author: BEAR, J.

text:
    CARA L. ALLEN v. ALFRED H. ALLEN, JR.
    (AC 31310)
    Gruendel, Bear and Dupont, Js.

      Argued September 19, 2011
    officially released April 3, 2012

      Erich Henry Gaston, with whom, on the brief, was Margot Kenefick-Burkle, for the appellant (plaintiff).

      Richard W. Callahan, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Cara L. Allen, appeals from the postdissolution judgment of the trial court denying her motions for contempt, denying her motions to reconsider, staying proceedings on her motion to reopen pending resolution of this appeal, and granting the motion of the defendant, Alfred H. Allen, Jr., for contempt. The plaintiff claims that the court erred in (1) finding her in contempt and failing to find the defendant in contempt, (2) fashioning an improper offset in favor of the defendant against his unallocated support obligation, (3) awarding the defendant attorney’s fees and (4) failing to reconsider or reopen its judgment. We reverse in part and affirm in part the judgment of the trial court.

The record reveals the following facts and procedural history. The parties were married on April 27,1996, and the marriage produced three children. In a complaint dated June 30, 2006, the plaintiff requested dissolution of the marriage on the ground that it had broken down irretrievably. On March 3, 2008, the court dissolved the parties’ marriage, and the dissolution decree incorporated the terms of a separation agreement drafted by the parties (agreement). The agreement provided, inter alia, that the defendant would pay a lump sum property settlement to the plaintiff in the amount of $180,000, and, in exchange, he would own his business, A & A Enterprises, free and clear of any claim by the plaintiff. In addition, the agreement provided for unallocated alimony and support payments to the plaintiff and the children in the amount of $777 per week for a period of five years. The agreement further provided for disposition of the marital residence, which was encumbered by a mortgage and Internal Revenue Service (IRS) liens; the defendant would quitclaim his interest in the residence to the plaintiff and title would be held in escrow until the defendant was able to release or “subrogate” the IRS hens on the marital residence. Once the IRS hens had been paid or subrogated, the plaintiff would refinance the mortgage on the marital residence, releasing the defendant from liability thereunder within ninety days. The agreement provided that in the event the plaintiff was unable to refinance the marital residence, she would list the residence for sale. The agreement also provided that the plaintiff would be responsible for ah expenses associated with the marital residence as of the date she received the $180,000 property settlement. The terms of the agreement were incorporated by reference into the dissolution judgment.

On November 20, 2008, the plaintiff filed a motion for contempt, alleging that the defendant had failed to pay alimony and child support. On January 8, 2009, the defendant filed a motion for contempt, alleging, inter alia, that the plaintiff had failed to comply with terms of the agreement by (1) failing to cooperate in subrogation of the IRS liens, (2) failing to make payments on expenses associated with the marital residence, (3) failing to refinance the mortgage within ninety days once the IRS had stated a willingness to subrogate to the new mortgage and (4) failing to list the residence for sale once she had made clear through her conduct that she did not intend either to refinance the existing mortgage orto occupy the marital residence. The court heard argument on the motions for contempt and, on June 17, 2009, issued a memorandum of decision in which it granted the defendant’s motion and denied the plaintiffs motions. On July 7, 2009, the plaintiff filed a consolidated motion “for reconsideration, reargument, articulation and to re-open evidence,” and, on July 13, 2009, the court denied that motion. This appeal followed. After this appeal was filed, on October 12, 2009, the plaintiff filed another motion in the trial court to open the judgment, and on March 26, 2010, the court deferred proceedings on that motion until after our resolution of this appeal. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the trial court erred in: (1) resolving the parties’ competing contempt motions by (a) finding her in contempt for her failure to refinance or sell the marital residence, (b) finding her in contempt for her failure to pay expenses associated with the marital residence, (c) finding her in contempt for her disposition of the lump sum property settlement and (d) failing to find the defendant in contempt; (2) fashioning a $52,000 credit in favor of the defendant against his support arrearage and continuing support obligation; (3) awarding the defendant attorney’s fees; and (4) improperly (a) denying the plaintiffs motion for articulation, reargument and reconsideration, and (b) refusing to reopen the judgment. We address the plaintiffs claims in turn.

Our standard of review in domestic relations matters is well established. “An appellate court will not disturb atrial court’s orders [financial or otherwise] in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . We apply that standard of review because it reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Medvey v. Medvey, 98 Conn. App. 278, 281, 908 A.2d 1119 (2006).

I

CONTEMPT FINDINGS

“[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

A

The plaintiff first claims that the trial court erred in holding her in contempt for failing to refinance or sell the marital residence. The plaintiff argues that the trial court misinterpreted the terms of the agreement regarding her responsibilities in relation to the marital residence. Specifically, the plaintiff contends that the use of the term “subrogate” in paragraph 3.1 b of the agreement is ambiguous and fails to clarify her responsibilities regarding the refinancing or sale of the marital residence. The defendant contends that the use of the term “subrogate” was a scrivener’s error and that the parties knew that the term meant “subordinate.”

