682 A.2d 1003 (1996).

The sole issue presented on appeal is whether, in regard to the court’s exclusion of the photographs depicting the defendant’s skid marks, the court properly refused to set aside the verdict. To determine if the general verdict rule precludes our review of that issue, we must first determine whether the claimed error relates to either of the two grounds on which the jury might have based its verdict.

Our review of the record leads us to conclude that although the excluded evidence may have been relevant to the issue of whether the plaintiff proved the allegations in her complaint, the evidence was in no way relevant to the issue of whether the defendant proved that the plaintiff was contributorily negligent, as alleged in the special defense. The purpose of the photographs, as shown by the record, was to identify the location of the cars before, at or after the impact. The evidence, as offered, was not relevant to the issue of whether the plaintiff used proper warning signals while operating her vehicle or employed any other precautionary safeguards, as alleged in the special defense.

Application of the general verdict rale to this case precludes our review of the plaintiffs claim of error in the exclusion of the photographs from evidence. We have no need to consider whether the court’s eviden-tiary ruling was proper or, if not, whether its ruling was harmless. The claimed error does not undermine the jury’s presumed finding in the defendant’s favor on his special defense. The general verdict, therefore, will not be disturbed, and the plaintiffs claim relating to the improperly excluded evidence need not be reviewed. See Rivezzi v. Marcucio, 55 Conn. App. 309, 313, 738 A.2d 731 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also argues that the court’s improper exclusion of the photographic evidence prevented her from “being able to substantially and fairly exercise her right to cross-examine the [defendant] regarding [his] credibility, candor and memory . . . .” She further argues in that regard that the court improperly determined that its error was harmless and that the general verdict rule cannot operate because the court’s error “applies to [both her] case-in-chief by way of corroboration and the defendant’s claimed special defense by way of impeachment.” We find no merit in those arguments and, concluding as we do, need not evaluate the propriety of the court’s rulings.


text:
    DIANE S. BUSQUE v. OAKWOOD FARMS SPORTS CENTER, INC., ET AL.
    (AC 23666)
    West, DiPentima and McLachlan, Js.

      Argued September 18
    officially released December 23, 2003

      Louis N. George, with whom was Michelle D. Killion, for the appellant (plaintiff).

      Eric D. Eddy, for the appellee (named defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Diane S. Busque, appeals from the judgment of the trial court rendered on the granting of the motion for summary judgment filed by the defendant Oakwood Farms Sports Center, Inc. Notwithstanding the issues as framed, the plaintiff essentially argues that the court improperly found that there were no genuine issues of material fact. Because we agree, we reverse the judgment of the trial court rendered upon the granting of the defendant’s motion for summary judgment.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On January 21, 2001, the plaintiff and her husband drove to the defendant’s facility at 40 Oakwood Drive in Glastonbury. Upon arrival at the defendant’s premises, there were no available parking spaces. The plaintiffs husband proceeded to park their automobile in a parking lot at 21 Sequin Drive. The couple attended a soccer game at the defendant’s facility. At the conclusion of the soccer game, the couple walked back to their car. The plaintiff sustained injuries after slipping and falling on a patch of ice in the parking lot.

The plaintiff commenced this action on January 22, 2002. In count one of the complaint, the plaintiff alleged that the injuries she sustained in her fall at the parking lot were the result of the negligence and carelessness of the defendant. On May 1, 2002, the defendant filed a motion for summary judgment as to count one. In the motion, the defendant argued that it did not owe the plaintiff a duty of care because she had not demonstrated the required elements of the defendant’s possession and control over the parking lot. The plaintiff filed an objection to the motion for summary judgment, and oral argument occurred before the court on June 4, 2002.

The court granted the defendant’s motion for summary judgment on June 12, 2002. The court concluded (1) there were no affidavits filed by the plaintiff, (2) there was no evidence that the defendant possessed or controlled the premises or that it owed any duty to the plaintiff and (3) there was no evidence that the plaintiff was directed to 21 Sequin Drive. Following the granting of the motion for summary judgment, the plaintiff filed five motions seeking either review or articulation of the court’s decision. On June 25, 2002, the plaintiff filed a motion for reconsideration, which was opposed by the defendant. The plaintiff argued that the court had failed to review her affidavit that had been filed with her opposition to the motion for summary judgment. The court denied the motion on September 9, 2002, without explanation. Thereafter, the plaintiff filed two more motions on which the court did not act.

