author: HARPER, J.

text:
    WILLIAM MASSEY ET AL. v. TOWN OF BRANFORD ET AL.
    (AC 28593)
    Harper, Beach and Borden, Js.

      Argued January 7
    officially released June 16, 2009

      Dawn Massey, pro se, and William Massey, pro se, the appellants (plaintiffs).

      William H. Clendenen, Jr., with whom were Nancy L. Walker and, on the brief, Kev'in C. Shea, David S. Doyle and Daniel C. DeMerchant, for the appellees (named defendant et a!.).

       The plaintiffs’ motion for reconsideration was granted July 2, 2009, and the decision in Massey v. Branford, 115 Conn. App. 153,971 A.2d 838 (2009), is vacated. This opinion has been superseded by Massey v. Branford, 118 Conn. App. 491, 985 A.2d 335 (2009).

   Opinion

HARPER, J.

In this consolidated appeal, the plaintiffs, William Massey and Dawn Massey, appeal from the judgment of the trial court rendered following the granting of the motion to enforce a settlement agreement filed by the defendants, the town of Bran-ford, Barbara Neal and Michael Milici, and challenge the denials by the trial court of various motions filed by the plaintiffs. On appeal, the plaintiffs claim that the court (1) abused its discretion by failing to disqualify itself, (2) improperly granted the defendants’ motion to enforce the settlement agreement, (3) improperly granted the defendants’ motion to strike the plaintiffs’ jury claim and (4) improperly denied a series of motions filed by the plaintiffs subsequent to the filing of the defendants’ motion to enforce the settlement agreement. We affirm the judgment of the trial court.

The court found the following facts. “The plaintiffs . . . are taxpayers in the town of Branford. They filed suit pro se against the defendants, challenging the assessment of their property, seeking to invalidate the grand list of the town and for civil penalties pursuant to General Statutes § 12-170. There were also sundry other causes of action which did not survive motions to strike. . . . For the plaintiffs as [pro se litigants], Dawn Massey assumed the lead, demonstrating a remarkable ability to research, learn and synthesize knowledge of legal process and substantive law. The defendants were represented by Howd and Ludorf, and then later in the process, by the Marcus Law Firm as well.

“The trial of this case was set for July 10,2006. Pursuant to a trial management order the parties were set to meet to go over exhibits. Such a meeting was set for July 3, 2006. At that meeting, Dawn Massey, attorney Shelly Marcus and attorney Daniel C. DeMerchant of Howd and Ludorf met and entered into a written agreement. As a part of the process in arriving at the agreement, Dawn Massey conferred with her husband, William Massey, and gained his approval for the settlement agreement terms, as long as it ended all of the litigation. The defendants’ counsel had gained authority for the terms of the settlement agreement from conferences prior to the meeting with the town assessor, Barbara Neal, and during the meeting with the town’s first selectman. The settlement agreement was initialed by page and signed after it was read aloud at the July 3, 2006 meeting.

“On July 5, 2006, the plaintiffs in a written pleading entitled ‘Updated Case Status Report’ [report] notified the court that the parties had come to a settlement agreement. The pleading detailed the specifics of the agreement as it was stated in the written document signed by the parties. The report . . . [provided] that the parties were dealing with ‘paperwork necessary to formalize their settlement agreement.’ Ironically, the plaintiffs in their report [asked] the court to ‘retain jurisdiction over this matter until the defendants [had] fully complied with all terms set forth in the settlement agreement.’

“The parties proceeded to work on and prepare releases to be signed by both sides, though the provision of releases was not a part of the written settlement agreement. The parties hit a roadblock when the plaintiffs sought a release from Trista Clyne, a nonparty witness, and she declined to provide one. The plaintiffs [had] an apprehension that without that release, they [were] exposed to the possibility that Ms. Clyne could initiate a lawsuit against them for a perceived civil wrong emanating from oral or written statements made by the plaintiffs in the course of this litigation. The defendants take the position that this release [was] not necessary to the completion of the settlement agreement.”

As a result of the parties’ inability to resolve the issue related to whether a release was necessary, the defendants filed a motion to enforce the settlement agreement. In a memorandum of decision filed on October 27, 2006, the court granted the defendants’ motion, pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). The court found that the parties intended to enter into a binding and final agreement terminating all matters in the present litigation. Between November 6, 2006, and January 31, 2007, the plaintiffs filed several motions, which were denied by the court. Thereafter, on January 31, 2007, pursuant to the procedural requirements for a stipulated judgment from a tax appeal, the court solicited the necessary documentation for a finding of value from the parties and then rendered judgment with direction to adjust the values assigned to the real estate, in accordance with the July 3, 2006 settlement agreement of the parties. The matter was continued to February 7, 2007, at which time the court denied additional motions filed on February 5, 2007, by the plaintiffs. This consolidated appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court abused its discretion by failing to disqualify itself. Specifically, the plaintiffs argue that the court displayed a pattern of unreasonable departures from judicial procedures, which resulted in errors of law and manifested actual bias toward the plaintiffs and partiality toward the defendants and the defendants’ counsel. We decline to review this unpreserved claim.

At the outset, “[i]t is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993); see also Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). “A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial.” (Internal quotation marks omitted.) McGuire v. McGuire, 102 Conn. App. 79, 83, 924 A.2d 886 (2007). In the present case, the plaintiffs filed two separate motions for disqualification, which were denied by the court, and, therefore, the plaintiffs have preserved a claim of judicial bias for appellate review. They have not, however, briefed any of the grounds alleged in either motion for disqualification.

On January 10, 2007, the plaintiffs filed the first motion for disqualification on the ground that the court departed from judicial procedures. The plaintiffs referred to rulings of the court on several motions in late 2006, following the July 3, 2006 meeting held by the parties, during which the parties discussed terms of a settlement agreement. On January 22, 2007, the plaintiffs filed the second motion for disqualification on similar grounds. The plaintiffs do not claim that the court improperly denied their motions for disqualification. Rather, the plaintiffs have raised new claims of judicial bias for the first time on appeal. The plaintiffs have asserted that the court should have disqualified itself on the basis of procedural discrepancies that occurred prior to the July 3, 2006 meeting held by the parties. Specifically, the plaintiffs refer to several motions they filed, which were denied during late 2005 and early 2006, to demonstrate judicial bias. In addition to the procedural defects, the plaintiffs also assert that the court should have disqualified itself because the judge should have known of litigation that her immediate family members were involved in against clients of the defendants’ counsel.

Our review of the record reveals that the plaintiffs did not distinctly raise the claims of judicial bias mentioned in their briefs before the trial court, and they have not requested any extraordinary level of review of their unpreserved claims. “This court often has noted that it is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943, cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).

We are mindful of the plaintiffs’ pro se status. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Nonetheless, [although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Sakon v. Glastonbury, 111 Conn. App. 242, 258 n.5, 958 A.2d 801 (2008), cert. denied, 290 Conn. 916,956 A.2d 554 (2009). Accordingly, because the plaintiffs have not requested any extraordinary level of review of their unpreserved claims, we decline to afford review to these newly raised claims of judicial bias.

II

Next, the plaintiffs claim that the court improperly enforced the settlement agreement without first ascertaining whether the parties came to an identical understanding of what constituted a complete settlement agreement. Specifically, the plaintiffs argue that because documents, such as a release by the parties, were necessary additions to formalize the settlement agreement, the settlement agreement on its own was never final or complete on July 3, 2006. The plaintiffs argue that the court improperly enforced the settlement agreement. We disagree.

The parties do not dispute the settlement terms that they agreed to at the July 3, 2006 meeting. In fact, the plaintiffs notified the court on July 5, 2006, that the parties came to a settlement agreement and specified to the court the terms agreed upon. The issue raised by the plaintiffs involves additional terms relating to release documents that were intended to formalize and to complete the settlement agreement. The plaintiffs assert that the settlement agreement was not complete because the necessary parties had to sign release documents to end all litigation. The defendants assert that the release documents were incidental to the already completed and agreed on terms of the settlement agreement. The court found that the parties worked on release documents after the settlement agreement was created, although the written settlement agreement contained no provision for releases therein. The court further found that neither party made the undisputed settlement agreement contingent on other matters to be resolved at a later date. It then enforced the settlement agreement, under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811. To address this issue, we will refer to Viera v. Cohen, 283 Conn. 412, 927 A.2d 843 (2007).

