author: BORDEN, J.

text:
    MISTY WILLIAMS v. FREEDOM OF INFORMATION COMMISSION
    (AC 28254)
    DiPentima, Robinson and Borden, Js.

      Argued February 21
    officially released June 17, 2008

      Misty Williams, pro se, the appellant-appellee (plaintiff).

      Dawn Massey, pro se, the appellee-appellant (intervening plaintiff).

      Trade C. Brown, principal attorney, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, Misty Williams, appeals from the judgment of the trial court dismissing her administrative appeal from the decision of the defendant, the freedom of information commission (commission). The commission dismissed her complaints regarding records that she had requested from the town of Branford, pursuant to the freedom of information act (act), General Statutes § 1-200 et seq. The plaintiff claims that the court improperly (1) reviewed the commission’s determination of legal issues pursuant to the substantial evidence standard and (2) interpreted the meaning of the terms “certifying” and “page,” as used in the act. Although we agree that the court employed an improper standard of review to evaluate the commission’s legal conclusions regarding the meaning of these statutory terms, we nonetheless affirm the judgment of the trial court.

The plaintiff appealed to the trial court from eight final decisions of the commission. The court dismissed the appeal, and this appeal followed.

The relevant procedural and factual history is as follows. The plaintiff, on behalf of the intervening plaintiff, Dawn Massey, requested various town documents from the town of Branford. Dissatisfied with the number and quality of the documents that she received from the town, the plaintiff filed eight letters of complaint with the commission, each of which contained multiple complaints. These letters were filed between September 9 and November 9, 2004. Many of the complaints alleged that certain documents were improperly certified, pursuant to General Statutes § 1-212, for various reasons. In her letter dated September 29, 2004, the plaintiff asserted that she was overcharged, also pursuant to § 1-212, for the copies of the town records that she had received. Among the arguments the plaintiff asserted was that § 1-212 allows the town to charge at most fifty cents for each sheet of paper of copied records it provides, regardless of whether information is copied on one or both sides of the sheet of paper. In other words, the plaintiff asserted that the term “page,” as used in the statute, refers to both sides of a sheet of paper. The commission grouped the eight letters of complaint and accorded them three separate hearings. The commission produced eight final decisions, disposing of each of the plaintiffs letters individually. The commission addressed the plaintiffs September 29, 2004 letter, regarding charges for copies of records, in Williams v. Clyne, FIC 2004-445 (September 14, 2005). In its final decision, the commission determined that the term “page,” as used in the statute, means one side of a piece of paper. Thus, the commission concluded that the town did not violate the act in this regard. The commission also addressed all of the plaintiffs various complaints, asserted in four of the eight letters, regarding the proper certification of documents in the same final decision. The commission concluded that “[t]he word ‘certifying’ is not defined in the . . . [a]ct, and the requirements for ‘certifying any copy’ or ‘certifying to any fact’ are not contained in the . . . [a]ct. . . . It is concluded that § 1-212 (e) . . . only establishes a fee for certifying any copy of a public record, or certifying to any fact appearing in a public record, and does not set forth requirements for the form or content of such certifications.”

The plaintiff appealed to the trial court from each of the commission’s eight final decisions. The plaintiff claimed, among other things, that the commission, in its final decisions, improperly determined that the term “certifying” had no statutory meaning and misinterpreted the term “page” to mean one side of a sheet of paper. The court, apparently viewing the questions of the meaning of “certifying” and “page,” as used in the act, as factual questions, concluded that the commission’s determinations in those regards were supported by substantial evidence. Accordingly, the court dismissed the plaintiffs appeal.

I

We first address the plaintiffs claim that the court employed an improper standard of review when evaluating the commission’s conclusions concerning the meaning of the statutory terms “certifying” and “page.” The plaintiff argues that the issue of the statutory meanings of those terms are questions of statutory interpretation and, therefore, should have been accorded plenary review. We agree.

We first note that our reading of the court’s memorandum of decision leads us to conclude that, as the plaintiff contends, it considered the meaning of the statutory terms “certifying” and “page” to be factual questions subject to a deferential scope of review, namely, whether they were supported by substantial evidence in the record. Indeed, the commission does not suggest otherwise; in fact, it contends that because the terms are ambiguous, they present questions of fact and, therefore, must be sustained as supported by substantial evidence.

Although the court applied an improper standard of review to these two issues, we nonetheless address them on their merits. The parties have had full opportunity to brief them, they present questions of law without the need for further fact-finding, and the court’s ultimate conclusions were correct. Thus, we affirm the trial court’s judgment for reasons other than those on which it relied. See State v. Vines, 71 Conn. App. 359, 367, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002).

We next consider whether the commission’s determinations of the meaning of these two statutory terms should be afforded any deference. We conclude that they should not.

Our Supreme Court has recently clarified the question of “the proper standard to apply in determining when agency deference is appropriate .... As we frequently have stated, [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642, 708 A.2d 202 (1998); [see also] MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001). We have determined, therefore, that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation .... Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 390, 709 A.2d 1116 (1998); accord Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 121, 742 A.2d 1257 (2000) (government agency’s reasonable, time-tested interpretation should be accorded great weight by the courts); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 719, 546 A.2d 830 (1988) (deference to . . . time-tested agency interpretation of a statute, but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency’s interpretation is reasonable). Consequently, an agency’s interpretation of a statute is accorded deference when the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable. Cf. Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, supra, 390 n.18 (finding no deference warranted to agency interpretation when agency had failed to make public declaration of interpretation and had applied interpretation for only four years). . . . Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 261-63, 788 A.2d 60 (2002).” (Internal quotation marks omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007).

In the present case, the meaning of the terms “certifying” and “page,” as used in the act, present questions of statutory interpretation for the court. Furthermore, no deference is due the agency’s determination of their meanings. Although, as both the plaintiff and the commission agree, both those terms may be regarded as ambiguous, those determinations by the commission have not been subjected to judicial scrutiny and have not been time tested by the agency consistently over a long period of time.

We therefore proceed to the familiar judicial task of statutory interpretation of the terms, in a plenary fashion. See Chambers v. Electric Boat Corp., 283 Conn. 840, 844-45, 930 A.2d 653 (2007). This process involves the determination of the meaning of the statutory language as applied to the facts of the case, which also involves the question of whether the language so applies. Genesky v. East Lyme, 275 Conn. 246, 277, 881 A.2d 114 (2005) (Borden, J., concurring).

II

We next address the meaning of the term “certifying” as used in the act. The plaintiff contends that properly certified copies under the act must have the following characteristics: the certification must attest that it is a true and complete copy of the record on file; the certification must be issued by the person who maintains the record or his or her authorized representative; the certifier must sign the record; the raised seal of the certifier must appear on each page of the record; and the “certification shall be truthful.” We disagree that the act mandates such a comprehensive set of requirements.

The present case does not require us to arrive at a global meaning of the term “certifying.” Rather, this case requires us to determine only whether, under the facts of this case, the town met its statutory obligation of providing certified copies of the relevant documents to the plaintiff. We conclude that the town did.

The following facts are relevant to this question. As noted previously, the plaintiff filed eight letters of complaint with the commission between September and November, 2004. Of those eight letters, four included complaints about the adequacy of the way in which the records the plaintiff received from the town were certified. The commission, as part of its final decision in Williams v. Clyne, supra, FIC 2004-445, summarized the plaintiffs complaints regarding certification as follows: “The [plaintiff and the intervening plaintiff] also maintain that the certifications by the [town] of the records they received were improper. The [plaintiff and the intervening plaintiff] assert that the certifications were improper because the [town] did not affix a raised seal on the copies, because the certifications are sometimes attached to the copies, rather than written directly on the copies, because the certifications did not state how many pages were contained in the copy or number the pages of the copies, and because the certifications did not describe, or did not accurately describe, the records certified beyond stating that they were true copies of the originals.” The commission concluded that § 1-212 “only establishes a fee for certifying any copy of a public record, or certifying to any fact appearing in a public record, and does not set forth requirements for the form or content of such certifications.” After examining all of the documents supplied by the town to the plaintiff and the intervenor, the commission also made the factual determination that “the [town] certified that the copies provided to the [plaintiff and the intervening plaintiff] were true copies of the originals.”