“It is well established that a separation agreement, incoiporated by reference into a judgment of dissolution, is to be regarded and construed as a contract. . . . Accordingly, our review of a trial court’s interpretation of a separation agreement is guided by the general principles governing the construction of contracts. . . . A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . If a contract is unambiguous within its four comers, the determination of what the parties intended by their contractual commitments is a question of law. . . . When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 354-55, 999 A.2d 713 (2010).

Our review of the agreement convinces us that the term “subrogate” was used in error. “Subrogate” has a specific legal meaning that does not comport with the terms and intent of the present agreement as a whole. Accordingly, we conclude, as did the trial court, that the term “subrogate” in the context of the present agreement mistakenly was used instead of “subordinate.” Cf. Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 274, 670 A.2d 880 (“[i]f the word in question appears to be an error, the trial court may, by looking at the contract as a whole, interpret the word so it is more logically suited to the agreement” [internal quotation marks omitted]), cert. denied, 236 Conn. 915, 673 A.2d 1143 (1996).

The plaintiff further argues that the agreement, properly construed, establishes that either the payment or subrogation of the IRS liens encumbering the marital residence was a condition precedent to her obligation to sell or refinance the residence. The plaintiff contends that there was no evidence supporting the court’s determination that her obligation to sell or refinance was triggered. We disagree.

In its recitation of evidence, the court noted that the defendant entered letters into evidence indicating a commitment by the IRS to subordinate its liens. Although the plaintiff argues that the defendant never provided a definitive, written agreement from the IRS, the language of the agreement requires merely an “agreement to subrogate,” which, consistent with our interpretation of the agreement, we construe as an “agreement to subordinate . . . .” The record supports the court’s finding of contempt, as there is sufficient evidence that the IRS agreed to subordinate its liens.

Furthermore, there is evidence in the record, including the plaintiffs own testimony, that she initially believed that she could refinance the existing mortgage on the residence but thereafter changed her mind about whether she would be able to do so. After she determined that she could not refinance the mortgage, she took no action as required by the agreement to list the property for sale. Accordingly, the record supports the court’s finding that the plaintiff “failed to list the property at 210 Beaver Head Road, Guilford, Connecticut, for sale within a reasonable time after she allegedly believed she was unable to refinance the mortgage

Finally, the plaintiff contends that, pursuant to the agreement, the defendant was obligated to release other liens of record on the marital residence before any obligation on her part to refinance or sell was triggered. We conclude that the record is not adequate to address this portion of the plaintiffs claim.

Our review of the transcript and memorandum of decision reveals that the court made no findings about the alleged “other liens,” including but not limited to whether any of them were filed on the land records. After she appealed, the plaintiff did not take any action to obtain findings of fact and conclusions of law by the court about such alleged liens.

“[B]ecause the defendant failed to present an adequate record for review, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Citation omitted; internal quotation marks omitted.) McCarthy v. Cadlerock Properties Joint Venture, L.P., 132 Conn. App. 110, 118, 30 A.3d 753 (2011).

Accordingly, we cannot conclude that the court abused its discretion in finding the plaintiff in contempt for her failure to make any meaningful effort to refinance or sell the marital residence.

B

The plaintiff next claims that the court erred in finding her in contempt for failing to pay expenses associated with the marital residence. The plaintiff argues that, even if she did violate the court’s order relating to the payment of expenses, the court improperly imposed a penalty of $62,000 for her nonpayment. We agree that the trial court improperly concluded that the defendant should be credited with the sum of $62,000 in the manner provided by the court.

The plaintiff testified that she violated the court’s order with regard to payment of marital residence expenses. The court’s finding of contempt on this ground is supported by the record. Accordingly, we affirm the trial court’s finding of contempt as to nonpayment of marital residence expenses. The plaintiffs argument regarding the court’s imposition of the $52,000 “penalty” will be discussed in part II of this opinion.

C

The plaintiff further claims that the court erred in finding her in contempt due to her disposition of the lump sum property settlement. The following additional facts are relevant to the resolution of this claim. In its memorandum of decision, the court stated: “The court finds that the plaintiff made no serious attempt to refinance the mortgage. After her claims that she made these attempts and was told that she would not be able to refinance, she did not list the property for sale within the time period provided in the agreement, but instead she took the $180,000 given to her by the defendant, [which was to pay down the existing mortgage] began house shopping with her boyfriend . . . and . . . proceeded to give $150,000 to him. [Her boyfriend] used this money to purchase a $624,000 home and did not put the plaintiff on the title. [The plaintiff] also failed to make any of the monthly mortgage payments on the marital residence, beginning with the first month she was obligated to do so. She explained that if she had paid the mortgage, she would not have any money left. As a result, the mortgage went into foreclosure, and a foreclosure sale took place several weeks before this hearing, with a debt of $416,000, excluding attorney’s fees and costs. The plaintiffs conduct not only caused the house to go into foreclosure, but it also caused the defendant’s business to be destroyed — both of which had been built up by years of his hard labor.”