In Viera, our Supreme Court distinguished the meaning of the terms “settlement” and “release.” “A settlement is a legally enforceable agreement in which a claimant agrees not to seek recovery outside the agreement for specified injuries or claims from some or all of the persons who might be liable for those injuries or claims. ... It is well established that, to be a legally enforceable agreement, a settlement must be supported by consideration. ... Its goal is to further finality and to avoid the costs and uncertainties of protracted litigation.” (Citations omitted; internal quotation marks omitted.) Id., 427. Furthermore, “[i]t involves an agreement that a substituted performance is acceptable instead of what was previously claimed to be due; thus, each party yields something and agrees to eliminate both the hope of gaining as much as he previously claimed and the risk of losing as much as the other party previously claimed.” (Emphasis added.) 15A Am. Jur. 2d 728, Compromise and Settlement § 1 (2000).

“A release is an agreement to give up or discharge a claim. ... It terminates litigation or a dispute and [is] meant to be a final expression of settlement .... A release acts like a contract and, as with any contract, requires consideration, voluntariness and contractual capacity.” (Citations omitted; internal quotation marks omitted.) Viera v. Cohen, supra, 283 Conn. 427-28. “[R]eleases and settlements . . . represent a surrender of a cause of action, perhaps for a consideration less than the injury received . . . but, nevertheless, a surrender pursuant to an agreement. ... An agreement is [t]he union of two or more minds in a thing done or to be done; a coming together of parties in opinion or determination .... Thus, a settlement and release reflect concerted behavior. . . . [and] are agreements that generally go hand in hand.” (Citations omitted; internal quotation marks omitted.) Id., 428-29.

Viera demonstrates that although settlements and releases are agreements that enforce or strengthen each other’s purpose to terminate litigation, one is not required to enforce the other because each agreement calls for separate actions and consideration. A settlement agreement focuses on terminating present ongoing claims in a cause of action by the substitution of some performance agreed on by both parties, and a release focuses on terminating a right to enforce or pursue claims available in a cause of action.

In the present case, there was no issue of fact concerning the terms of the settlement agreement as written on July 3, 2006. Indeed, the parties do not dispute that the terms of the settlement agreement were clear and unambiguous. Notwithstanding the additional documents that the parties did not agree on, such as the release, the settlement agreement, alone, was enforceable. “The test of disputation . . . must be applied to the parties at the time they entered into the alleged settlement. To hold otherwise would prevent any motion to enforce a settlement from ever being granted.” DAP Financial Management Co. v. Mor-Fam Electric, Inc., 59 Conn. App. 92, 97-98, 755 A.2d 925 (2000). Therefore, we conclude, pursuant to Audubon Parking Associates Ltd. Partnership, that the court properly enforced the undisputed terms of the settlement agreement.

Further, for the reasons we have set forth, we conclude that we need not consider the merits of the plaintiffs’ third claim because the court properly enforced the settlement agreement. As a result, a review of the court’s denial of a motion relating to a jury trial would provide no practical relief to the plaintiffs because the litigation between the parties was terminated properly. The claim, therefore, is moot, and we dismiss this portion of the appeal.

III

Last, the plaintiffs claim that the court improperly denied a series of motions they filed subsequent to the filing of the defendants’ motion to enforce the settlement agreement. We decline to review this claim, however, because it is briefed inadequately. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n.4, 952 A.2d 776 (2008). In the present case, the plaintiffs fail to cite any legal authority or to provide an analysis of legal authority with regard to their claim to support their position. We therefore decline to review this claim.

The appeal is dismissed with respect to the plaintiffs’ jury trial claim. The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, Dawn Massey, filed this appeal as a plaintiff-appellant, and the plaintiff, William Massey, filed as a cross appellant. On September 24, 2007, the Masseys filed a motion for permission for the cross appellant to proceed as an appellant. They asserted that they jointly agreed on the issues to be briefed on appeal and wanted to file a single, or joint, brief. On November 20, 2007, this court granted the joint motion filed by the Masseys and consolidated the appeal and cross appeal.

       Specifically, the plaintiffs claim that the court improperly (1) denied their motion to reargue the court’s granting of the defendants’ motion to enforce the settlement agreement, (2) abstained from ruling on the plaintiffs’ consolidated motion for reconsideration on the court’s granting of the defendants’ motion to enforce the settlement agreement and (3) summarily denied the plaintiffs’ motion to open and to set aside the judgment and several preappeal motions filed on February 5, 2007.
      The preappeal motions included the plaintiffs’ motion to preclude Pasquale Cerino’s appraisals and their motion to vacate the court’s decision to overrule their objection to a proposed finding of fact, which was summarily overruled, a sixth motion for rectification, a motion for articulation regarding a motion for reconsideration, a motion to correct the memorandum of decision filed October 27, 2006, a motion to correct an order dated January 30, 2007, and a motion to correct the court’s findings of fact and judgment.

       After the defendants’ motion to enforce the settlement agreement was granted on October 27, 2006, the plaintiffs filed a motion to reargue and to vacate further orders entered on October 27, 2006. The remaining motions filed thereafter by the plaintiffs are not at issue in this appeal.

       The plaintiffs filed a motion to open and to set aside the judgment and a motion to vacate the summary denial rulings regarding their motion to preclude Pasquale Cerino’s appraisals and to vacate the court’s decision to overrule their objection to a proposed finding of fact, which was summarily overruled, a sixth motion for rectification, a motion for articulation regarding a motion for reconsideration, a motion to correct the memorandum of decision filed October 27, 2006, a motion to correct an order dated January 30, 2007, and a motion to correct the court’s findings of fact and judgment.

       At oral arguments before this court, the plaintiffs acknowledged that this claim was never distinctly raised to the trial court.

       See, e.g., State v. Constantopolous, 68 Conn. App. 879, 883, 793 A.2d 278 (this, court declined to review claim not raised in motion to correct because claim raised for first time on appeal), cert. denied, 260 Conn. 927, 798 A.2d 971 (2002); Caltabiano v. Phillips, 23 Conn. App. 258, 265-66, 580 A.2d 67 (1990) (this court declined to review claim not argued in motion to dismiss because claim raised for first time on appeal).

       Contra Sapper v. Sapper, 109 Conn. App. 99, 103, 951 A.2d 5 (2008) (this court reviewed unpreserved claims under inherent supervisory powers absent plaintiffs request for plain error review because of enormity and extent of plaintiffs allegations).

       The plaintiffs’ claims involve alleged procedural discrepancies, such as the court’s departure from the scheduling order’s deadlines or filing requirements, some of which the plaintiffs argue resulted in improper rulings. We note, however, that even if we were to consider the plaintiffs’ claims, it nevertheless is well settled that adverse rulings do not amount to evidence of judicial bias. See Burton v. Mottolese, 267 Conn. 1, 49-50, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004). “Adverse rulings against a litigant, even if erroneous, are insufficient to establish a judge’s bias or prejudice and are not grounds for disqualification. Previous rulings of a trial judge which are subject to correction on appeal may not form a basis for recusal. Alleged errors of law or procedure are legal issues subject to appeal and are not grounds for disqualification.” (Emphasis added.) 46 Am. Jur. 2d 264, Judges § 147 (2006); see also Bieluch v. Bieluch, 199 Conn. 550, 552-53, 509 A.2d 8 (1986). Accordingly, we would have found no merit to the plaintiffs’ claim of judicial bias.

       Although the plaintiffs’ claims can be viewed as distinct and separate, our consideration of the second claim regarding the enforcement of the settlement agreement necessarily implicates their third claim, and consequently, we will address the plaintiffs’ second and third claims together.

       “A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous. . . . Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.” (Citations omitted; internal quotation marks omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811. “Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a cause, they are effectively contracting for the right to avoid a trial. . . . We hold that a trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement.” (Citation omitted; emphasis added.) Id., 812.