We begin with the language of the statute. The act itself contains no specific definition of the term “certifying” as used therein. Unlike some other statutes; see, e.g., General Statutes §§ 7-23 (certification by town clerk) and 7-36 (certification by registrar of vital statistics); which we will discuss, the act does not prescribe any particular form or content of a certification of records. Nonetheless, the act does refer to “any certified record” in a way that strongly suggests its general meaning as used therein. General Statutes § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . receive a copy of such records in accordance with section 1-212. . . . Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by the law to so act, shall be competent evidence in any court of this state of the facts contained therein. . . .” (Emphasis added.) This use of the term “certified” suggests that as long as an official with legal authority to do so attests, or states in writing, that the records are true copies of the originals, he or she has issued a “certified record” properly under the act. Put another way, if such a record would be competent evidence in court under § 1-210, it stands to reason that it would also be considered a “certified” record under § 1-212. Indeed, § 1-210 specifically links such a record to those records to which one would be entitled under § 1-212. Furthermore, this general meaning is consistent with the most apt definition provided by the dictionary for the word “certify”: “To confirm formally as true, accurate, or genuine; testify to or vouch for in writing.” American Heritage Dictionary of the English Language (New College Ed. 1981). Finally, the purposes of the act, namely, to make public records available to the public, except when specifically exempted; see Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150, 155, 931 A.2d 989 (2007); and to do so without undue burden on the provider of the records, as we will discuss, are fully consistent with this simple, general meaning of the term “certifying.”

Applying this general meaning to the facts of this case, we conclude that the records provided to the plaintiff were properly certified within the meaning of the act. The commission found that “the [town] certified that the copies provided to the [plaintiff and the intervenor] were true copies of the originals.” Under the particular facts of this case, this was a sufficient certification for purposes of the act.

The plaintiff agrees with the requirements that the certification attest that the copy is a true copy and that it be signed by the certifier. She maintains, however, that the statute requires also that the attestation include that the copy is a “complete copy”; it be “issued by the person who maintains the record or his/her authorized representative”; the “raised seal” of the certifier be “affixed upon each page” of each document; and that “ [t]he certification shall be truthful. ” The plaintiff draws these additional requirements from §§ 7-23 and 7-36. See footnote 7. These two statutes, however, simply represent two instances in which the legislature has decided that a specific form of certification is necessary due to the nature and importance of the records. We see nothing in the language or purpose of either of those statutes or the act to suggest that the specific requirements of those statutes be imported into the provisions of the act.

Ill

The plaintiffs final claim is that the court improperly determined that pursuant to § 1-212 (e), “page” means one side of a piece of paper, and, therefore, the fee charged for a copy of a page refers to the fee that may be charged for the copy of each side of a piece of paper. In other words, the plaintiff claims that she was charged improperly for each side of the numerous pieces of paper, constituting the certified records that the town provided to her, on which information was recorded; she maintains, to the contrary, that she should have been charged for only each piece of paper supplied to her, despite the fact that information was recorded on both sides thereof. According to the plaintiff, “page” as used in § 1-212 (e) means a piece of paper. We reject this claim.

We acknowledge that depending on the context in which it is used, the word “page” can mean either one side of a piece of printed matter or the piece of paper on which the material is printed. One may speak of a page of a book, which ordinarily refers to each side of the piece of paper. One may also, however, speak of tearing out a page of a book, which ordinarily refers to the piece of paper that has printed matter on both sides. See, e.g., American Heritage Dictionary of the English Language, supra (“page ... 1. One side of a leaf of a book, letter, newspaper, manuscript, or the like. Often used of the entire leaf: tearing out a page. 2. The writing or printing on one side of a leaf.”). (Emphasis in original.) We conclude that the word “page” as used in the act refers to each side of the document copied. First, that is the more natural meaning in the context of copying a page, as the previously mentioned dictionary reference indicates. In this regard, the other meaning, urged by the plaintiff, appears to apply principally in the context of tearing out a page of a document, which is not the context in which the act uses the word. Second, in other statutory provisions, the legislature has used the term “page” to mean one side of a piece of paper. See General Statutes § 42-158n. Compare General Statutes § 4a-67a (a), in which the legislature has specifically referred to “two-sided copies” of pieces of paper for a different purpose.

The plaintiff argues that the public policy behind the act, namely, relatively inexpensive access to government records, compels this court to interpret “page” to mean a sheet of paper. Thus, the plaintiff argues that she and other requestors of public documents are required to pay only fifty cents for certified, two-sided copies of public records. We disagree.

The plaintiff directs the attention of this court to three of the commission’s prior advisory opinions. The plaintiff suggests that these opinions demonstrate the state’s strong public policy of providing inexpensive copies of public records to the public. The plaintiff cites the commission’s advisory opinions, numbers thirty, fifty-five and fifty-nine. The plaintiff refers to dicta in each of these opinions in which the commission indicates that the purpose of the act is to provide the general public easy and relatively inexpensive access to public records. Although we do not have occasion now to review the particular conclusions of any of the commission’s advisory opinions, we believe that it is beyond question that the overarching purpose of the act is, as the plaintiff asserts, to “facilitate public access to government records by making such records available at a reasonably low cost.” See Opinions, Conn. Freedom of Information Commission No. 55 (November 9,1983); see also Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 387, 746 A.2d 1264 (2000). We do not agree, however, that this resolves the question of statutory interpretation before us.

The goal of public access is not the only concern addressed in the statute. Instead, by shifting some of the financial burden onto the requestor through the fee schedule provisions, the legislature has also manifested a second concern, namely, not to overburden agencies with the expense of complying with the act. Furthermore, to the extent that some requestors may find the cost provided in the fee schedule to be prohibitively expensive, § 1-212 (d) provides that the usual fee may be waived in some instances.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is joined in this appeal by the intervening plaintiff, Dawn Massey. Massey also filed and briefed a cross appeal, in which she raised and argued the same claims as the plaintiff. Our decision on the plaintiffs appeal disposes of the intervening plaintiffs cross appeal as well.

       Additionally, the plaintiff raises a third claim, in which she asserts that the court did not adequately review the evidence in the record before determining the statutory meaning of “certifying” and “page.” At oral argument in 1his court, the plaintiff clarified that this daim was raised in the alternative to her first claim, i.e., that we needed to reach this claim only if we concluded that the court had employed a proper scope of review to the meaning of those terms. In light of our resolution of the plaintiffs first claim, therefore, we do not reach this third claim.

       General Statutes § 1-212 provides in relevant part: “(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the . . . [a]ct ... (2) [b]y all other public agencies . . . shall not exceed fifty cents per page. . . .
      “(e) Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. . . .”

       In this regard, the commission has conflated the judicial determination of the meaning of contract language with the judicial determination of the meaning of statutory language. It is true, of course, that the meaning of ambiguous contract language presents a question of fact for the trier. Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 140-41, 838 A.2d 1026 (2004). It is equally true, however, that the meaning of statutory language, whether ambiguous or not, presents a question of law for the court. See Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007).

       Although the court in Longley did not refer to Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 376, 627 A.2d 1296 (1993), in which our Supreme Court had suggested that a corat, “faced with two equally plausible interpretations of tire statutory language” governing an administrative agency’s power, should give deference to the agency’s interpretation, we regard this principle of deference as implicitly overruled by the more comprehensive and nuanced standard articulated in Longley.