The plaintiff argues that the agreement contains no provision providing for a particular disposition of the $180,000 settlement. Moreover, the plaintiff argues that the trial court improperly allowed the defendant to testify, over objection, as to the purpose of the lump sum payment. We disagree that the court erred in finding the plaintiff in contempt.

In finding the plaintiff in contempt, the court stated that “the plaintiff wilfully violated the court’s orders in that she . . . failed to make payment on all expenses associated with the marital residence after she received the payment of the $180,000 . . . .” Paragraph 3.1 b of the agreement states that the plaintiff “shall be responsible to pay all bills associated with the marital residence that are received and due after the payment of the $180,000 lump sum property settlement . . . .” (Emphasis added.) Based on our reading of the memorandum of decision and the agreement, we determine that the court’s finding of contempt was not predicated on disposition of the $180,000 property settlement; rather, it was premised on the plaintiffs failure to pay expenses associated with the marital residence once her obligation to do so had been triggered by transfer of the property settlement. As noted previously, we affirm the trial court’s finding on this ground.

D

In addition, the plaintiff claims that the court erred in failing to find the defendant in contempt for failure to make payments in accordance with his support obligation. The plaintiff argues that the trial court’s finding that the defendant was not wilful in failing to pay his nonmodifiable support obligation is not supported by the record. We are not persuaded.

“To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.” (Internal quotation marks omitted.) Gil v. Gil, 94 Conn. App. 306, 311, 892 A.2d 318 (2006). “[It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn. App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).

The court found that the defendant’s failure to make support payments resulted from “an inability to make the payments as ordered due to his employment history.” Moreover, at the time of its decision, the court found the defendant in arrears on his support payments in the amount of $26,964. Our review of the record supports the court’s finding. Evidence was adduced regarding the effects of the poor economy on the defendant’s employment prospects and his troubled financial situation. We conclude that the trial court did not abuse its discretion in finding that the defendant was not in contempt. Accordingly, the court’s denial of the plaintiffs motion for contempt is affirmed.

II

SANCTIONS

On appeal, the plaintiff claims that the court improperly determined that she was unjustly enriched by her disposition of the property settlement and failure to pay the expenses associated with the marital residence. The plaintiff argues that her disposition of the property settlement cannot give rise to a claim for unjust enrichment because the agreement does not require a particular disposition of the settlement funds. Furthermore, the plaintiff argues that, by fashioning relief in the form of a $52,000 credit against the defendant’s support arrearage and obligations, the court improperly modified a nonmodifiable support order and imposed a punitive sanction. We agree with the plaintiff that the court erred in its determination of sanctions.

As noted in part I C of this opinion, we determine that the court did not find the plaintiff in contempt for her disposition of the property settlement. To the contrary, the court determined that the plaintiff had been unjustly enriched by failing to pay the expenses attributable to the marital residence when her obligation to do so was triggered by the transfer of the $180,000 property settlement. The court thus determined that the plaintiff had been unjustly enriched in an amount equal to the monthly expenses of the marital residence, $4000, multiplied by the thirteen months that had accrued from payment of the property settlement until the date of foreclosure on the marital residence. The court found that this amount equaled $52,000. The court then applied this amount, along with attorney’s fees totaling $14,408, as a “credit” against the defendant’s support obligation.

In a civil contempt proceeding, judicial sanctions are generally either compensatory or coercive; DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278-80, 471 A.2d 638 (1984); and unjust enrichment is a form of compensatory relief. Culver v. Culver, 127 Conn. App. 236, 250-51, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011); Breen v. Judge, 124 Conn. App. 147, 158-59, 4 A.3d 326 (2010). Nonetheless, a compensatory fine must “be based upon evidence of complainant’s actual loss .... [I]t is well settled . . . that [a] court may, in a proceeding for civil contempt, impose [a] remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender. . . . [S]uch a compensatory fine must necessarily be limited to the actual damages suffered by the injured party as a result of the violation of [a court order].” (Citations omitted; internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., supra, 278-79.

In determining that the plaintiff had been unjustly enriched by her failure to pay the expenses associated with the marital residence, the court fashioned remedial compensation in the form of an offset against the defendant’s support arrearage and ongoing support obligation. In this circumstance, however, the court erred in valuing the “compensatory fine.” Although the court properly found that the plaintiff had failed to pay expenses related to the marital residence, the court erred in failing to determine whether the defendant actually was harmed in an amount equal to $52,000, the sanction it imposed. Accordingly, we conclude that the court exceeded its discretion in formulating the $52,000 offset.

in

ATTORNEY’S FEES

The plaintiff next claims that the court erred in awarding the defendant attorney’s fees. Specifically, the plaintiff argues that “[i]n light of the existence of the arrearage, [the] [plaintiffs good-faith defenses to [the] [defendant's claims of contempt, that necessary factual predicates for a contempt finding against the [p]laintiff relating to the refinancing/sale of the [m]arital [Residence were not established, and that there has been no financial detriment to the [defendant as a result of the [foreclosure [a]ction, the trial court should not have awarded attorney’s fees.”