       See Wilcox v. Ferraina, 100 Conn. App. 541, 547-48, 920 A.2d 316 (2007) (“Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” [Internal quotation marks omitted.]).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARTIN M.

    (AC 27807)
    Beach, Robinson and Pellegrino, Js.

      Argued March 9
    officially released June 16, 2009

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PELLEGRINO, J.

The defendant, Martin M., appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). On appeal, the defendant first claims that the kidnapping statute is unconstitutionally vague as applied to him. He also claims that the trial court (1) improperly failed to disclose fully all relevant material for cross-examination following an in camera review of certain confidential records, (2) allowed hearsay testimony of a nurse practitioner under the medical testimony exception to the hearsay rule and (3) improperly considered the recidivism rate of sexual predators in sentencing the defendant in violation of his constitutional rights. We affirm the defendant’s conviction of the two counts of risk of injury to a child and the one count of sexual assault in the first degree. We reverse, however, the defendant’s conviction of kidnapping in the first degree and remand the case for a new trial on that charge in keeping with the recent Supreme Court judgments in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008).

The jury reasonably could have found the following facts. Between October, 1998, and August, 2004, the defendant repeatedly sexually assaulted the victim. The sexual assaults took place in the home that the victim lived in with the defendant, his mother and his sister. The sexual assaults first started when the victim was approximately five years old. The victim would wake up to find that the defendant was on top of him having anal intercourse. This occurred at least once a week. When the victim would wake up to find the defendant sexually assaulting him, he would try to get away from the defendant. When the victim tried to get away, the defendant would grab him by the arms, hold his face down on the mattress and he on top of him. When the victim tried to tell the defendant to stop because it hurt, the defendant would reply, “Shut up.”

In January, 2004, the victim, at his request, went to live with his grandparents. He subsequently began seeing a counselor once or twice a week. One afternoon, after viewing an article regarding sexual abuse, the victim became upset, and his grandmother informed his counselor. The counselor asked the victim about his reaction, and the victim stated to the counselor that the defendant had sexually abused him. The counselor notified the department of children and families, which, in turn, notified the police department. The police department referred the victim to Judith Kanz, a forensic nurse practitioner, who interviewed and examined the victim. Kanz testified at trial as to the statements the victim made to her during her interview of him, as well as the results of her examination of him. After a trial to the jury, the jury found the defendant guilty of two counts of risk of injury to a child, one count of sexual assault in the first degree and one count of kidnapping in the first degree. The defendant was sentenced to twenty years incarceration for sexual assault in the first degree, twenty years incarceration for kidnapping in the first degree and ten years incarceration for each count of risk of injury to a child. The terms of incarceration for the sexual assault and kidnapping were to be served concurrently and the terms of incarceration for each count of risk of injuiy were to be served concurrently to each other but consecutively to the sexual assault and kidnapping. The total effective sentence was thirty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

Since the date of the defendant’s conviction of kidnapping in the first degree, our Supreme Court has adopted a change in its previous interpretation of § 53a-92. See State v. DeJesus, supra, 288 Conn. 418; State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008); State v. Salamon, supra, 287 Conn. 509. On the basis of this change in precedent relative to his kidnapping conviction, the defendant now argues, and the state agrees, that the conviction on that charge should be reversed. We agree.

In State v. Salamon, supra, 287 Conn. 509, our Supreme Court reconsidered and reversed its longstanding jurisprudence that interpreted our kidnapping statutes to include any restraint that was necessary or incidental to the commission of a separate underlying crime. Prior to Salamon, our Supreme Court had previously rejected claims that “the crime of kidnapping was not intended to apply to a restraint that was merely incidental to the commission of another crime.” Id., 531. The court had relied on a literal interpretation of our kidnapping statutes and explained that “because the statutory definitions of the terms ‘restrain’ and ‘abduct’ contain no time or distance specifications, the offense of kidnapping does not require proof that the victim was confined for any minimum period of time or moved any minimum distance.” Id., 531-32. Accordingly, our Supreme Court had held that “a person who restrains another person with the intent to prevent that person’s liberation may be convicted of kidnapping even though the restraint involved in the kidnapping is merely incidental to the commission of another offense perpetrated against the victim by the accused.” Id., 513, citing State v. Luurtsema, 262 Conn. 179, 202, 811 A.2d 223 (2002).

In Salamon, the defendant requested that our Supreme Court revisit and overrule its previous interpretation of our kidnapping statutes. State v. Salamon, supra, 287 Conn. 513. The court did reconsider its previous rulings and on reconsideration held that to commit the crime of kidnapping a defendant must have had the intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id., 542. In changing its interpretation of our kidnapping statutes, the court noted that a considerable majority of state courts have concluded that “the crime of kidnapping does not include conduct involving a restraint that is merely incidental to the commission of some other crime against the victim.” Id., 544. In adopting this new interpretation, the court stated that the test to determine whether kidnapping could be charged in addition to an accompanying felony was “whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.” (Internal quotation marks omitted.) Id., 547.

In State v. DeJesus, supra, 288 Conn. 418, our Supreme Court was careful to note that the holding in State v. Salamon, supra, 287 Conn. 509, “did not refute the long-standing rule that no minimum period of restraint or degree of movement is necessary to establish a kidnapping but established that, when confinement or movement is merely incidental to the commission of another crime, [t]he guiding principal is whether the [confinement or movement] was so much a part of another substantive crime that the substantive crime could not have been committed without such acts . . . .” (Internal quotation marks omitted.) State v. DeJesus, supra, 433. In DeJesus, the court explained that its holding in Salamon established that “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” (Internal quotation marks omitted.) Id. “Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case.” (Internal quotation marks omitted.) Id.

Having decided that the kidnapping count should be reversed because of the Supreme Court holding in State v. Salamon, supra, 287 Conn. 509, we now turn to the appropriate remand. This question was decided in DeJesus when the court held that because the jury was not instructed that it could not find the defendant guilty of kidnapping unless the defendant intended “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [the underlying] crime,” it could have convicted the defendant on the basis of conduct that was not consistent with the holding in Salamon. (Internal quotation marks omitted.) State v. DeJesus, supra, 288 Conn. 438. The Supreme Court held, therefore, that the defendant was entitled to a reversal of his kidnapping conviction and that the matter should be remanded to the trial court for a new trial on the charge of kidnapping so that the jury could be instructed properly. Id., 439. Because in this matter, as in DeJesus, the conviction of kidnapping preceded the holding in Salamon, we follow the holding in DeJesus, and reverse the kidnapping conviction and remand this matter to the trial court for a new trial on the kidnapping charge.

II

The defendant next claims that the court improperly failed to disclose fully all relevant material for cross-examination following its in camera review of the victim’s medical and psychiatric records. We disagree.

Our standard of review of a challenge to a court’s refusal to disclose privileged records is whether there was an abuse of discretion. State v. Webb, 75 Conn. App. 447, 457, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003). Our Supreme Court has stated that “[a]ccess to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused. ... On appeal, the appellate tribunal reviews the confidential records to determine whether the trial court abused its discretion in concluding that no information contained therein is especially probative of the victim’s ability to know and correctly relate the truth so as to justify breaching their confidentiality in disclosing them to the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Francis, 267 Conn. 162, 172, 836 A.2d 1191 (2003), aff'd after remand, 83 Conn. App. 226, 849 A.2d 873, cert. denied, 270 Conn. 912, 853 A.2d 529 (2004).

Our review of the victim’s medical and psychiatric records, viewed in conjunction with the victim’s testimony, leads us to conclude that the court properly determined that the undisclosed medical and psychiatric records did not contain any additional material or exculpatory information. The victim’s undisclosed records do not disclose material that is especially probative of the victim’s ability to know and to relate the truth correctly that would justify breaching the victim’s confidentiality and disclosing the records to the defendant. See id.; see also State v. Storlazzi, 191 Conn. 453, 459-60, 464 A.2d 829 (1983) (victim’s records not disclosed when found not probative of victim’s ability to know and to relate truth correctly and victim’s psychiatric treatment was disclosed to jury through cross-examination).