       In this regard, we reject the plaintiffs contention that both the commission and the court were required to give deference to a certain prior advisory opinion issued by the commission, in which the commission opined: “[T]he certification required by [General Statutes] § 1-15 [now § 1-212] must state, at a minimum, that the certified copy is a true copy of a public record maintained or kept on file by the public agency, whether that record is an original or a copy. If the public record is itself a copy, the certification must clearly state that the certified copy is a true copy of a copy of a document maintained or kept on file by the public agency. The certification must make clear that the copy is not a copy of an original document. ... On the other hand, if a document requested to be certified is a copy of an original, the certification must clearly state that fact.” Opinions, Conn. Freedom of Information Commission No. 76 (July 12, 1989).
      There is no evidence in this record that this opinion has ever been publicly articulated or that it has been consistently applied over a long period of time.

         General Statutes § 7-23 provides in relevant part: “No copy of [a] record certified by the town clerk or assistant town clerk of any town shall be deemed valid in law unless the seal of such town is affixed thereto; and the town clerk of each town . . . shall affix the seal of such town to all certified copies of the record . . .
      General Statutes § 7-36 provides in relevant part: “(5) ‘Certified copy’ means a copy of a birth, death, fetal death or marriage certificate that (A) includes all information on the certificate except such information that is nondisclosable by law, (B) is issued or transmitted by any registrar of vital statistics, (C) includes an attested signature and the raised seal of an authorized person, and (D) if submitted to the department, includes all information required by the commissioner . . .

       See footnote 3.

       General Statutes § 42-158n provides in relevant part: “At or before the commencement of any work under a construction contract, the owner shall post and maintain in a conspicuous place at the construction site ... (2) the volume and page number of the land records of the town in which such property is located . . . .”

       General Statutes § 4a-67a (a) provides in relevant part: “The Commissioner of Administrative Services shall prepare on or before October 1,1989, and thereafter periodically update, a plan to increase state procurement of goods that contain recycled materials and products that are recyclable or remanufactured .... In preparing such plan, the commissioner shall assess the feasibility and efficacy of . . . requiring the state to utilize two-sided copies, whenever possible, to reduce paper waste. ” (Emphasis added.)

       In advisory opinion thirty, the commission was asked to reconcile the fee provisions of General Statutes § 1-15, now §1-212, with General Statutes § 7-34 (a), with regard to certified copies of land records. The commission determined that § 7-34 (a), because it was more specific than the general provisions of §1-15, and because §1-15 explicitly stated that other established law would apply when it contradicted the general provisions of § 1-15, the fee provisions of § 7-34 (a) governed. Opinions, Conn. Freedom of Information Commission No. 30 (February 22, 1978).
      In advisory opinion fifty-five, the commission determined that with regard to large property maps, when the agency does not have the capability of providing adequate copies of the large maps, it may offer to send the maps out to have them copied and charge the requestor no more than the cost to the agency, pursuantto General Statutes § 51-15. Opinions, Conn. Freedom of Information Commission No. 55 (November 9, 1983).
      Finally, in advisory opinion fifty-nine, the commission determined that agencies may not charge fees in excess of the fee provisions of §1-15 to cover the cost of its personnel preparing and copying the requested records. Opinions, Conn. Freedom of Information Commission No. 59 (August 22, 1984).

       General Statutes § 1-212 (d) provides: “The public agency shall waive any fee provided for in this section when: (1) The person requesting the records is an indigent individual; (2) The records located are determined by the public agency to be exempt from disclosure under subsection (b) of section 1-210; (3) In its judgment, compliance with the applicant’s request benefits the general welfare; or (4) The person requesting the record is an elected official of a political subdivision of the state and the official (A) obtains the record from an agency of the political subdivision in which the official serves, and (B) certifies that the record pertains to the official’s duties.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SCOTT LEWIS
    (AC 29167)
    Bishop, McLachlan and Haiper, Js.
    Argued March 25
    officially released June 17, 2008

      Scott Lewis, pro se, the appellant (defendant).

      Christopher T. Godialis, senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Scott Lewis, appeals from the judgment of the trial court dismissing his motion to correct an illegal disposition. The defendant claims that, in determining that it lacked subject matter jurisdiction, the court improperly construed Practice Book § 43-22. We affirm the judgment of the trial court.

The defendant was convicted, in 1995, of two counts of murder in violation of General Statutes §§ 53a-8 and 53a-54a, and two counts of felony murder in violation of General Statutes § 53a-54c. Our Supreme Court affirmed the defendant’s conviction following his direct appeal. See State v. Lewis, 245 Conn. 779, 717 A.2d 1140 (1998).

The defendant thereafter filed a motion to correct an illegal disposition pursuant to Practice Book § 43-22, claiming that our Supreme Court, in affirming his conviction, had “relied upon . . . false and wilfully excluded facts ... in rendering its decision.” The state filed a motion to dismiss for lack of subject matter jurisdiction, claiming that a motion to correct pursuant to § 43-22 “is an inappropriate vehicle for challenging a sentence based on some alleged defect in the conviction.” The court granted the motion to dismiss, reasoning that “[t]he defendant’s motion does not . . . address the sentence or disposition of his case. His only attack is on the validity of the underlying conviction.” This appeal followed.

The plaintiff claims that the court, in granting the state’s motion to dismiss, overlooked the import of his motion to correct. He argues that the court improperly assumed that he had filed a motion to correct an illegal sentence pursuant to § 43-22, whereas he had actually filed a motion to correct an illegal disposition. The defendant indicates that § 43-22 clearly provides in relevant part that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition . . . .” (Emphasis added.) He contends that the claim asserted by his motion to correct, which was that there existed a fault in the appeals process, is encompassed within the phrase “other illegal disposition.” We do not agree.

Before we address the merits of the defendant’s claim, we must first discuss the principles of subject matter jurisdiction that guide our resolution of his claim. “In the absence of statutory or constitutional provisions, the limits of [the trial court’s] jurisdiction are delineated by the common law.” State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 85 (1994). Although “the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence”; id., 432; § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition. See State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007). Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it. Furthermore, “[o]ur standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of lack of subject matter jurisdiction concerns a question of law and is plenary.” Mercer v. Rodriquez, 83 Conn. App. 251, 255, 849 A.2d 886 (2004).

It is well settled that “[t]he propose of ... § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition . . . .” State v. Mollo, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); see also State v. Lawrence, supra, 281 Conn. 158. Therefore, “the relief allowed by ... § 43-22 . . . requirefs], as a precondition, a valid conviction.” State v. Mollo, supra, 491. It is clear to us that the defendant’s motion to correct, regardless of whether framed as a motion to correct an illegal sentence or a motion to correct an illegal disposition, solely challenges his conviction rather than the sentence or disposition of that conviction. His claim that our Supreme Court relied on a faulty factual basis in rejecting an evidentiary challenge and, thus, affirming his conviction, amounts to a direct attack on the validity of his conviction. Accordingly, the trial court was correct to conclude that it lacked subject matter jurisdiction to review the defendant’s claim pursuant to § 43-22.

The judgment is affirmed.

       The defendant subsequently was sentenced to a term of incarceration of 120 years.

       Because the defendant had been convicted of both murder and felony murder with respect to each of two victims, the Supreme Court directed the merger of the felony murder convictions with the murder convictions.

       Specifically, the defendant claimed that, due to an incorrect transcript having been filed with our Supreme Court, that court, at the time it considered the direct appeal, was under the improper belief that a third party, whose hearsay statements the defendant had sought to introduce at trial, had not been proven to have been unavailable at trial and that the state knowingly declined to draw the court’s attention to this error.