The plaintiff further argues, in her reply brief, that the court provided an improper “blanket” award of fees and “made a number of egregious factual and legal errors in awarding attorney’s fees.” Specifically, the plaintiff argues that the court improperly punished her based on its erroneous finding that the defendant’s business was destroyed due to her actions and that the court, in formulating the award, failed to consider her financial circumstances, the best interests of the children and “what portions of the requested attorney’s fees were attributable to contempt on the part of the plaintiff,” as the plaintiff “cannot be properly charged with any time that [the] [defendant's counsel spent dealing with the IRS or the ‘subrogation’ of the IRS hen as part of a finding of contempt.” We disagree with the plaintiff that the court abused its discretion in awarding attorney’s fees because of her contemptuous conduct but agree that the court should not have awarded fees related to the defendant’s time spent negotiating with the IRS.

“Our law for awarding attorney’s fees in contempt proceedings is clear. General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court. ... In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorney’s fees. . . . [T]he award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory . . . .” (Internal quotation marks omitted.) Kravetz v. Kravetz, 126 Conn. App. 459, 471-72, 11 A.3d 1141 (2011). Here, the court acted within its discretion in determining that the defendant, as the prevailing party in the contempt actions, was entitled to an award of attorney’s fees.z

“[W]here contempt is established, the concomitant award of attorney’s fees properly is awarded pursuant to § 46b-87 and is restricted to efforts related to the contempt action.” (Internal quotation marks omitted.) Medvey v. Medvey, supra, 98 Conn. App. 285 n.6; see also Eldridge v. Eldridge, 244 Conn. 523, 538, 710 A.2d 757 (1998). The defendant’s negotiations with the IRS were unrelated to the contempt action in that they were an obligation of the defendant pursuant to the agreement and judgment. That is, the defendant would have been obligated either to secure the release of or to “subrogate” the IRS hens, prior to and independently of the plaintiffs actions constituting her contumacious conduct. The court exceeded its discretion in awarding fees for such efforts by the defendant. Accordingly, we vacate the award of attorney’s fees and remand this matter to the court for further proceedings in accordance with this opinion.

IV

MOTIONS TO RECONSIDER/REARGUE AND REOPEN JUDGMENT

The plaintiffs final claims on appeal are that the court improperly denied her motion “for reconsideration, reargument, articulation and to re-open evidence,” and failed to reopen its judgment by refusing to consider certain evidence. We disagree.

As to the consolidated motion for reconsideration and reargument, the plaintiff argues that her motion “presented the trial court with an opportunity to correct the contract construction error regarding the agreement. It was error for the trial court not to grant reconsideration and reverse the finding of contempt against the plaintiff.” A review of the plaintiffs consolidated motion reveals that the plaintiff sought reconsideration of the court’s contempt finding regarding her failure to refinance or sell the marital residence on the ground that the court improperly failed to consider evidence of “other hens . . . .” Moreover, the plaintiff contended in her motion that the defendant had not met his burden of proof in that he failed to produce any evidence of a written subordination agreement from the IRS or evidence that the alleged “other liens” had been released.

“The granting of a motion for reconsideration . . . is within the sound discretion of the court. The standard of review regarding challenges to a court’s ruling on a motion for reconsideration is abuse of discretion. As with any discretionary action of the trial court . . . the ultimate [question for appehate review] is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn. App. 849, 866, 977 A.2d 738 (2009). Based on our analysis in part IA of this opinion pertaining to the record on appeal, we are left to speculate as to the specific factual and legal basis for that portion of the contempt ruling challenged by the plaintiffs motion for reconsideration and reargument. Accordingly, we do not have a factual or legal basis sufficient to determine that the court abused its discretion in denying the motion.

With regard to the motion to reopen the judgment, the plaintiff argues that she presented the court with evidence that there was no deficiency judgment relating to the foreclosure of the marital residence. The plaintiff argues that “good cause mandated reopening the judgment” under the circumstances because the evidence demonstrated that the factual predicate underlying the court’s award of the $52,000 credit was erroneous. We decline to reach this issue, as it is rendered moot by our determination in part II of this opinion.

The judgment with respect to the order providing for a $52,000 offset against the defendant’s unallocated support arrearage and ongoing support obligation is reversed, the award of $14,408 in attorney’s fees is vacated and the case is remanded for reconsideration of sanctions and attorney’s fees in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       On November 26, 2008, the plaintiff filed a second motion for contempt, alleging that the defendant had failed to pay unreimbursed medical expenses. That motion is not a subject of this appeal.

       In addition to the motions for contempt, the court, in its memorandum of decision, also addressed the defendant’s motion for modification of parenting access. That motion, however, is not before this court on appeal.