Furthermore, the court did disclose some of the victim’s records, and, at the close of evidence, the court, sua sponte, stated: “In light of the evidence, I’ll note for the record that I have not heard anything in the evidence that would make me revisit my decision as to the records I reviewed in camera. I don’t find that any of the evidence that I heard makes me feel any different about the exculpatory information that I disclosed, and it doesn’t change my mind that there is something remaining in the records that are not disclosed that is exculpatory . . . .” We conclude that the court fully disclosed the victim’s medical and psychiatric records that were exculpatory and material.

Ill

The defendant’s next claim is that the court improperly admitted hearsay testimony of Judith Kanz, a forensic nurse practitioner, under the medical testimony exception to the hearsay rule. See Conn. Code Evid. § 8-3 (5). The defendant makes several arguments as to why Kanz’ testimony as to what the victim told her during the examination did not satisfy the medical exception to the hearsay rule. First, the defendant argues that Kanz was not a medical provider, did not provide any treatment to the victim and, therefore, was not in the “ ‘chain of medical treatment.’ ” Second, the defendant argues that because Kanz did not see the victim until nine months after the last sexual assault, the victim could not have been seeking medical treatment for injuries that already had healed. Last, the defendant argues that because the police referred the victim to Kanz, her examination of the victim was not for medical purposes but solely for an investigative purpose in preparation of a trial. The defendant, therefore, argues that Kanz’ testimony did not satisfy the medical exception to the hearsay rule but, rather, was improper constancy of accusation testimony and was admitted by the court improperly. The state, on the other hand, argues that Kanz’ examination of the victim was for evaluation and treatment so that the victim’s statements to her were for that purpose, and, accordingly, the court properly admitted Kanz’ testimony concerning those statements under the medical testimony exception to the hearsay rule. We agree with the state.

In State v. Anderson, 86 Conn. App. 854, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005), this court held that testimony from Kanz, a certified nurse practitioner, as to what a victim of sexual assault said to her during the course of a medical examination was admissible under the medical exception to the hearsay rule. Id., 879. As in the present case, the defendant in Anderson argued that because the victim went to the nurse practitioner at the suggestion of the police, rather than for medical care, the medical exception to the hearsay rule did not apply. Id., 871. This court stated that “[t]he key on which the issue of admissibility of the victim’s statement turns is the purpose of the examination” and that the victim had understood that she was going to Kanz so she could be examined for injuries that she may have sustained. Id., 878. This court held, therefore, that the purpose of the examination was not investigatory but, rather, was for medical treatment and concluded that the trial court properly admitted Kanz’ testimony under the medical exception to the hearsay rule. Id., 879.

The present matter is practically indistinguishable from State v. Anderson, supra, 86 Conn. App. 854, except for the amount of time that lapsed between the sexual abuse of the victim and the examination by Kanz. In Anderson, the victim was examined one week to ten days after the last of numerous sexual assaults; id., 878; whereas here, the victim was examined approximately nine months later. It was the same nurse practitioner, Kanz, however, who examined both victims and testified as to her interviews with the victims and her findings after a physical examination. Additionally, in Anderson, the victim was aware that she went to the hospital to be examined for injuries that she may have sustained as a result of the abuse. Id. In the present matter, during the oral history he gave to Kanz, the victim expressed his concerns about constipation, his bowel movements and his fears about whether he was “normal down there” because of the abuse. As in Anderson, we conclude, therefore, that the victim here believed Kanz’ examination was for medical purposes. Accordingly, the court properly admitted Kanz’ testimony of the victim’s statements under the medical exception to the hearsay rule.

IV

Last, the defendant claims that the court improperly considered the recidivism rate of sexual predators when sentencing him, in violation of his constitutional rights. Specifically, the defendant argues that the court improperly labeled him a sexual predator and relied on false information that sexual offenders have high recidivism rates when it determined his sentence. We disagree.

We first start with our well settled law as to what a trial court may consider when fashioning a sentence. “A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial. . . . Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . .

“Nevertheless, [t]he trial court’s discretion ... is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. . . . As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” (Citations omitted; internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 649-50, 858 A.2d 767 (2004). Our standard of review is thus whether the trial court abused its discretion.

The defendant claims that the court improperly considered the recidivism rate of sexual predators in its sentencing of him. He argues that no evidence was admitted at trial that proved he was a sexual predator or that the recidivism rates of sexual predators are high. He argues further that although the court may rely on outside information in fashioning its sentence, for a defendant to have his sentence set aside on the basis of information not presented at trial, he must establish: “(1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence.” State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986). The defendant argues that when the court relied on the high recidivism rate of sexual predators in fashioning the sentence, it met both prongs of Collette, and, therefore, the sentence must be set aside. The defendant’s claim, however, fails on both prongs.

First, we cannot conclude that the information regarding sexual predators recidivism rates is materially false or unreliable. Our Supreme Court has stated on several occasions that sexual offenders are perceived to have high recidivism rates. See State v. Waterman, 264 Conn. 484, 490, 825 A.2d 63 (2003) (“[t]he seriousness of the harm that sex offenders’ actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct” [internal quotation marks omitted]); State v. Misiorski, 250 Conn. 280, 292, 738 A.2d 595 (1999) (“[w]e agree with the Second Circuit Court of Appeals that Connecticut’s sex offender registration and notification statutes were enacted [i]n response to concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders” [internal quotation marks omitted]); see also Roe v. Office of Adult Probation, 125 F.3d47,48 (2d Cir. 1997) (Connecticut adopted its version of Megan’s Law “[i]n response to . . . concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders”).

Our trial courts are entitled to rely on information articulated by our Supreme Court. Accordingly, the court had a reasonable and persuasive basis to consider high recidivism rates when fashioning the defendant’s sentence, and we cannot conclude that it was an abuse of discretion for the court to do so. See State v. Eric M., supra, 271 Conn. 649-50. Moreover, this is the defendant’s third conviction of sexual assault. The defendant, therefore, cannot prevail on his argument that the court’s consideration of the high recidivism rates of sexual offenders, including his recidivism, was based on information that was materially false or unreliable.

Second, our review of the sentencing transcript leads us to conclude that the court’s reliance on the high recidivism rate of sexual predators was just one consideration in the court’s sentence and not one on which the court substantially relied. The court articulated a myriad of reasons as to why it sentenced the defendant to an effective term of thirty years incarceration. The court indicated that it considered, along with the recidivism rate of sexual predators, the defendant’s prior criminal record, his history of violence, in particular his history of domestic violence, the severity of the abuse he inflicted on the victim, his lack of remorse or understanding of the consequences of his actions and the fact that his prior prison sentences have not had any effect on his ability to be a productive member of society. When a claim that a sentence was based on improper considerations is heard on appeal, “we should review the record to ensure that there is a persuasive basis for the conclusion reached by the sentencing court. . . . There is no simple formula for determining what information considered by a sentencing judge is sufficiently reliable to meet the requirements of due process. The question must be answered on a case by case basis.” (Citation omitted; internal quotation marks omitted.) Id., 651. Regardless of whether sexual offenders have a high recidivism rate, the fact of the defendant’s recidivism coupled with his history of violence, the severity of abuse to the victim and his lack of remorse, created a persuasive basis for the court to fashion the sentence that it did. We conclude, therefore, that the court did not abuse its discretion and did not substantially rely on just the high recidivism rates of sexual predators.

The judgment is reversed only as to the conviction of kidnapping in the first degree and the case is remanded for a new trial on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We note that in State v. DeJesus, supra, 288 Conn. 437, our Supreme Court overruled its conclusion in State v. Sanseverino, supra, 287 Conn. 608, that the kidnapping conviction in Sanseverino should be reversed and a judgment of acquittal should be rendered on that charge. Our Supreme Court holds that the proper remedy is a new trial. State v. DeJesus, supra, 437.

       The defendant also argues that the court violated his right to due process when it labeled him a sexual predator without providing him an opportunity to testify and to present evidence to determine whether he was, in fact, a sexual predator. Because we conclude that there were numerous factors the court used in determining the defendant’s sentence, not just that the court found the defendant to be a sexual predator, we conclude that this claim has no merit.