The plaintiff then filed a second motion to reconsider on the ground of newly discovered evidence and a motion for articulation, both dated September 19, 2002. On October 7, 2002, the court issued an order denying the motion as to newly discovered evidence, stating: “Denied for same reasons as stated for original motion for summary judgment, i.e., as to control, duty or direction.” On the same date, the court denied the plaintiffs motion for articulation. This appeal followed.

The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment in part because it failed to consider her affidavit. Because genuine issues of material fact exist as to the defendant’s liability, we agree with the plaintiff on that issue.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citation omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” (Internal quotation marks omitted.) Fogarty v. Bashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly “ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.” (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

In this case, the affidavit filed by the plaintiff with her opposition to the defendant’s motion for summary judgment provides an evidentiary foundation that demonstrates that a genuine issue of material fact exists as to whether the plaintiff was a business invitee or was negligently directed. In her affidavit, the plaintiff stated there were no available parking spaces on the defendant’s premises. She further stated that on an earlier occasion at the defendant’s facility, she saw a notice posted at the reception desk indicating that additional parking was available in other parking lots at the back of the facility. She also stated that on previous occasions, an employee of the defendant informed her that there was additional parking at the back of the facility and that those parking lots were not associated with the defendant. Finally, she claimed that there were no signs prohibiting parking at the lot at 21 Sequin Drive.

Viewing the plaintiffs affidavit in the light most favorable to her, the affidavit creates genuine issues of material fact. The plaintiff claimed that the defendant negligently directed her to an area that was identified improperly. In support of that claim, the plaintiff averred that there was a notice posted at the reception desk directing her toward parking lots behind the building. Moreover, she averred that the defendant’s employees directed her to parking lots located behind the defendant’s facility. There exists a question of fact regarding the specific contents of the notice posted at the reception desk. There also exists a question of fact regarding exactly where the defendant’s employees told the plaintiff she could park in the event there was no available parking at the defendant’s facility. Furthermore, there are issues of material fact surrounding whether the plaintiff should be considered a business invitee and, therefore, owed a duty of care. The presence of those material issues of fact rendered the granting of the defendant’s motion for summary judgment inappropriate. Accordingly, we conclude that the court improperly granted the motion for summary judgment.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Specifically, the plaintiff claims that the court improperly (1) failed to find that the defendant Oakwood Farms Sports Center, Inc. (Oakwood Farms), was negligent in directing her to an unsafe parking area, (2) failed to find that Oakwood Farms negligently directed her to the intended parking area, (3) found that Oakwood Farms did not owe her a duty to protect her from an unreasonable risk of harm that existed in the parking lot at 21 Sequin Drive in Glastonbury, where the injuries she sustained allegedly occurred, (4) found that Oakwood Farms did not owe her a duty to warn her of a dangerous condition that existed in the parking lot and (5) found that Oakwood Farms did not owe her a duty to inspect the parking lot.

       Joseph Giarratana and Hans Kretzmer, also defendants, were not parties to the motion. Therefore, we refer in this opinion to Oakwood Farms Sports Center, Inc., as the defendant.

       There were three counts in the complaint. Count one was the only count directed toward the defendant and, therefore, is the only count relevant to this appeal.

       There is no dispute that the plaintiff did, in fact, submit an affidavit with her opposition to the motion for summary judgment.


text:
    CYNTHIA M. HANSEN v. GLENN T. HANSEN
    (AC 23601)
    Dranginis, Bishop and West, Js.
    Argued October 27
    officially released December 23, 2003

      Bruce A. Chamberlain, for the appellant (defendant).

      Howard M. Gould, with whom, on the brief, were Patricia J. Gillin and Ann Grunbeck Monaghan, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Glenn T. Hansen, appeals from the judgment of the trial court finding him in contempt for his refusal to accede to a proposed qualified domestic relations order (QDRO) prepared by counsel for the plaintiff to effectuate the terms of the parties’ marital dissolution judgment. We affirm the judgment of the trial court.