       On January 5, 2010, while this appeal was pending, the plaintiff filed a motion for articulation with respect to the basis for the trial court’s award of a $52,000 credit to the defendant in its June 17, 2009 decision on the motions for contempt. The motion was denied by the trial court. On March 5, 2010, the plaintiff filed a motion for review with this court. On April 21, 2010, we granted the motion for review but denied the relief requested therein.

       Paragraph 3.1 of the agreement provides: “Real property shall be distributed as follows:
      “a. The [plaintiff] shall own free and clear from any claim by the [defendant] the marital residence known as 210 Beaver Head Road, Guilford, CT. [The defendant] shall Quit Claim his interest to the [plaintiff] within 14 days of the date of dissolution. Said title shall be held in escrow until the IRS lien is released or subrogated. The [defendant] shall be current on all [pen-dente [l]ite orders through the payment of the $180,000 lump sum property settlement set forth herein.
      “b. [The plaintiff] shall be responsible to pay all bills associated with the marital residence that are received and due after the payment of the $180,000 lump sum property settlement, regardless of whether the service was for a period that preceded the payment. The marital residence is encumbered by IRS liens which the [defendant] shall be responsible to obtain their release from title or an agreement from the IRS to subrogate to allow the refinance. [The defendant] shall also be responsible to cure any other liens of record clouding title to the marital residence, except the mortgage lien. Once the IRS liens [are] released or there is an agreement to subrogate, and any other liens that may exist are released, [the plaintiff] shall refinance all mortgage liens on the marital residence to remove the [defendant] from liability thereunder within 90 days of the IRS liens being cured (either released or agreement to subrogate) and her receiving her cash property settlement for her equitable interest in the [defendant’s] business set forth herein. In the event the [plaintiff] cannot refinance the house within the time set forth herein, then the house shall be listed for sale and the first reasonable offer shall be accepted. The parties agree that the court shall retain jurisdiction to monitor the refinance and/or sale of the marital residence. Upon the event of the sale of the residence, the [plaintiff] shall retain the net sale proceeds or be responsible for any net loss.
      “c. [The defendant] shall install a new septic system at the marital residence, at his sole expense, within 30 days from the date of dissolution. The work shall be completed in accordance with all housing and safety codes for a three bedroom house. [The defendant] shall be responsible for any and all permits needed for the work. Upon completion of said work, all debris will be removed, the land shall be graded and seeded and left in a ‘like new’ condition.
      “d. During the pendency of this action, the [defendant’s] grandfather transferred 1073 Durham Road, Guilford, CT to Christine Mulvey, a significant other of the [defendant]. The [plaintiff] waives any claims, legal or equitable, she had or may have had to claim any interest in said property.”

       In her brief, the plaintiff claims that there is a significant ambiguity in paragraph 3.1 of the agreement because of the use of the word “subrogate.” She asserts that even if “subrogate” was mistakenly used in place of “subordinate,” “either word does not make clear to the [p]laintiff what her obligations were in terms of the refinance of the [mjarital [Residence and IRS liens

       “Subrogate” is defined: “To substitute (a person) for another regarding a legal right or claim.” Black’s Law Dictionary (9th Ed. 2009). “Subordinate,” in contrast, is defined: “To place in a lower rank, class, or position; to assign a lower priority to.” Id.

       Although the trial court did not explicitly determine that the term “subro-gate” was used erroneously, we infer this conclusion from the result reached by the court. See Evans v. General Motors Corp., 277 Conn. 496, 508, 893 A.2d 371 (2006) (court’s ruling on particular issue can be inferred through substantive effect of court’s orders and memorandum of decision). For example, the court stated in its memorandum of decision: “The defendant argues that he worked diligently to have the lien subrogated, so that the plaintiff would be able to refinance. He introduced several letters into evidence which indicate that he had a commitment of the IRS to subrogate the lien, and provided the plaintiff with the name of a loan officer who was willing to ‘take and process [the plaintiffs] application to refinance and that lenders will close with a subordination because the IRS lien will not affect the lender’s position.’ ” Furthermore, the memorandum provides that the court found the plaintiff in contempt, in part, for failing “to cooperate in the subordination of the IRS liens . . . .”

       It is undisputed that the defendant paid the $180,000 property settlement to the plaintiff.

       Specifically, the following colloquy took place between the plaintiff and her counsel:
      “Q. Did you believe at the time of the dissolution that you might be able to refinance the mortgage?
      “A. Yeah.
      “Q. Okay. Did you find out subsequent to the dissolution that you were unable to refinance the mortgage?
      “A. Sss — yes.”

       The following colloquy between the defendant’s counsel and the plaintiff took place at the contempt hearing:
      “Q. You had money available to you that could allow you to comply with the court’s orders [with regard to payment of the mortgage],
      “A. Yes.
      “Q. Okay; but you chose not to.
      “A. Yes.”