       Sex offender registration and notification statutes came to be known as “Megan’s Law” after they were enacted as a result of the 1994 sexual assault and murder in New Jersey of seven year old Megan Kanka. Roe v. Office of Adult Probation, supra, 125 F.3d 48 n.l.

       The defendant was found guilty, after a jury trial, on May 17, 1989, of sexual assault in the second degree and risk of injury to a child. See State v. Martin [M.], 24 Conn. App. 146, 585 A.2d 1271 (1991). He also pleaded guilty to a charge of sexual assault in the fourth degree on September 17, 1997.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. DAVID A. FERNANDES, JR.
    (AC 28925)
    McLachlan, Haxper and Lavery, Js.

      Argued November 19, 2008
    officially released June 16, 2009

      Ralph U. Bergman, for the appellant (defendant).

      David J. Smith, assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, David A. Fernandes, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a) (1). The sole issue on appeal is whether the transfer of the defendant’s case from the docket for juvenile matters to the regular criminal docket of the Superior Court followed the requirements of the juvenile transfer statute and due process. We conclude that the transfer of the defendant’s case did not meet the requirements of due process and the transfer statute and, accordingly, reverse the judgment of conviction and remand the matter for a juvenile transfer hearing.

The following facts are relevant to the defendant’s appeal. On September 12, 2005, the defendant was issued a juvenile summons and complaint/promise to appear on a charge of conspiracy to commit assault in the second degree in violation of General Statutes §§ 53a-48 and 53a,-60 The charge stemmed from an incident at the defendant’s school on September 1,2005. The defendant’s date of birth is April 4, 1990, making him fifteen years old at the time of the incident. The defendant appeared in Juvenile Court on September 16, 2005, with counsel, and probable cause for the charge was found. On the defendant’s November 11, 2005 appearance in Juvenile Court, the case was transferred to the criminal docket pursuant to General Statutes § 46b-127 (b).

The state, by substitute information, charged the defendant additionally with assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a) (1). The defendant’s jury trial commenced in April, 2007. The jury found the defendant guilty of assault in the second degree as an accessory, and found him not guilty of conspiracy to commit assault in the second degree. On June 1, 2007, the court sentenced the defendant to a total effective term of three years incarceration, execution suspended after one year, with three years probation. This appeal followed.

The requirements for a successful due process claim are well established. “The fourteenth amendment to the United States constitution provides that the State [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, [a defendant] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law. . . . State v. Matos, 240 Conn. 743, 749, 694 A.2d 775 (1997); see State v.Morales, 240 Conn. 727,739,694 A.2d 758 (1997). As a threshold matter, therefore, [a defendant] must show that [he has] a vested liberty interest in [his] juvenile status that is cognizable under the due process clause. Frillici v. Westport, 231 Conn. 418, 437-38, 650 A.2d 557 (1994). Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States. Meachum v. Fano, 427 U.S. 215, [223-27, 96 S. Ct. 2532, 49 L. Ed. 2d 451] (1976). Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 104, 715 A.2d 652 (1998).

As he must, the defendant concedes that his liberty interest in juvenile status does not emanate directly from the state or federal constitutions. See id. “Any [special treatment] accorded to a juvenile because of his [or her] age with respect to proceedings relative to a criminal offense results from statutory authority, rather than from any inherent or constitutional right. . . . [State v. Matos, supra, 240 Conn.] 755; State v. Anonymous, 173 Conn. 414, 417-18, 378 A.2d 528 (1977).” (Internal quotation marks omitted.) State v. Angel C., supra, 245 Conn. 104-105. “[0]nce a state provides its citizens with certain statutory rights beyond those secured by the constitution itself, the constitution forbids the state from depriving individuals of those statutory rights without due process of law.” (Internal quotation marks omitted.) Id., 105, quoting State v. Matos, supra, 749.

Our Supreme Court “has repeatedly affirmed the significance of a transfer order in juvenile proceedings. In In re Ralph M., 211 Conn. 289, 302, 559 A.2d 179 (1989), [the court] recognized that the decision whether to issue a transfer order, because it implicates the relinquishment of juvenile jurisdiction, is a ‘critically important’ stage in the adjudicatory process. See Kent v. United States, 383 U.S. 541, 560-61, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).” In re Edwin N., 215 Conn. 277, 281, 575 A.2d 1016 (1990). Our Supreme Court in considering a due process claim regarding the mandatory transfer provisions of § 46b-127 (a), held that there is no liberty interest in juvenile status prior to a mandatory transfer to criminal court. State v. Angel C., supra, 245 Conn. 103.

The defendant relies heavily on Kent v. United States, supra, 383 U.S. 541, arguing that it mandates a hearing prior to any transfer of a juvenile to the criminal docket. In Angel C., our Supreme Court wrote that "Kent simply stands for the proposition that if a statute vests a juvenile with the right to juvenile status, then that right constitutes a liberty interest, of which the juvenile may not be deprived without due process, i.e., notice and a hearing. Id., 556-58. If the statute at issue does not create a liberty interest, Kent is inapposite.” State v. Angel C., supra, 245 Conn. 106-107.

In Angel C., our Supreme Court was very specific in distinguishing the Connecticut transfer statute from that in Kent. The court held that the mandatory transfer provision of § 46b-127 (a) “expressly precludes the exercise of jurisdiction by the juvenile court .... Moreover, it is implicit in § 46b-127 (a), unlike the statute in Kent, that adult treatment is the rule for such juveniles and that juvenile treatment is a narrow exception. The applicability of Kent cannot be expanded, therefore, beyond the scope of discretionary transfer statutes to mandatory transfer statutes. Section 46b-127 (a) is a mandatory, not discretionary, transfer statute. It is an automatic, mandatory transfer statute with the transfer based exclusively on the age of the defendant and the offense charged.” Id., 108-109. The Supreme Court in Angel C. concluded, therefore, that Kent did not require the conclusion that § 46b-127 (a) violated the defendants’ rights to due process. See id.

Whether § 46b-127 (b) allows the court discretion to consider a motion for transfer is a question of statutory interpretation, over which our review is plenary. See Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 72, 912 A.2d 1008 (2007). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Koczur, 287 Conn. 145, 152-53, 947 A.2d 282 (2008), quoting Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 959 (2006).

The language of § 46b-127 (b) is exceptionally distinct from the mandatory language of subsection (a). To begin, subsection (a) expressly declares that the transfer is automatic and that counsel for the child “shall not be permitted to make any argument or file any motion in opposition to the transfer. . . .” General Statutes §46b-127 (a). No equivalent language exists in subsection (b). Instead, subsection (b) provides that the case shall be transferred only “[u]pon motion of a juvenile prosecutor and order of the court . . . .” General Statutes § 46b-127 (b). The statute, however, does not provide guidance to the court on what discretion the court has to consider a motion to transfer. Because the court’s level of discretion is unclear, we look to the legislative history for guidance.

The legislative history reveals that the transfer statute at issue in the present case was created to model the transfer procedure in the adult courts. 38 H.R. Proc., Pt. 8, 1995 Sess., p. 2952. Representative Dale W. Radcliffe clarified the authority maintained forjudges within this process: “So then a judge ... in carrying out this statute might determine that a hearing was appropriate and might decline to automatically transfer or transfer, even on a finding of probable cause based on the four comers of an affidavit.” Id., p. 2962. Further, the House approved an amendment that “allows a judge, ex parte, on the basis of the affidavits to find probable cause and then still does not require that judge to approve the transfer . . . .” Id., p. 2966, remarks of Representative Dale W. Radcliffe; see also id., p. 2973. We find that subsection (b) is distinct from the mandatory transfer provisions of subsection (a), because the plain language of the statute and the legislative history retains discretion for both the state’s attorney and the judiciary on whether to transfer a juvenile charged with a class C or D felony to adult criminal court.