When the parties’ marriage of twenty years was dissolved on November 9, 1989, the judgment was based on the parties’ agreement. It included a provision that “[the] plaintiff shall receive one half of the defendant’s retirement benefits, when and as available from the state of Connecticut.” At the time of the dissolution, the defendant was employed as a teacher by the state of Connecticut and was a participant in the state employees retirement system. On May 28, 2002, the defendant, apparently contemplating retirement, filed a motion to clarify the portion of the judgment regarding the division of his retirement benefits. During oral argument on his motion, the defendant claimed that his intention when he made that agreement was that the plaintiff would receive only one half of the pension benefits that had accrued during the marriage and that she would not participate in any postdissolution aggregations to his pension entitlement. The court orally denied the defendant’s motion. The defendant sought no articulation of the court’s denial of his motion to clarify. Subsequently, the parties prepared conflicting QDROs and submitted them to each other for approval. Although neither party has included in the record a copy of his or her proposed QDRO, it is a reasonable inference from the transcripts of the hearings on the motion to clarify and the motion for contempt, which are part of the record, that the defendant’s proposed QDRO purports to provide the plaintiff with a monthly pension amount determined by a formula taking into account his total number of years as a participant in the state employees retirement system and the number of those years during which he and the plaintiff were married. It is equally apparent that the QDRO prepared by the plaintiff provides for an equal division of the defendant’s monthly retirement benefit when it actually becomes available to him, i.e., upon his retirement. When each party refused to agree to the terms of the QDRO submitted by the other, the parties filed competing motions for contempt. At oral argument, the court found in favor of the plaintiff and disagreed with the defendant’s claim that the language of the agreement was sufficiently ambiguous to require a hearing to determine the intent of the parties when the agreement was formulated. This appeal followed.

The defendant raises two issues on appeal. First, he claims that it was improper for the court to rule on the contempt motion without having first obtained a clarification of the agreement or without hearing testimony from the parties regarding their intent when they entered into the agreement in 1989. Second, the defendant claims that, as a matter of law, pension benefits are valued as of the date of dissolution of the marriage in the absence of a specific statement to the contrary. Neither claim is persuasive.

At the contempt hearing, the court accurately observed that the defendant already had filed a motion for clarification that had been denied. Additionally, we note that the defendant did not subsequently file a motion for articulation of the court’s denial of his motion. Under those circumstances, his attempt to argue his motion for clarification further was seen correctly by the court as an effort to reargue an already decided motion. Additionally, we are not persuaded that the language in the agreement providing for the plaintiff to receive “one half of the defendant’s retirement benefits, when and as available from the state of Connecticut” is ambiguous. To the contrary, simple language construction directs the conclusion that the agreement provides for the plaintiff to receive one half of the defendant’s monthly pension benefit from the state of Connecticut at such time as he retires because the payment of retirement benefits are, in fact, not available until one retires. In short, the phrase “when and as available” is susceptible to only one meaning. “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings. . . . When the plain meaning and intent of the language is clear, a clause . . . cannot be enlarged by construction. There is no room for construction where the terms of a writing are clear and unambiguous, and it is to be given effect according to its language.” (Citation omitted; internal quotation marks omitted.) Gager v. Gager & Peterson, LLP, 76 Conn. App. 552, 556-57, 820 A.2d 1063 (2003). The court did not abuse its discretion in refusing to hear evidence of the parties’ intention in formulating that portion of their marital dissolution agreement.

The defendant’s second claim that pension benefits are valued as of the date of dissolution states a proposition not directly germane to our review on appeal. Although the defendant has asserted correctly the rule that assets are, as a general matter, to be valued as of the date of dissolution, that proposition does not preclude the court from awarding to a spouse a portion of retirement benefits earned by his or her former spouse subsequent to the date of dissolution. Cf. Bender v. Bender 258 Conn. 733, 785 A.2d 197 (2001).

The judgment is affirmed.

       We note that the defendant does not raise as an issue on appeal that his failure to accede to the QDRO prepared by the plaintiffs counsel was based on an honest disagreement and was therefore not a wilful violation of a court order. Under the unique circumstances of this case and given the fact that the court did not impose any sanctions on the defendant except to order that he accede to the QDRO prepared by the plaintiffs counsel, we do not reach the issue of wilfulness.

       We note that although both parties submitted proposed QDROs as the vehicle to enforce the retirement portion of the judgment, a QDRO is not the appropriate means to do so with respect to a government pension. “A QDRO is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. See 29 U.S.C. § 1056 (d) (3) (b) for the requirements of a valid QDRO. . . . [T]he procedures set forth in the United States Code for a QDRO do not apply to a governmental pension plan . . . see 29 U.S.C. § 1003 (b) . . . .” (Internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 786-87 n.4, 663 A.2d 365 (1995). Because neither of the parties has claimed any impropriety with respect to the vehicle each proposed, and because the issue at hand concerns the extent of the plaintiffs interest in the defendant’s retirement benefit and not the means to secure that interest, we need do no more than note the mischaracterization. See Bender v. Bender, supra, 258 Conn. 738 n.3.