       We note that our decision today does not preclude the defendant from pursuing his claim via other remedies available at law, including a petition for a writ of habeas coipus. See, e.g., Flaherty v. Warden, 155 Conn. 36, 39, 229 A.2d 362 (1967) (“[w]here a person is confined pursuant to a judgment, the validity of his detention under that judgment is the proper issue to be determined [in a writ of habeas corpus]”).


author: HARPER, J.

text:
    RICHARD RODRIGUEZ v. COMMISSIONER OF CORRECTION
    (AC 27377)
    Harper, Beach and Hennessy, Js.
    Argued March 28
    officially released June 17, 2008

      Damon A. R. Kirschbaum, special public defender, for the appellant (petitioner).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Richard Rodriguez, appeals following the denial of certification to appeal from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his previous habeas counsel, Vicki H. Hutchinson, had provided ineffective assistance. We dismiss the petitioner’s appeal.

In December, 1991, an elderly couple was robbed at gunpoint in their Hamden home. The petitioner subsequently was arrested in connection with the robbery. The petitioner was later convicted, after a trial by jury, of various crimes and received a total effective sentence of forty years imprisonment.

Our Supreme Court, in considering the petitioner’s direct appeal, recited the following relevant facts: “At approximately 6:15 p.m., the Hamden police broadcast a report of an armed robbery . . . involving two large Caucasian males wearing ski masks and baggy pants with elastic waistbands. The report also stated that one of the perpetrators had a mustache.

“Shortly after the broadcast, Sergeant John Kennelly arrived at the victims’ home, where he observed a red automobile parked on the side of the road, twenty to twenty-five feet from the victims’ driveway. Upon approaching the vehicle, he noted that there was a woman in the driver’s seat accompanied by two men, one standing outside the vehicle and the other seated in the rear of the car. Kennelly noted that the man in the back seat was a Hispanic male with dark hair and a mustache. He recognized the man standing alongside the vehicle as Daniel Garrison, a personal acquaintance, and he asked Garrison what he was doing at that location. Garrison responded that they had stopped there because he and his girlfriend, the driver, had been having an argument and she had stopped the car. Kennelly advised Garrison to move along as there recently had been trouble in the area. Kennelly then proceeded to drive up the driveway to the victims’ home, where he interviewed the victims briefly. At that point, Kennelly learned from descriptions given by the victims that one of the perpetrators resembled Garrison and that the other had a mustache and had worn a brown leather coat.

“Meanwhile, having learned of the radio report, Ham-den police officer Gary Komoroski, alert for possible suspects in the . . . robbery, was patrolling Shepard Avenue. At approximately 6:36 p.m., Komoroski observed several vehicles in front of him swerving as if to avoid an obstruction in the road. As he approached the point of the apparent obstruction, he observed a mustached Hispanic male wearing a brown leather jacket and jeans, standing in the roadway and waving his arms frantically in an attempt to flag down passing vehicles. The Hispanic male was later identified as the [petitioner]. At that point, the [petitioner] was approximately 2.4 miles from the victims’ home on Shepard Avenue and was walking southbound, away from the victims’ residence.

“After notifying the police dispatcher that he was leaving his vehicle to question the [petitioner], Komoroski approached the [petitioner] and asked several questions to which the [petitioner] gave responses that Komoroski considered suspicious. For example, when asked what he was doing, the [petitioner] said, ‘just walking.’ When asked where he was going, the [petitioner] replied that he was walking from New Haven to Hartford. Komoroski then asked the [petitioner] if he knew what town he was in and the [petitioner] replied that he did not know. The [petitioner] then told Komoroski that he had been in a car with a man and a woman and that they had started to fight and had let him out of the car. The [petitioner] also stated that he did not know the names of the people with whom he had been in the vehicle.

“Acting on the [petitioner’s] implausible and evasive responses, as well as the fact that the [petitioner] had a mustache and was found walking away from the crime scene within a time frame that could have placed him at his present location after having participated in the crimes, Komoroski radioed to Kennelly to tell him that he might have one of the peipetrators of the robbery with him. Kennelly responded that he would be there shortly. Komoroski then returned to the [petitioner] and asked him his name. The [petitioner] responded that his name was Anthony Rodriguez. Komoroski then conducted a patdown search for weapons but found none.

“Komoroski subsequently began to issue the [petitioner] a summons for the infraction of reckless use of a highway by a pedestrian in violation of General Statutes § 53-182. While filling out the summons, he asked the [petitioner] for identification in order to confirm the [petitioner’s] identity and to complete the summons. Without checking his pockets, the [petitioner] responded that he did not have any identification. Komoroski then asked the [petitioner] either to check his pockets for identification or to empty his pockets to see if he had any identification.

“The [petitioner] immediately and voluntarily emptied his pockets and extracted, among other things, a rubber glove and a tin foil packet containing baking soda. When asked by Komoroski about the purpose of these items, the [petitioner] responded that he used them to freebase cocaine. Komoroski then arrested the [petitioner] for possession of dmg paraphernalia in violation of General Statutes § 2 la-267 and placed the [petitioner] in his police vehicle. Shortly thereafter, and approximately ten minutes after Komoroski had first seen the [petitioner], Kennelly arrived at the scene. After he arrived, Kennelly approached Komoroski’s vehicle and immediately recognized the [petitioner], who was seated in the rear of the police vehicle, as one of the passengers in the red vehicle that had been parked near the victims’ driveway.

“Thereafter, the [petitioner], after he had orally waived his Miranda rights, voluntarily spoke with Kennelly concerning his activities earlier that evening. The [petitioner] confirmed that he had been in the red car near the victims’ driveway. He stated that he had been there because he and the two others in the car had been using cocaine and had pulled over to the side of the road to do so. The [petitioner] stated that he did not know the name of the other male in the car, but that the female’s name was either Carol or Chris, despite having previously told Komoroski that he did not know her name. A few minutes after his initial statement to Kennelly, the [petitioner] further stated that at some point the female and the other male had left the vehicle and had walked up the victims’ driveway. He said that they later returned down the driveway carrying a Macy’s bag. After making this second statement, the [petitioner] was transported to the victims’ home for a show-up in order to allow the victims to attempt to identify him.

“Upon arriving at the victims’ home, the [petitioner] stood on the front walkway illuminated by two lights. The victims observed the [petitioner] from a window in their darkened house. This arrangement was made so that the [petitioner] would be unable to see the victims. There was no evidence introduced at [the criminal] trial relevant to whether the victims, at the show-up, had been able to identify the [petitioner] positively. The [petitioner] was then escorted back to the police vehicle where, although he had not been informed of the number, age or gender of the victims, he twice stated that the ‘old man’ and the ‘old woman’ could not identify him.

“The following day, while in the Meriden courthouse detention area awaiting his arraignment, the [petitioner] was seen wearing a woman’s diamond ring on his finger. When a sheriff asked for the ring in order to inventory it, the [petitioner] removed the ring from his finger, placed it in his mouth and appeared to swallow it. A warrant was thereafter issued for an X ray of the [petitioner] in order to determine the location of the ring. After the warrant had been issued but before the [petitioner] was taken to the hospital, he produced the ring from his pocket and turned it over to the police. The ring was later identified as belonging to [one of the victims].” State v. Rodriguez, 239 Conn. 235, 238-43, 684 A.2d 1165 (1996).

At the petitioner’s criminal trial, the petitioner’s trial counsel, Jerome Rosenblum, filed a motion to suppress the introduction of, inter alia, the ring as fruit of the allegedly illegal search of the petitioner’s pockets. The court denied the motion. This court reversed the petitioner’s conviction on direct appeal, holding that the motion to suppress had been denied improperly, and our Supreme Court then reversed the decision of this court, holding that the motion to suppress had, in fact, been denied properly. See id., 251. The petitioner’s conviction was reinstated on remand to this court. See State v. Rodriguez, 44 Conn. App. 818, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997).