The plain language of General Statutes § 46b-120 et seq. rests original jurisdiction of children younger than sixteen years of age charged with an unclassified felony or a class C or D felony on the juvenile docket until a prosecutor makes a motion for transfer of the case and the court orders such a transfer. This original jurisdiction creates a liberty interest because the child has an interest in continuing to proceed within the juvenile docket. When a child is adjudicated on the juvenile docket, the proceedings are largely confidential, subject to erasure, and subject to a maximum commitment of four years. General Statutes §§ 46b-124, 46b-146 and 46b-141. This liberty interest, once bestowed by statute, cannot be taken away without due process. See Kent v. United States, supra, 383 U.S. 541. Due process requires notice of the pending transfer and the opportunity for a hearing. See State v. Angel C., supra, 245 Conn. 103.

In the present case, the defendant was represented by counsel when the motion was made to transfer the case to the adult criminal court. The prosecutor represented to the court that the companion case had been transferred to the adult court previously and that there was an interest in keeping the cases together. Counsel for the defendant argued for the court to exercise its discretion to keep the case within the juvenile system. The court responded by stating, “ [ujnfortunately, the statute doesn’t convey any discretion on the Juvenile Court. Discretion is posted solely in that of the . . . state’s attorney’s office, and the adult court judge would have the discretion to reject transfer; the Juvenile Court has no authority to do anything other than sign an order if requested by the prosecutor after a finding of probable cause.” Counsel for the defendant perfected the record by arguing that the statute for class C and D felonies was discretionary and, therefore, requires the approval of the Juvenile Court.

Due process and § 46b-127 (b) require that the defendant be afforded a hearing in which the Juvenile Court judge considers argument from counsel as to whether a case should be transferred to adult criminal court. In the present case, the court allowed defense counsel to make a record of the fact that the defendant had begun counseling and was attending school. The court, however, refused to exercise its discretion to consider the argument presented and to determine whether it should order the transfer. This refusal violated the defendant’s rights to due process and was a misinterpretation of § 46b-127 (b).

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Assault in the second degree has been classified by the legislature as a class D felony. General Statutes § 53a-60 (b).

       General Statutes § 46b-127 (b) provides: “Upon motion of a juvenile prosecutor and order of the court, the case of any child charged with the commission of a class C or D felony or an unclassified felony shall be transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court, provided such offense was committed after such child attained the age of fourteen years and the court finds ex parte that there is probable cause to believe the child has committed the act for which he is charged. The file of any case so transferred shall remain sealed until such time as the court sitting for the regular criminal docket accepts such transfer. The court sitting for the regular criminal docket may return any such case to the docket for juvenile matters not later than ten working days after the date of the transfer for proceedings in accordance with the provisions of this chapter. The child shall be arraigned in the regular criminal docket of the Superior Court by the next court date following such transfer, provided any proceedings held prior to the finalization of such transfer shall be private and shall be conducted in such parts of the courthouse or the building wherein court is located as shall be separate and apart from the other parts of the court which are then being held for proceedings pertaining to adults charged with crimes.”

       General Statutes § 46b-127 (a) provides: “The court shall automatically transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court the case of any child charged with the commission of a capital felony, a class A or B felony or a violation of section 53a-54d, provided such offense was committed after such child attained the age of fourteen years and counsel has been appointed for such child if such child is indigent. Such counsel may appear with the child but shall not be permitted to make any argument or file any motion in opposition to the transfer. The child shall be arraigned in the regular criminal docket of the Superior Court at the next court date following such transfer, provided any proceedings held prior to the finalization of such transfer shall be private and shall be conducted in such parts of the courthouse or the building wherein court is located as shall be separate and apart from the other parts of the court which are then being held for proceedings pertaining to adults charged with crimes. The file of any case so transferred shall remain sealed until the end of the tenth working day following such arraignment unless the state’s attorney has filed a motion pursuant to this subsection, in which case such file shall remain sealed until the court makes a decision on the motion. A state’s attorney may, not later than ten working days after such arraignment, file a motion to transfer the case of any child charged with the commission of a class B felony or a violation of subdivision (2) of subsection (a) of section 53a-70 to the docket for juvenile matters for proceedings in accordance with the provisions of this chapter. The court sitting for the regular criminal docket shall, after hearing and not later than ten working days after the filing of such motion, decide such motion.”

       “While it is normally true that this court will refrain from interfering with a trial court’s exercise of discretion . . . this presupposes that the trial court did in fact exercise its discretion. . . . Where . . . the trial court is properly called upon to exercise its discretion, its failure to do so is error.” (Citations omitted.) State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. ROY A. SCHILLER
    (AC 28855)
    Bishop, Lavine and Robinson, Js.

      Argued March 16
    officially released June 16, 2009

      Jeffrey C. Kestenband, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Warren C. Murray, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Roy A. Schiller, appeals from the judgment of conviction, rendered after a jury trial, of twelve counts of identity theft in violation of General Statutes (Rev. to 2003) § 53a-129a and five counts of identity theft in the third degree in violation of General Statutes § 53a-129d. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the state’s improper comments during closing argument to the jury deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In September, 2000, the defendant and his son moved to Connecticut. A few months later, the defendant’s elderly parents, Edward Schiller and Minnie Schiller, and his brother also moved to Connecticut. The defendant allowed his parents and his brother to stay with him and his son in his two bedroom condominium. In February, 2002, the defendant and his family moved into a house in Brookfield that he and his parents had purchased. Because the defendant had previously filed for bankruptcy, his parents obtained the mortgage loan to purchase the house.

Thereafter, the defendant and his parents decided to apply for credit cards to finance certain improvements to their house. Due to the defendant’s poor credit history, the defendant suggested that he and his parents open a couple of accounts together. The defendant’s son helped Edward Schiller and Minnie Schiller obtain the credit cards online. Subsequently, the defendant used his parents’ credit cards, and more specifically, his mother’s Capital One credit card, for various purposes, including to purchase merchandise, to go on vacation and to obtain cash advances for gambling at the Mohegan Sun casino. Although the defendant testified that the credit cards were issued to his parents with him listed as an authorized cosigner, Minnie Schiller testified that she did not authorize him to make any charges on her credit card and that he did so without her knowledge or permission. There was ample evidence offered to support the defendant’s conviction of those charges.

The defendant was charged with twenty-seven counts of identity theft. Following a jury trial, the defendant was convicted of seventeen counts of identity theft and was sentenced to a total effective term of five years imprisonment, execution suspended after six months, and five years probation. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support his conviction. Specifically, the defendant asserts that the state failed to introduce evidence that he had obtained his mother’s personal identifying information or that he did so after the enactment of the identity theft statute. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009).

The conduct for which the defendant was charged occurred both before and after October 1, 2003. The conduct that occurred prior to October 1, 2003, was governed by General Statutes (Rev. to 2003) § 53a-129a. Section 53a-129a was enacted in 1999. See Public Acts 1999, No. 99-99. The conduct that occurred on or after October 1, 2003, was governed by an amended version of the statute, General Statutes (Rev. to 2003) § 53a-129a, as amended by Public Acts 2003, No. 03-156, and codified as General Statutes §§ 53a-129a and 53a-129d. The defendant claims that the state failed to prove that he had obtained his mother’s personal identifying information on the ground that there was no evidence as to the personal identifying information he had obtained to acquire her credit card. The defendant’s argument is flawed, however, because it is premised on his mistaken belief that he was charged with obtaining his mother’s personal identifying information to obtain the Capital One credit card. The defendant, however, was charged simply with obtaining his mother’s personal identifying information, specifically, her credit card number, and using it to obtain certain goods and services. Thus, the state was not required to prove how the credit card was initially acquired from Capital One but, more directly, that he obtained his mother’s credit card number and used it to obtain goods or services.

Additionally, although neither Edward Schiller nor Minnie Schiller could recall when the Capital One account was opened, both the defendant and his son testified that it was after they moved into the house in Brookfield in February, 2002. On this basis, the jury reasonably could have inferred that the defendant obtained his mother’s credit card number after that date and, consequently, after the date of the enactment of the identify theft statute. Accordingly, the defendant’s sufficiency of the evidence claim fails.