       To the extent that the court found that the $180,000 settlement was to be applied toward payment of the marital residence’s expenses, we determine that such finding is clearly erroneous as the agreement provides only that the $180,000 was to be paid as compensation for the plaintiffs interest in the defendant’s business. Any evidence in the record to the contrary is parol. See Benvenuti Oil Co. v. Foss Consultants, Inc., 64 Conn. App. 723, 727, 781 A.2d 435 (2001) (“[t]he parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract” [internal quotation marks omitted]).

       In addition, we note that, on remand, the court should consider the support guidelines and best interests of the minor children in determining whether and in what amount, if any, to offset against the defendant’s support obligation. See Santoro v. Santoro, 70 Conn. App. 212, 218-19, 797 A.2d 592 (2002).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. GERALDO ROSADO
    (AC 33523)
    Bear, Espinosa and Dupont, Js.

      Argued November 17, 2011
    officially released April 3, 2012

      Charles F. Willson, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Geraldo Rosado, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal, (2) failed to provide a requested charge to the jury and (3) abused its discretion in precluding cross-examination of a state’s witness with regard to statements made by a third party. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 17, 2006, Juan Nunez, Luis Santana and the defendant met with a drug dealer, known by the street name “Primo,” in the Hill section of New Haven. At the meeting, Primo placed a $15,000 bounty for the killing of Aaron McRae, the victim, in response to the murder of one of Primo’s associates, a man known as “Carlito.” Nunez, Santana and the defendant had been friendly with Carlito. At the meeting, Primo provided Santana with two handguns, a nine millimeter semiautomatic pistol and a .38 caliber revolver.

After meeting with Primo, the defendant, Nunez and Santana were made aware that the victim was present in the area, and Nunez and the defendant proceeded to the victim’s location near the Church Street South housing project. There, the defendant observed the victim talking to an unidentified black male.

According to the defendant, Santana, who at that point was positioned in an alleyway, ran across the street and fired a number of gunshots into the victim’s back. Expert and forensic evidence revealed that the victim was killed by between seven and nine gunshot wounds, fired from two weapons. The New Haven police received a 911 call after the shooting wherein the caller stated that the victim had been shot by “two Spanish guys.”

After the shooting, Nunez and the defendant fled to Nunez’ house, where they met Santana. Santana changed clothing, and Santana and Nunez hid the weapons. Meanwhile, the defendant remained on Nunez’ porch and smoked a cigarette.

Shortly thereafter, the police uncovered the handguns stashed at Nunez’ house. After the weapons were discovered, the defendant received a telephone call from Santana, who told the defendant that “they caught his guns,” before hanging up. The police spoke with the defendant on several occasions after the murder, and, initially, he denied being in the area of the Church Street South housing project at the time of the shooting and, furthermore, denied any involvement in the shooting. Later, the defendant provided the police with a statement detailing his presence at the meeting with Primo, at the scene of the shooting and at Nunez’ house after the shooting.

On December 16, 2006, the defendant was arrested in connection with the victim’s murder. On April 13, 2009, the state filed an amended information, charging the defendant with the crimes of murder in violation of § 53a-54a, conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. At trial, the state adduced testimony from an expert witness who opined that DNA “mixtures” from three individuals were present on the handgrips of the two handguns seized by the police. The expert testified that the forensic evidence could not eliminate the defendant as a possible contributor with respect to the DNA on either weapon.

On April 16, 2007, after the close of the state’s casein-chief, the defendant filed a motion for a judgment of acquittal, which the court granted as to the counts alleging murder, criminal possession of a firearm and carrying a pistol without a permit. The court denied the motion as to the conspiracy count. On April 17, 2009, a jury found the defendant guilty on the count of conspiracy to commit murder. The court sentenced the defendant to a total effective sentence of twenty years incarceration, execution suspended after fifteen years, and five years probation.

Thereafter, the defendant filed a postverdict motion for a judgment of acquittal. On August 27, 2009, the court heard argument on the motion and, on August 28, 2009, issued a memorandum of decision denying the motion. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant first claims that the evidence was insufficient to support the conspiracy conviction. Specifically, the defendant argues that the only evidence connecting him to the shooting was his own statement to police investigators. The defendant claims that there was no evidence that he played a role in the shooting, “such as lookout, get away driver, or trig-german” and, furthermore, that there was no testimony that anyone saw him at the scene of the shooting. The defendant contends that his mere presence at three locations associated with the murder, combined with inconclusive DNA evidence and evidence regarding Santana’s telephone call, does not suffice to support his conviction on the conspiracy charge. We disagree.

We begin our analysis by setting forth the appropriate standard of review. “In reviewing the denial of a motion for [a] judgment of acquittal, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether, from all of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 81 Conn. App. 152, 155, 838 A.2d 1030, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004).

“To establish the crime of conspiracy to commit murder, the state must show that there was an agreement between two or more persons to cause the death of another person and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. ... In addition, the state also must show that the conspirators intended to cause the death of another person. . . . The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Mourning, 104 Conn. App. 262, 267-68, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007).