The petitioner then filed a petition for a writ of habeas corpus, claiming that Rosenblum had rendered ineffective assistance of counsel in failing to cross-examine Komoroski adequately at the suppression hearing. The petitioner’s habeas counsel, Hutchinson, did not call Komoroski to testily at the habeas trial. The habeas court denied the petition, and the petitioner did not appeal from that judgment. Instead, the petitioner filed a second petition for a writ of habeas corpus. In his second petition, the petitioner claimed that Hutchinson had rendered ineffective assistance of counsel in failing to call Komoroski to testify at the first habeas trial. The second habeas court denied this second petition and then denied the petitioner certification to appeal. This appeal followed.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn. App. 738, 740-41, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).

Furthermore, “[o]ur Supreme Court set the standard of review to be afforded an appeal from the dismissal of a habeas corpus petition alleging ineffective assistance of habeas counsel in Lozada v. Washington, 223 Conn. 834, 613 A.2d 818 (1992). To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted [petitioner’s] claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial.” (Citations omitted; internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

Our resolution of the petitioner’s claim of ineffective assistance of counsel requires a thorough explanation of the parameters of our Supreme Court’s analysis in rejecting the petitioner’s claim that the trial court had improperly denied his motion to suppress.

On the basis of the aforementioned facts, our Supreme Court concluded that “a finding of probable cause to believe that the [petitioner] had committed the . . . robbery arose from grounds entirely independent of the allegedly illegal search of the [petitioner’s] pockets,” and the petitioner’s motion to suppress had thus been denied properly. State v. Rodriguez, supra, 239 Conn. 244.

The court explained that “there were two independent and simultaneous investigations occurring pertaining to the activities of the [petitioner] on the night of the . . . robbery,” one of which involved the petitioner’s suspicious behavior on the highway, the other the robbery itself. Id., 244—45. The court continued that “[i]t is undisputed that when Komoroski saw the [petitioner] obstructing the highway and engaging in ‘aggressive hitchhiking,’ he had a reasonable and articulable suspicion to conduct a brief, investigatory detention of the [petitioner] under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in order to determine the reason for the [petitioner’s] aberrant conduct and to issue him a summons for reckless use of a highway in violation of § 53-182.

“Once Komoroski had lawfully detained the [petitioner] in connection with his behavior on Shepard Avenue, several other factors arose that provided Komoroski with a reasonable and articulable suspicion regarding the [petitioner’s] involvement in the robbery .... That suspicion led Komoroski to contact Kennelly. Those factors included: (1) the fact that the [petitioner] had a mustache, as did one of the perpetrators of the recent robbery; (2) the fact that the [petitioner] was traveling away from the scene of the crime and on the same road on which the crime had occurred; (3) the fact that the short distance from the crime scene easily could have been traveled on foot in the time intervening since the crime; (4) the fact that the [petitioner] claimed to be ‘just walking,’ even though Komoroski had seen him aggressively attempting to flag down passing cars; (5) the fact that the [petitioner] claimed to be walking from New Haven to Hartford even though traveling southbound on Shepard Avenue was an unlikely route, and even though a ‘walk’ from New Haven to Hartford would be approximately forty-five miles; (6) the fact that the [petitioner] claimed not to know where he was; and (7) the fact that the [petitioner] claimed to have been traveling -with a male and a female whose names he did not know and who had asked him to leave their car.” State v. Rodriguez, supra, 239 Conn. 245-46. Therefore, the court reasoned, Komoroski had been justified in detaining the petitioner for a short while until Kennelly arrived at the scene, and, on the basis of Kennelly’s previous interaction with the petitioner in the area, probable cause existed to arrest the petitioner for the robbery. Id., 247-49. On this basis, the Supreme Court concluded that “the robbery investigation proceeded from beginning to end without being influenced by the alleged search of the [petitioner’s] pockets” and that the trial court properly had denied the petitioner’s motion to suppress. Id., 245.

The crux of the petitioner’s claim of ineffective assistance of counsel is that our Supreme Court based this legal conclusion on a faulty factual basis. The petitioner contends that although our Supreme Court assumed that Komoroski radioed Kennelly prior to Komoroski’s search of the petitioner’s pockets, Komoroski clearly testified at the second habeas trial that he contacted Kennelly only after searching the petitioner. The petitioner argues that this factual distinction demonstrates that suspicion of the petitioner as a suspect in the robbery arose only after the search had occurred and, therefore, that the discovery of the ring and subsequent arrest of the petitioner would not have occurred but for the search of the petitioner’s pockets. The petitioner concludes that had the trial court been presented with this correct factual basis, which was elicited at this second habeas trial, it would have been compelled to grant the petitioner’s motion to suppress the ring as fruit of an illegal search. The petitioner argues that the failure of Rosenblum and Hutchinson to present adequately Komoroski’s testimony as to the timing of this radio call, in turn, amounted to ineffective assistance of counsel.

The second habeas court concluded, upon hearing this argument and hearing Komoroski’s testimony, that even had counsel’s performance been deficient, the petitioner had not been prejudiced thereby. We agree. The second habeas court aptly observed that the precise timing of Komoroski’s radio call to Kennelly was irrelevant to the ultimate conviction of the petitioner. The petitioner’s contention that the pocket search gave rise to Komoroski’s suspicion of the petitioner, and, a fortiori, the petitioner’s arrest, simply is not borne out by the facts. Our Supreme Court enumerated seven factors supporting a reasonable and articulable suspicion for Komoroski to have suspected the petitioner’s involvement in the robbery, none of which involve or relate to the search of the petitioner’s pockets. We agree with the reasoning of the second habeas court and our Supreme Court that the pocket search simply was irrelevant to Komoroski’s investigation of the robbery. The petitioner has therefore failed to demonstrate that he was prejudiced by Hutchinson’s performance, and his claim of ineffective assistance of counsel must fail. See Ricks v. Commissioner of Correction, 98 Conn. App. 497, 517-18, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007).

In light of the foregoing conclusions, the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Thus, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Specifically, the petitioner was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), one count of conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-136, one count of burglary in the third degree in violation of General Statutes § 53a-103, one count of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103, two counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) and 53a-8, two counts of larceny in the second degree in violation of General Statutes §§ 53a-123 (a) and 53a-8, and one count of larceny in the third degree in violation of General Statutes § 53a-124 (a) and 53a-8.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The legality of this search is irrelevant to our disposition of the petitioner’s appeal.

       Although the petitioner initially filed this petition pro se, Hutchinson commenced representing him prior to the habeas trial.

       Indeed, the petitioner conceded at oral argument that an objective reasonable and articulable suspicion existed prior to the search of his pockets. He contended, however, that this objective suspicion was rendered immaterial by Komoroski’s admission, at the second habeas trial, that he did not form a subjective suspicion until after the pocket search. The plaintiffs contention is nonetheless belied by Komoroski’s earlier testimony at the second habeas trial that he had first formed a subjective suspicion after hearing the petitioner’s nonsensical answers to his questions, which occurred well before the search of the petitioner’s pockets.


author: BISHOP, J.

text:
    HOUSING AUTHORITY OF THE CITY OF NEW HAVEN v. THELMA GOODWIN ET AL.
    (AC 27938)
    Bishop, DiPentima and Robinson Js.

      Argued April 14
    officially released June 17, 2008

      Amy D. Marx, with whom was Shelley A. White, for the appellant (named defendant).

      G. Adam Schweickert III, with whom, on the brief, was Robert W. Chesson, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The dispositive issue in this housing appeal is whether the trial court abused its discretion in denying the defendant Thelma Goodwin an evidentiary hearing on her motion to open a stipulated judgment that she had entered into one month earlier with the plaintiff, the housing authority of the city of New Haven. Because we resolve that issue in the affirmative, we reverse the judgment of the trial court.