II

The defendant also claims that two improper remarks made by the state during closing argument deprived him of a fair trial. We are not persuaded.

“[I]n analyzing claims of prosecutorial [impropriety], [whether they are preserved or not] we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). With this in mind, we address the defendant’s claims in turn.

A

The defendant first claims that the state improperly argued that he failed to call a witness to corroborate certain testimony without prior notice to him and approval of the court in violation of State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). In Malave, however, the Supreme Court explained that “[t]he giving of a [missing witness] charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” (Internal quotation marks omitted.) Id., 738. Thus, although a claim of prosecutorial impropriety warrants review even if the defendant fails to preserve it at trial; State v. D’Haity, 99 Conn. App. 375, 382, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007); “[t]he defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of the claim.” State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912,931 A.2d 932 (2007). Accordingly, we decline to review this claim.

B

The defendant also claims that the state improperly appealed to the passions and emotions of the jury by implying that he hoped that his parents would die before they discovered his use of their credit cards. During its rebuttal argument, the state argued: “I’d point out, that perhaps the ultimate gamble was, and you may be aware of this, I’m sure he was familiar with the age of his parents, how old they were, you know, sometimes actuaries know these types of things, but this is a classic case of a person who is a gambler and who cannot control that gambling, got access to somebody else’s credit cards, ran up—ran them up to the casino, unbeknownst to them. And, I’d ask you to find him guilty.” The defendant contends that in making this argument to the jury, the state “attributed parricidal motives and thoughts to [him].”

The evidence at trial indicated that both of the defendant’s parents were in their eighties. The state asserts that it is unclear from this statement whether the implication was that the defendant hoped that his parents would die before they discovered that he had used their credit cards without their permission or whether, because of his parents’ advanced age, they were easy targets.

Our Supreme Court has stated that “[w]e are mindful . . . that closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify'prosecutorial [impropriety], they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 441, 902 A.2d 636 (2006). Because the meaning of the state’s remark is unclear, we cannot conclude that it was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although several cards were obtained, the defendant’s use of Minnie Schiller’s Capital One card is involved in this appeal. The defendant was also charged in several counts with identity theft regarding a credit card in his father’s name. He was acquitted of those charges.

       General Statutes (Rev. to 2003) § 53a-129a (a) provides: “A person is guilty of identity theft when such person intentionally obtains personal identifying information of another person without the authorization of such person and uses that information for any unlawful purpose including, but not limited to, obtaining, or attempting to obtain, credit, goods, services or medical information in the name of such other person without the consent of such other person. As used in this section, ‘personal identifying information’ means a motor vehicle operator’s license number, Social Security number, employee identification number, mother’s maiden name, demand deposit number, savings account number or credit card number.”

       General Statutes (Rev. to 2003) § 53a-129a, as amended by Public Acts 2003, No. 03-156 (P.A. 03-156), provides in relevant part: “(a) A person commits identity theft when such person intentionally obtains personal identifying information of another person without the authorization of such other person and uses that information to obtain or attempt to obtain, money, credit, goods, services, property or medical information in the name of such other person without the consent of such other person.
      “(b) As used in this section, ‘personal identifying information’ means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual including, but not limited to, such individual’s name, date of birth, mother’s maiden name, motor vehicle operator’s license number, Social Security number, employee identification number, employer or taxpayer identification number, alien registration number, government passport number, health insurance identification number, demand deposit account number, savings account number, credit card number, debit card number or unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation. . . .”
      General Statutes § 53a-129d, which was enacted as § 4 of P.A. 03-156, provides: “(a) A person is guilty of identity theft in the third degree when such person commits identity theft as defined in section 53a-129a.
      “(b) Identity theft in the third degree is a class D felony.”


author: BEACH, J. MIHALAKOS, J.,

text:
    STATE OF CONNECTICUT v. MARTHA SLIGH
    (AC 28974)
    Lavine, Beach and Mihalakos, Js.
    Argued October 16, 2008
    officially released June 16, 2009

      W. Theodore Koch III, special public defender, with whom, on the brief, was William T. Koch, Jr., special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael L.

      Regan, state’s attorney, and Mary Jean Kanabis, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Martha Sligh, appeals from the judgment of the trial court finding her in violation of probation and sentencing her to three months incarceration. On appeal, the defendant claims that there was insufficient evidence to sustain the finding of a violation of probation. We affirm the judgment of the trial court.

The following procedural history and facts are relevant to our discussion of the issue on appeal. On October 12, 2005, having pleaded guilty to breach of the peace in the second degree, the defendant was sentenced to six months incarceration, execution suspended, with eighteen months of probation. One of the conditions of the defendant’s probation, which she signed on October 12, 2005, was a general condition that stated: “Do not violate any criminal law of the United States, this state or any other state or territory.” On June 12, 2006, after an altercation with Kenneth O’Neal, which resulted in the defendant’s arrest, the court issued a protective order prohibiting her from assaulting O’Neal. This protective order was in effect on October 10, 2006, when the defendant was involved in another incident involving O’Neal. The defendant was arrested and charged with breach of the peace in the second degree in violation of General Statutes § 53a-181, as well as criminal violation of a protective order in violation of General Statutes § 53a-223b.

On the basis of the alleged crimes underlying the arrest, the defendant was charged with violation of probation pursuant to General Statutes § 53a-32. A violation of probation hearing was held on June 13, 2007. At the hearing, the court heard testimony from two New London police officers, Michael Hedge and Wayne Neff. Hedge testified that he observed a man and the defendant fighting inside a truck. They were punching each other. On cross-examination, when asked if the defendant was acting in self-defense, Hedge testified that he saw the defendant and O’Neal throwing punches at each other. When defense counsel probed further regarding self-defense, Hedge testified that self-defense may have been possible but that what he saw was the parties hitting one other. On recross-examination, Hedge testified that he did not see O’Neal restraining the defendant. He only observed punches being thrown.

Neff testified that upon his arrival at the scene, both parties had fresh cuts and were bleeding. Additionally, he testified that the defendant told him that she had been fighting with O’Neal over the truck and that she had tried to take the license plate off the truck so that he could not drive it. On cross-examination, when asked if the defendant was acting in self-defense and tiying to fend O’Neal off, Neff responded that he did not believe that the defendant was acting in self-defense because she did not leave the scene when she had the opportunity to walk away.

After the state had rested and the defendant had moved for a judgment of acquittal, which motion the court denied, the defendant testified. She stated that O’Neal was tiying to take the truck keys away from her and that she was trying to keep the keys so he could not drive off with the truck. The defendant conceded that an incident did occur between her and O’Neal over the truck keys while both parties were in the truck and that a protective order was in place at the time of this incident.

Following the presentation of evidence, the court found, by a fair preponderance of the evidence, that the defendant had violated her probation by violating the protective order, which prohibited her from assaulting O’Neal, and that the assault of O’Neal was witnessed by a police officer. As a result of this violation, the court sentenced her to three months incarceration. This appeal followed. Additional facts will be set forth as necessary.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Preston, 110 Conn. App. 809, 811, 956 A.2d 590 (2008). In the present appeal, the defendant challenges the court’s finding that she violated her probation, which is the first component of the probation violation analysis.

In reviewing a court’s finding that a defendant has violated probation, “we may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Durant, 94 Conn. App. 219, 224, 892 A.2d 302 (2006), aff d, 281 Conn. 548, 916 A.2d 2 (2007).

I

The defendant claims that there was insufficient evidence to sustain the court’s finding of a violation of probation. She bases her claim on the ground that the state had the burden to disprove self-defense by a preponderance of the evidence and that it failed to do so. Implicit in the defendant’s argument is the claim that the court improperly placed the burden of proving self-defense on her. The state argues that the question of whether the state or the defendant bears the burden of proof on self-defense in a probation revocation hearing appears to raise a question of first impression and that the burden of proof falls on the defendant.