The defendant’s argument on appeal relies on the axiom that “mere presence at the scene of the crime, even coupled with the knowledge that a crime was being committed there, is not sufficient to establish guilt of a conspiracy. . . . Evidence tending to show knowing participation in a conspiracy is also needed.” (Citations omitted.) State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987). The defendant contends that the evidence adduced at trial was insufficient to establish anything other than his mere presence at the scene of the murder. Accordingly, the defendant argues that, on the basis of the record, no reasonable jury could have concluded that he agreed to participate in the conspiracy.

In proving the requisite element of agreement, “[i]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands or uttered the words we have an agreement .... Indeed, [b]ecause of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . [A] conspiracy can be inferred from the conduct of the accused.” (Citations omitted; internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 168, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). Although mere presence at a crime scene, standing alone, generally is insufficient to infer an agreement, “a defendant’s knowing and willing participation in a conspiracy nevertheless may be inferred from his presence at critical stages of the conspiracy that could not be explained by happenstance . . . .” (Internal quotation marks omitted.) United States v. Blackwood, 366 Fed. Appx. 207, 210 (2d Cir. 2010); see also United States v. Aleskerova, 300 F.3d 286, 293 (2d Cir. 2002); United States v. Pedroza, 750 F.2d 187, 198-99 (2d Cir. 1984).

In the present matter, there was sufficient circumstantial evidence from which the jury reasonably could have inferred the defendant’s knowing participation in a conspiracy to murder the victim. The defendant was not merely present at the scene of a shooting. Additionally, the defendant also was present at critical stages in the planning and execution of the victim’s murder, and the subsequent concealment of the weapons. See, e.g., State v. Smith, 15 Conn. App. 122, 126, 543 A.2d 301 (defendant’s conduct before, during and after commission of crime providing sufficient evidence of participation in conspiracy to commit crime), cert. denied, 209 Conn. 805, 548 A.2d 441 (1988).

By his own account, the defendant was present when Primo planned the killing of the victim, provided weapons to Santana and offered $15,000 for the victim’s murder. Upon learning that the victim was in the area, the defendant positioned himself in a location where he could not only observe the victim, but also observe Santana, who the defendant knew was armed. The defendant, by his own account, watched as Santana approached the victim from behind and fired a number of gunshots into his back. The defendant then fled the scene and met with Santana at Nunez’ house. The defendant remained on the front porch of the house smoking a cigarette, while Nunez and Santana hid the murder weapons. The jury reasonably could have inferred that the defendant, knowing that Santana was going to kill the victim, acted as a lookout while he watched the murder take place, fled the scene thereafter and rejoined Santana and Nunez at Nunez’ house, where he also acted as a lookout while Nunez and Santana hid the murder weapons.

Moreover, there was evidence that once the police had located the murder weapons, Santana contacted the defendant to inform him of the seizure. Additionally, DNA evidence produced at trial could not rule out that the defendant touched or handled the murder weapons. Finally, the defendant provided false statements to the police during their subsequent investigation regarding his presence at the minder scene. See State v. Jimenez, 74 Conn. App. 195, 212, 810 A.2d 848 (2002) (misstatement made to police subsequent to crime probative of consciousness of guilt), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003).

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Green, 62 Conn. App. 217, 223, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002). Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient to support a finding beyond a reasonable doubt that the defendant had conspired to murder the victim.

II

The defendant next claims that the court improperly refused to include a requested adverse inference jury instruction relating to the failure of the police to preserve and to produce notes from interviews conducted with a concerned citizen informant and with the defendant. We disagree.

The following additional facts are relevant to our analysis. Detective Michael Hunter of the New Haven police department was involved with the investigation of the victim’s murder. During the course of his investigation, Hunter was contacted by a concerned citizen informant. Hunter met with the concerned citizen and was told that a third party had contacted the concerned citizen and confessed to shooting the victim. During cross-examination by defense counsel, Hunter admitted that he likely had taken notes during his conversation with the concerned citizen, but that he had misplaced his investigation notes and was unable to locate them. Hunter also testified that his partner had taken notes during an interview with the defendant that occurred immediately prior to the defendant’s giving a recorded statement to the police. Hunter testified that he did not know the whereabouts of his partner’s prestatement interview notes. Hunter further testified that his investigation notes had not been destroyed deliberately.

Thereafter, the defendant filed a request to charge, including the following proposed instruction: “That the jury can make an adverse inference if evidence were deliberately destroyed or ignored to prevent its utilization by the defense. Absent proof of such deliberate action, however, it is illogical to postulate that the failure even if negligent, of a police investigation to discover and record all available tangible evidence requires [an] inference that the evidence had it been discovered and recorded, would be favorable to the defendant. State v. Santangelo, 205 Conn. 578, 595-96 [534 A.2d 1175] (1987).” The court declined to give the requested charge, reasoning that the record did not provide a factual basis for such an instruction.

“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence. ... [T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 314, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

We agree with the court’s determination that there was no factual basis for the specific charge requested by the defendant. The record is bereft of any evidence from which a jury reasonably could infer that the police deliberately destroyed or ignored evidence to prevent its utilization by the defense. Accordingly, we do not conclude that the court abused its discretion in refusing to give the requested instruction under the circumstances.