The following factual and procedural history is relevant to the defendant’s appeal. The defendant resides in a federal low income housing unit in New Haven, owned and operated by the plaintiff. On February 28, 2006, the plaintiff instituted a summary process action to recover possession of the premises on the basis of the defendant’s failure to maintain the apartment in a clean and sanitary condition. The defendant filed an answer denying the allegations of the complaint and raising the special defense that all rent had been paid to the landlord. On April 25, 2006, the defendant appeared pro se for trial and met with the attorney for the plaintiff. This meeting resulted in the parties’ entering into a stipulated agreement under which judgment would enter in favor of the plaintiff with a final stay of execution until May 31, 2006. The defendant agreed to vacate the premises by May 31, 2006. The court questioned the defendant about her understanding of this agreement and then rendered judgment in accordance with the stipulation.

On May 25, 2006, the defendant, with the assistance of counsel, filed a motion to open the judgment pursuant to Practice Book § 17-4 and General Statutes § 52-212a. In her motion, the defendant claimed that she “suffers from serious cognitive limitations that affected her ability to understand the significance and consequences of the stipulated agreement without [the] advice of counsel or assistance of amediator.” Additionally, the defendant asserted her belief that she had a defense to the summaiy process action based on her disability and the plaintiffs duty to provide her a reasonable accommodation. On May 26,2006, the court denied the motion to open without the benefit of oral argument or an evidentiary hearing.

On May 31, 2006, the defendant filed a motion for reargument because the court had denied the motion to open without an evidentiary hearing. In support of her motion, the defendant presented an affidavit in which she asserted that she did not understand that the stipulation required that she vacate her apartment by May 31. The defendant claimed that she suffers from serious cognitive limitations, specifically that she has an IQ of sixty-five and has been classified as “mildly mentally retarded,” which prevented her from understanding her procedural rights and the meaning and consequences of the stipulation. The defendant claimed that when she signed the stipulation, she did so under the mistaken belief that she was being offered the opportunity to stay in the apartment, not that she, along with her seven minor children, would be required to vacate it in approximately four weeks.

The defendant’s motion for reargument was scheduled for a hearing on June 6, 2006. At that hearing, the defendant, through counsel, requested that the court grant her motion for reargument and proceed with an evidentiary hearing on the underlying motion to open. The court continued the matter to June 20, 2006, to give the plaintiff an opportunity to respond to the motion for reargument.

On June 20, 2006, the court heard oral argument on the defendant’s motion for reargument. The defendant argued that she was entitled to an evidentiary hearing on her motion to open because she had set forth a “prima facie factual dispute” regarding her mistake in signing the stipulation. The plaintiff objected, arguing that the defendant cannot avoid a stipulation on the ground that she made a mistake unless that mistake was mutual, that the defendant did not ask for oral argument or an evidentiary hearing in her motion to open and that in signing the stipulated judgment, the defendant waived her right to open or to appeal from the stipulated judgment. On August 7, 2006, the court denied the motion for reargument without a written opinion. This appeal followed.

On November 24, 2006, the court issued an articulation setting forth several factual findings. The court found that the attorney for the plaintiff, who appeared before it on a regular basis, previously had been candid with the court when a tenant lacked the ability or competence to enter into a binding agreement and that he had not previously sought or allowed a judgment to enter against such a party. The court further found that the defendant’s daughter and codefendant was “privy to the entire negotiation of the stipulated agreement and was well aware of [the defendant’s] participation in those negotiations. She was also at [the defendant’s] side when the court canvassed the agreement. At no time did she raise any concerns about the alleged limitations on [the defendant’s] part, which would later become the basis of [the defendant’s] attempts to open the judgment. If [the defendant] had any problems in coming to this agreement or in understanding the canvass by the court, it most certainly would have been obvious to her daughter, who most probably knows her better than anyone. It would also have been incumbent upon [the defendant’s daughter] as codefendant to bring such concerns to the court’s attention.” Finally, the court found that the “defendant was neither defrauded nor mistaken as to the terms of the stipulated agreement she reached with the plaintiffs attorney and in the presence of her daughter . . . .” The court concluded that it did not, therefore, find that “proper grounds existed to permit or require an opening of the stipulated judgment of April 25, 2006, as evidenced by the [transcript of the entry of stipulated judgment], and, for that reason, both the motion to open and the motion to reargue were denied by this court.”

In denying the defendant’s motion for reargument, the court addressed the merits of her motion to open. Accordingly, we begin by setting forth the standard of review for a challenge to the denial of a motion to open. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Cox v. Burdick, 98 Conn. App. 167, 176-77, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006).

“A stipulated judgment constitutes a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... A stipulated judgment allows the parties to avoid litigation by entering into an agreement that will settle their differences once the court renders judgment on the basis of the agreement. ... A stipulated judgment, although obtained through mutual consent of the parties, is binding to the same degree as a judgment obtained through litigation. ... It necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.” (Citations omitted; internal quotation marks omitted.) Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 310, 780 A.2d 916 (2001).

“A motion to open a stipulated judgment, when grounded on mistake or duress, necessarily requires the court to make a factual determination before it can exercise its discretion to grant or deny the motion .... In making its factual determination whether a stipulated judgment should be opened, the court must inquire into whether the decree itself was obtained by fraud, duress, accident or mistake.” (Internal quotation marks omitted.) Cox v. Burdick, supra, 98 Conn. App. 177. When such a factual determination must be made, “due process requires a hearing to provide the parties with an opportunity to present evidence.” Housing Authority v. Lamothe, 225 Conn. 757, 769, 627 A.2d 367 (1993).

Both parties contend that Lamothe is pivotal in the resolution of this appeal. We agree. In Lamothe, the plaintiff housing authority sought, by way of a summary process action, to recover possession of certain premises leased to the defendants. The trial court rendered judgment awarding possession to the plaintiff in accordance with a stipulation of the parties. Id., 759-60. Thereafter, the defendant moved to open the judgment, claiming that the stipulation was the product of duress and mistake. Specifically, the defendant claimed that she entered into the stipulation without understanding its terms or the consequences of agreeing to a final stay of execution. Id., 760. Without allowing the defendant to introduce any evidence in support of the motion, the trial court denied the motion to open. Id., 762. Our Supreme Court held that because the defendant was prepared to present evidence in support of her motion to open that “would have provided the facts necessary for a proper evaluation of the legal issues raised by the motion [to open] and the background against which the legal theories could have been tested,” the court should have afforded her an opportunity to present that evidence. Id., 769.

Here, as in Lamothe, the defendant sought an evidentiary hearing to demonstrate that she did not understand the stipulation she had signed and that her mistake in entering into the stipulation was due to her limited cognitive abilities. Although she did not request an evidentiary hearing in her motion to open, she did raise the issue of her ability to understand in that motion, and she specifically requested an evidentiary hearing in her motion to reargue to provide the court with additional information regarding her cognitive difficulties. Her motions, along with the attachments thereto and the argument of counsel, were sufficient to give notice to the court that a factual determination was necessary to decide the motion to open fairly and that the presentation of evidence was a necessary predicate to those factual determinations. Because the defendant should have been afforded the opportunity to present evidence in support of her claim of mistake, we conclude that the court abused its discretion in denying her motions to open and for reargument.

The judgment is reversed and the case is remanded with direction to afford the defendant a full evidentiary hearing on her motion to open the stipulated judgment.

In this opinion the other judges concurred.

       Marcus Goodwin and Monica Goodwin also were parties in the summary process action. Because they are not parties to this appeal, however, we refer to Thelma Goodwin as the defendant throughout this opinion.

       Interestingly, the plaintiff denied the defendant’s special defense but did not allege nonpayment of rent as a basis for its summary process complaint.

       The court’s canvass consisted of the following questions, to which the defendant responded affirmatively: “Are you [a party] to this agreement?”; “Have you read [the agreement]?”; “Have . . . you signed [the agreement]?”; “Do you understand what your rights and obligations are under this agreement?”; and, “Do you feel it’s a fair and equitable proposal?”