We need not reach the issue of whether the court properly placed on the defendant the burden to prove self-defense because it appears from the record that the court did not so allocate the burden. At the conclusion of the state’s case, the defendant moved for a judgment of acquittal. The defendant stated that the state had the burden to disprove self-defense and argued that the state had not met its burden in proving a violation of probation. In response, the state argued that there must be some minimum evidential showing by the defendant as to self-defense before the state has the obligation to disprove the claim. The state argued that “the evidence is actually that it was a mutual fight with both people throwing punches and no indication that the police . . . saw anything that looked like self-defense or that there was any claim by the defendant that it was self-defense.” The court denied the motion and stated that the evidence demonstrated that the defendant did not claim self-defense and that the defendant had not “shown any evidence of self-defense.”

At the close of evidence, the defendant argued that the state had the burden to disprove self-defense beyond a reasonable doubt. The defendant further argued that the state had not met its burden of proving a violation of probation. The state argued that the defendant never indicated in her testimony that she was acting in self-defense. The court found by a preponderance of the evidence a violation of probation. In making this finding, the court stated that “the state had met its burden.” This rather cryptic statement must have meant either that the defendant had not introduced sufficient evidence to oblige the state to assume the burden as to the defense and the state had satisfied its burden as to the other elements, or that even if the defendant had introduced sufficient evidence so as to oblige the state, the state had satisfied its burden of disproving the defense.

The court found by a preponderance of the evidence that the state had proved that the defendant had violated her probation. Although in its oral ruling the court did not expressly state that the state had met its burden to disprove self-defense, there is nothing in the record to suggest that it placed any burden on the defendant, other than perhaps the burden initially to introduce some evidence of self-defense. The court’s ruling logically would not mean that the defendant had not met a burden of proving self-defense. The defendant bases her claim on the grounds that the state had the burden to disprove self-defense by a preponderance of the evidence and that the court improperly placed the burden of disproving self-defense on her. We need not address the defendant’s claim concerning the burden of proof because the court never held that the defendant had the burden to prove self-defense. The court instead held that the state’s burden was satisfied.

Without deciding whether, as a matter of law, the defendant has the burden in the context of a violation of probation hearing, we conclude that there was sufficient evidence to support the court’s finding that the defendant had violated a condition of her probation. There was evidence that the defendant had assaulted O’Neal. From the testimony of Hedge and Neff, the court reasonably could have found that the defendant and O’Neal were engaged in a fight over the truck. Hedge testified that he saw punches being thrown and that O’Neal did not restrain the defendant in any way from leaving. The defendant testified that she was trying to keep O’Neal from getting her keys and driving away in the truck. On the basis of this evidence, it was not clearly erroneous for the court to have rejected the defendant’s claim of self-defense and to have found that the defendant was in violation of probation.

II

For the reasons stated in part I, we do not believe that the court placed the burden of proving self-defense on the defendant. We nonetheless believe it appropriate to respond to the concurring opinion, which suggests that in the circumstances presented in this case, the defendant in fact properly bore the burden of proving self-defense. The concurrence suggests the following argument. A violation of probation hearing is a civil proceeding, and a defendant in a civil assault case for damages has the burden to prove self-defense, if she asserts the defense. Therefore, a defendant in a violation of probation hearing has the burden to prove self-defense.

This argument may break down for two reasons. Most critically, the state claims that the defendant committed the crimes of breach of the peace and criminal violation of a protective order, not that the defendant tortiously caused damages. A crime has not been proved unless the state disproves self-defense, at least where the defendant adequately introduces the issue.

Second, a violation of probation hearing, while technically a civil proceeding, arises out of criminal proceedings, frequently has consequences impheating incarceration and, not entirely trivially, is governed by statutes codified in titles devoted to criminal law and procedure. See generally State v. Soldi, 92 Conn. App. 849, 857, 887 A.2d 436 (burden shifting in violation of probation context), cert. denied, 277 Conn. 913, 895 A.2d 792 (2006); State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 586-87, 326 N.W.2d 768 (1982) (state appears to have burden to disprove self-defense in probation revocation hearing); see also 2 N. Cohen, Law of Probation and Parole (2d Ed. 1999) § 26:15 (“Once the state has met its burden of producing sufficient evidence of the violation, the violator must be afforded the opportunity to rebut the government’s case, either by discrediting the state’s evidence or by proving a viable defense. The burdens of production and persuasion for these defenses are probably the same in revocation hearings as in criminal trials.”). The issue of who bears the burden has to date not conclusively been resolved and need not conclusively be resolved here.

The judgment is affirmed.

In this opinion LAVINE, J., concurred.

MIHALAKOS, J.,

concurring. I agree with the majority that the defendant, Martha Sligh, cannot prevail on her claim that there was insufficient evidence from which the court could find that she had violated her probation. I respectfully write separately because I am not persuaded by the majority’s conclusion that the issue of who bears the burden of proving self-defense need not be reached.

In State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994), our Supreme Court defined the standard of proof required with respect to probation revocation proceedings, holding that the state must prove by a fair preponderance of the evidence that the defendant had violated probation. The court explained that “ [t]he function of the burden of proof employed by the court is to allocate] the risk of error between the litigants and indicate] the relative importance of the ultimate decision. . . . For example, the proof beyond a reasonable doubt standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. . . . The preponderance of the evidence standard indicates that the litigants should share equally the risk of error . . . because the interests at stake have roughly equal societal importance.” (Citations omitted; internal quotation marks omitted.) Id., 293-94.

Our Supreme Court determined that a violation of probation hearing is akin to a civil proceeding, which mirrors federal law that “[although a [probation] revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79 L. Ed. 2d 409, reh. denied, 466 U.S. 945, 104 S. Ct. 1932,80 L. Ed. 2d 477 (1984).” (Internal quotation marks omitted.) State v. Davis, supra, 229 Conn. 295. The court fully agreed with those authorities that hold that the probation revocation proceeding established by General Statutes § 53a-32 is akin to a civil proceeding. See Turner v. State, 784 S.W.2d 342, 344 (Mo. App. 1990) (“ [different levels of proof are required in the probation revocation proceeding, a civil matter, and in the criminal trial”); State v. Hodges, 798 P.2d 270,278 (Utah App. 1990) (“the proceeding for revocation of probation is not a criminal prosecution” [internal quotation marks omitted]). Having thus established that the nature of the probation proceeding is akin to a civil proceeding, it follows that the burden of proving a claim of self-defense in a probation proceeding is upon the defendant. See Manning v. Michael, 188 Conn. 607, 618, 452 A.2d 1157 (1982) (affirming trial court conclusion that defendant failed to meet burden of establishing he acted in self-defense). Accordingly, I would conclude that in a violation of probation proceeding, the defendant bears the burden of proving self-defense.

The majority opinion references State v. Pauling, 102 Conn. App. 556, 571, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007), for the proposition that a defendant has only a burden of production, not a burden of persuasion, for a claim of self-defense and accordingly, that the state must disprove a claim of self-defense beyond a reasonable doubt. Pauling, however, refers to the state’s burden of disproving a defendant’s affirmative defense of self-defense in a criminal proceeding. Id. Our Supreme Court has held that a violation of probation proceeding is not a criminal proceeding but, rather, is akin to a civil proceeding. See State v. Davis, supra, 229 Conn. 295. Therefore, I would conclude that regardless of whether the underlying offense that the defendant is charged with is criminal, the violation of probation proceeding itself is a civil proceeding, and, accordingly, it should be governed by civil standards.

Accordingly, in the present matter, I would conclude that the court properly determined that the defendant failed to meet her burden of establishing that she was acting in self-defense and, further, that the state met its burden of proving a violation of probation by a preponderance of the evidence.

I respectfully concur in affirming the judgment of the trial court.

       The evidence was sufficient to allow the court to find a violation of probation on a determination that the defendant had assaulted O’Neal, thereby violating a protective order prohibiting her from doing so.

       See, e.g., State v. Pauling, 102 Conn. App. 556,571,925 A.2d 1200 (“Under our Penal Code ... a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. . . . Once the defendant has done so, it becomes the state’s burden to disprove the defense beyond a reasonable doubt. ... As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 924, 933 A.2d 727 (2007).

       In the context of a violation of probation hearing, the state’s burden of proof is the preponderance of the evidence standard.