       Practice Book § 17-4 (a) provides in relevant part that “any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. ...”

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

       The record does not reflect that the defendant asked for oral argument or an evidentiary hearing in conjunction with this filing.

       In this regard, the defendant presented an affidavit from a licensed psychologist, as well as a copy of a psychological evaluation prepared in conjunction with proceedings in the Juvenile Court. In addition to classifying the defendant as “mildly mentally retarded,” the psychologist indicated that "[d]ue to her intellectual limitations, [the defendant] is likely to misunderstand or misapprehend detailed information, such as would be presented in a court proceeding. Further, part of her accommodation to limited understanding is to agree without question or to fail to seek clarification.”
      The defendant also presented the affidavit of her alderman, who indicated that when he told the defendant that she had agreed to vacate her apartment, she burst into tears, indicated that she had not understood that and asked what she was supposed to do with her seven children because she had nowhere else to go.

       On June 9, 2006, the court entered an injunction against the issuance of any execution pending the outcome of the defendant’s motion for reargument. The defendant is still in possession of the subject premises.

       The plaintiff contends that because the defendant expressly waived her right to open or to appeal from the stipulated judgment, this court does not have jurisdiction to consider this appeal. Because, however, the validity of the stipulated judgment is the underlying issue in this matter, the plaintiffs argument must fail.

       The standard of review for a court’s denial of a motion to reargue also is abuse of discretion. Terry v. Terry, 102 Conn. App. 215, 230, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007).

       Although the court did not afford the defendant an evidentiary hearing on the claims she raised in her motions to open and to reargue, it did make factual findings.

       The plaintiff contends that to open a stipulated judgment, even within four months from the date of its rendering, a movant must prove that the mistake was mutual. All of the cases cited by the plaintiff, however, in which mutual mistake is required concern situations in which the motion to open was filed beyond four months of the date of judgment. In Lamothe, on which we rely, the motion to open was filed within four months of the date of judgment and did not concern a mutual mistake. Housing Authority v. Lamothe, supra, 225 Conn. 760.


author: FLYNN, C. J.

text:
    PABLO ANDRADES v. COMMISSIONER OF CORRECTION
    (AC 28133)
    Flynn, C. J., and Gruendel and Lavine, Js.
    Argued January 10
    officially released June 17, 2008

      Elio C. C. Morgan, special public defender, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Pablo Andrades, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claims that his trial counsel had rendered ineffective assistance by failing (1) to file an application for sentence review properly, (2) to obtain a Spanish language interpreter at trial and (3) to ensure that the petitioner was competent throughout the trial. We agree only with the petitioner’s first claim and, therefore, reverse in part and affirm in part the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In 2000, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The court thereafter sentenced the petitioner to a total effective term of fifty years imprisonment. The petitioner’s conviction was upheld on appeal. State v. Andrades, 68 Conn. App. 905, 793 A.2d 299, cert. denied, 260 Conn. 909, 795 A.2d 545 (2002).

On September 16, 2005, the petitioner filed a second amended petition for a writ of habeas corpus, in which he raised multiple claims of ineffective assistance of trial counsel, Kevin Barrs. In his prayer for relief, the petitioner requested, inter alia, that his sentence review rights be reinstated. A habeas trial was held on April 18 and May 19, 2006. On August 31, 2006, the court dismissed the petition, finding that the petitioner had failed to satisfy his burden of proving ineffective assistance of counsel. The court subsequently granted the petition for certification to appeal to this court, and this appeal followed. Additional facts will be set forth as necessary.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn. App. 499, 503, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

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

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ....

“Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation omitted; internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn. App. 129, 135, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). With these principles in mind, we address in turn each of the petitioner’s claims.

I

We first address the petitioner’s claim that the court improperly concluded that Barrs did not provide ineffective assistance by failing to file properly an application for sentence review pursuant to General Statutes § 51-195. We agree with the petitioner.

At the habeas hearing, the petitioner, in response to questions concerning his sentence review application, testified that Barrs had informed him that he would take care of the paperwork necessary to file the sentence review application. In a similar vein, Barrs stated that it was his practice to file an application for sentence review on behalf of his clients when he filed a motion for a waiver of fees and costs to appeal. Although Barrs testified as to his belief that he had applied for sentence review in the petitioner’s case, he acknowledged that he did not have a copy of that application in his file, nor did he have any documentation reflecting that the application had been filed with the court. The petitioner stated that the sentence review division had not reviewed his sentence. Likewise, Barrs testified that, although the sentence review division usually would contact him about a pending sentence review, he was never informed of a sentence review concerning the petitioner by the sentence review division. Moreover, Barrs stated that he never inquired about the status of the petitioner’s sentence review.

Following the hearing, the court issued a memorandum of decision in which it determined that it was the petitioner’s “responsibility to follow through with a request for sentence review and not that of his attorney.” The court, therefore, concluded that the petitioner had not satisfied his burden of proving that Barrs was ineffective with respect to the sentence review application. On March 19, 2008, this court, sua sponte, ordered an articulation. In response, the habeas court indicated that it had inferred that Barrs had undertaken to file the application for sentence review on behalf of the petitioner.

On the basis of our plenary review, we conclude, contrary to the habeas court, that the petitioner satisfied both prongs of the Strickland test as to his claim of ineffective assistance pertaining to the filing of the application for sentence review. First, it is undisputed that the petitioner never had his sentence reviewed by the sentence review division. With respect to the court’s determination that the petitioner failed to demonstrate that Barrs’ representation fell below an objective standard of reasonableness because it was the petitioner’s responsibility to apply for sentence review, we conclude that such a conclusion is not legally or logically correct, nor does it find support in the facts that appear in the record. See Sadler v. Commissioner of Correction, 100 Conn. App. 659, 661, 918 A.2d 1033, cert. denied, 285 Conn. 901, 938 A.2d 593 (2007).

In so concluding, we find instructive our Supreme Court’s discussion in James L. v. Commissioner of Correction, 245 Conn. 132, 712 A.2d 947 (1998), concerning claims of ineffective assistance of counsel with respect to sentence review. “Under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review. ‘[T]he sentencing process is a critical stage of a criminal trial.’ Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966). Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review. Id., 676. The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel. See Lozada v. Warden, [223 Conn. 834, 838-39, 613 A.2d 818 (1992)]. It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue.” (Emphasis added.) James L. v. Commissioner of Correction, supra, 144.

In the present case, as the court indicated in its articulation, Barrs had undertaken to ensure that the application for sentence review was filed properly on behalf of the petitioner, and this finding is supported by the evidence, namely, the testimony given by the petitioner and by Barrs. In light of this finding and James L., the court therefore could not have concluded properly that it was the petitioner’s responsibility to apply for sentence review. See id. Because Barrs had undertaken to apply for sentence review, the petitioner had a right to the effective assistance of counsel with respect to the sentence review application. See id. Nevertheless, the petitioner never had his sentence reviewed, and Barrs, having undertaken the responsibility of filing the application for sentence review, had an obligation to represent the petitioner effectively and to ensure that the application was filed properly. As a result, the petitioner was prejudiced because he was denied the right to have his sentence reviewed. Accordingly, we conclude that the petitioner satisfied his burden of proving a claim of ineffective assistance under Strickland, and he is entitled to have his right to sentence review restored. See id., 148.

II

The petitioner next claims that the court improperly concluded that he failed to prove his claim of ineffective assistance with respect to the need for a Spanish language interpreter during the criminal trial. The petitioner argues that he needed the assistance of an interpreter during trial in order to understand the nature of his rights and the criminal proceedings and that, therefore, Barrs was ineffective in failing to provide the petitioner with an interpreter. We disagree.

“Our Supreme Court [in State v. Munoz, 233 Conn. 106, 132, 659 A.2d 683 (1995)] has held that continuous translations are required at trial when a non-English speaking defendant cannot understand or appreciate the proceedings. . . . Elaborating on this principle, the court has stated that under appropriate circumstances, a [non-English speaking] defendant’s [constitutional rights] . . . may be violated if he is not provided with [an] . . . interpreter . . . [for] the testimony of English speaking witnesses and interpreting between him and his English speaking counsel during the testimony of all witnesses .... The court has cautioned, however, that [a] critical factual underpinning of these constitutional requirements ... is that the defendant has so limited an understanding or ability to speak English that his ability to comprehend the proceedings and to communicate with his counsel is significantly impaired, adding that the basic constitutional inquiry is whether [the failure to provide an interpreter throughout the entire trial] made the trial fundamentally unfair . . . and the failure to provide continuous, word-for-word translation will require a new trial only upon such a showing of fundamental unfairness.” (Citations omitted; internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, 57 Conn. App. 550, 553-54, 749 A.2d 657 (2000).

We conclude that under this standard and given the facts as found by the habeas court, Barrs’ failure to obtain a Spanish language interpreter at trial did not deprive the petitioner of any constitutional rights. The record indicates that although the petitioner’s primary language is Spanish, he also understands and communicates with others in English. At the habeas proceedings, the petitioner testified, through an interpreter, that he understands English “[m]ore or less” but that he has difficulty comprehending certain legal concepts in English. When the petitioner attended school, he was in bilingual classes as well as classes that were taught in English. The petitioner further stated that during the competency examinations he underwent prior to trial, the medical professionals communicated with him in English.

At the habeas trial, Barrs testified that during his representation, which occurred over a period of one and one-half years, he communicated with the petitioner in English. In addition, Barrs stated that he met with the petitioner on approximately twenty occasions and that the petitioner spoke in English at these meetings. Barrs also testified that the petitioner never indicated that he was unable to understand English or what transpired in the courtroom. Barrs acknowledged that the petitioner may have had some difficulty comprehending complex legal terms; however, Barrs stated that he had explained these matters to the petitioner in a way that he could understand.

On the basis of this testimony at the habeas trial, as well as transcripts from the underlying criminal trial reflecting that the petitioner had conferred with Barrs, the habeas court determined that the petitioner failed to establish that Barrs’ performance was lacking because he did not obtain a Spanish language interpreter. Specifically, the court found that “the petitioner understands the English language” and also that there was “no credible evidence that the petitioner had any difficulty understanding what was being said at trial.” The court therefore determined that it was “not necessary to have an interpreter assisting the petitioner in translation during the trial.” After reviewing the parties’ briefs and the record, we conclude that the findings of the court are not clearly erroneous. Furthermore, we conclude that the court’s legal conclusion that the petitioner was not deprived of the constitutional right to the effective assistance of counsel was correct legally and logically.

Ill

The petitioner finally claims that the court improperly failed to conclude that Barrs rendered ineffective assistance by not ensuring that the petitioner was competent throughout the criminal trial. We disagree.

The crux of the petitioner’s argument is that Barrs was ineffective in failing to request additional competency evaluations pursuant to General Statutes § 54-56d. In support of his claim, the petitioner, in his post-trial brief to the habeas court and in his appellate brief, referred to a comment made by Barrs during jury selection in which he stated that the petitioner was having difficulty concentrating.

The following testimony and evidence was presented at the hearing on the petitioner’s habeas petition. Barrs testified that shortly after commencing representation of the petitioner, he made a request to the trial court for an examination of the petitioner to determine his competency. The court granted the request, and, subsequently, James Phillips, a physician, evaluated the petitioner and, in a July 26, 1999 report, concluded that the petitioner was “able to understand the proceedings against him and [was] able to assist in his defense.” Phillips’ report was submitted to the trial court on August 24, 1999. Barrs then requested additional time so that another competency examination could be conducted. Thereafter, in September, 1999, Kenneth S. Robson, a physician, conducted an examination of the petitioner. Barrs’ testimony at the habeas trial indicated that Robson, following an evaluation of the petitioner, had found the petitioner to be competent. Robson had noted in his report that the petitioner “appeared to understand the nature of the proceedings against him and appeared clearly able to assist in his own defense.”

Subsequently, on September 19, 1999, Barrs waived a competency hearing, and the case continued. Barrs testified that during his multiple meetings with the petitioner in the months preceding the commencement of jury selection, the petitioner was focused and able to concentrate. In addition, Barrs testified that he “didn’t have any problems with [the petitioner] during jury selection.” Barrs’ testimony indicated that although he had been concerned about the petitioner’s competency when he first met the petitioner, he noticed that over the course of his representation, the petitioner improved and was able to communicate with him, thus quelling Barrs’ initial concerns. Barrs therefore did not request any further evaluations of the petitioner’s competency.

The habeas court, after hearing the testimony of Barrs and on the basis of the evidence presented, concluded that the petitioner had failed to carry his burden of proof under Strickland as to the allegation that Barrs should have requested additional competency examinations. The court found, and we agree, that the petitioner failed to present credible evidence at the habeas proceedings that he “was not mentally competent throughout the underlying criminal trial.” After reviewing the record, we cannot conclude that the court’s factual findings are clearly erroneous. We agree with the court that the petitioner failed to rebut the strong presumption that Barrs’ performance during the criminal trial fell within the wide range of reasonable professional assistance. Accordingly, the court properly concluded that the petitioner failed to satisfy his burden of establishing that Bari's rendered ineffective assistance in failing to request additional competency examinations.

The judgment is reversed only as to the petitioner’s claim of ineffective assistance of counsel concerning the application for sentence review and the case is remanded with direction to render judgment granting the petition for a writ of habeas corpus as to that claim only and restoring the petitioner’s right to apply for sentence review. The judgment is affirmed in all other aspects.

In this opinion the other judges concurred.

       The court, in a thoughtful decision, addressed the petitioner’s eight claims, some of which included subclaims; on appeal, the petitioner briefed but three. We therefore limit our review to the claims set forth in the petitioner’s appellate brief.

       General Statutes § 51-195 provides: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”

       In Ms second amended petition, the petitioner alleged that Barrs “failed to mvestigate the petitioner’s mental competency at the time trial actually began,” “failed to ensure [that] the petitioner was mentally competent tMoughout the entire trial process” and “did not conduct sufficient Mvestigation into mental health issues the petitioner faced during the trial.”

       General Statutes § 54-56d provides m relevant part: “(a) Competency required. DefiMtion. A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense. . . .
      “(c) Request for examination. If, at any time during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency. . . .”

       The record indicates that during jury selection, Barrs stated that the petitioner had problems concentrating the previous day “because he was so tired,” but that the petitioner had “[gotten] a good night’s sleep . . . and [felt] a lot better . . . .”

       The petitioner also claims for the first time on appeal that Barrs provided ineffective assistance when he waived the competency hearing under § 54-56d (e). Because this claim was not raised in the habeas court, and, therefore, the court did not address it, we decline to afford it review. See Kelley v. Commissioner of Correction, 90 Conn. App. 329, 335, 876 A.2d 600, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005).

       Jury selection began on March 1, 2000, and the presentation of evidence commenced on April 3, 2000. The petitioner was sentenced in June, 2000.

       At the habeas trial, the following colloquy occurred between Barrs and the petitioner’s habeas counsel:
      “Q. Now, so you had about a month, at least three weeks between the end of jury selection and the start of evidence. Is that correct?
      “A. That’s correct.
      “Q. Okay. Based on [the petitioner’s] mental health history and the problems that you had during jury selection, did you consult with any mental health experts in those intervening three weeks to make sure [the petitioner] was competent to go forward with trial?
      “A. We didn’t have any problems with him during jury selection, so that’s why we didn’t.”