Moreover, the defendant has failed to show that it was more probable than not that the failure to give the requested instruction affected the result of the trial. The defendant argues that, because the state’s evidence was not clearly overwhelming, “a jury instruction that highlighted the deficiency of the investigation, and that fostered a pro-[d]efendant inference by the jury, likely would have changed the outcome [of the case].” The adverse inferences that the defendant claims the jury would have drawn had the court given the requested instruction, however, amount to nothing more than speculation on the part of the defendant. See State v. Figueroa, 235 Conn. 145, 175, 665 A.2d 63 (1995). Accordingly, under the circumstances presented, the court’s refusal to give the requested adverse inference instruction was neither improper nor material to the outcome of the trial.

Ill

The defendant’s final claim on appeal is that the court abused its discretion in precluding his cross-examination of a state’s witness regarding the police investigation. Specifically, the defendant argues that the court should have permitted defense counsel to inquire whether the defendant was identified by the concerned citizen who spoke to Hunter, as noted in part II of this opinion, because such evidence was not hearsay, in that the absence of a statement of positive identification does not constitute assertive conduct. The defendant contends that the court’s restriction on cross-examination violated his rights under both the federal and state constitutions, as well as his common-law right to confrontation. We disagree.

The following additional facts are relevant to our analysis. During cross-examination of Hunter, defense counsel asked whether Hunter believed the information provided by the concerned citizen would have been valuable to the defendant. Hunter responded that he did not believe that the information was helpful to the defendant because “it doesn’t take him out of it.”

Outside the presence of the jury, defense counsel argued, over an objection by the state, that he should be allowed to question Hunter regarding statements made by the concerned citizen in order to impeach Hunter’s testimony. The defendant’s offer of proof provided that the concerned citizen had told Hunter that someone other than the defendant had shot the victim and that the concerned citizen had not mentioned the defendant. The court sustained the state’s hearsay objection, noting that the statements the defendant sought to introduce only had impeachment value if offered for the truth of the matter asserted. The defendant then asked whether the court would permit the following question: “Did the concerned citizen mention [the defendant]?” The state objected to the question on hearsay grounds, and the court again sustained the state’s objection.

The standard of review applicable to the defendant’s evidentiary claim is well established. Our review of whether the challenged answer sought to be elicited by the question properly may be classified as hearsay or whether a hearsay exception properly is identified is plenary. See State v. Davis, 298 Conn. 1, 10, 1 A.3d 76 (2010). “We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Internal quotation marks omitted.) Id., 10-11. If the court “properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail.” Id., 11.

The defendant argues that the court improperly precluded inquiry into whether he was identified by the concerned citizen. The defendant contends that the evidence he sought to introduce was not hearsay and specifically argues that there “was no indication that there was any communicative conduct during the interview of the concerned citizen, let alone conduct intended as an assertion.”

“ ‘A statement made out-of-court that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible. . . .’ A ‘statement,’ as that term is used in the hearsay rule and its exceptions, is defined in § 8-1 (1) of the Connecticut Code of Evidence as ‘(A) an oral or written assertion or (B) nonverbal conduct of a person, if it is intended by the person as an assertion.’ The commentary to the rule further explains that ‘[t]he effect of this definition is to exclude from the hearsay rule’s purview nonassertive verbalizations and nonassertive, nonverbal conduct.’ Conn. Code Evid. § 8-1 (1), commentary. Moreover, in State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985), [the court] concluded that where silence is offered as nonverbal conduct, such evidence is inadmissible unless it is ‘a rehable indicator of what the [preferring party] claims it tended to communicate . . . (Citations omitted.) State v. Carpenter, 275 Conn. 785, 859, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).

The evidence the defendant sought to introduce would only have value in impeaching Hunter’s statement that the concerned citizen did not “take [the defendant] out of it” — the purpose for which the defendant sought to introduce the evidence — if a fact finder could infer from the concerned citizen’s silence that the defendant had no association or involvement with the crime. Accordingly, the defendant sought to use the concerned citizen’s silence in an assertive manner. See State v. King, 249 Conn. 645, 670-72, 735 A.2d 267 (1999). Moreover, even if we were to assume that the concerned citizen’s failure to mention the defendant should be construed as nonassertive conduct, such silence as to the defendant’s participation in the planning, execution and aftermath of the crime, standing alone, would not contradict Hunter’s testimony. Under either view of the evidence, the proffered testimony properly was excluded. See, e.g., id., 670-74.

Because we determine that the court properly excluded the proffered evidence, the defendant’s constitutional claims necessarily fail. See State v. Davis, supra, 298 Conn. 11.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the police seized a .38 caliber revolver and a nine millimeter pistol from the apartment building where Nunez resided.

       Specifically, the court stated: “Let me just say with respect to [the defendant’s] . . . request to charge, which is that the jury can make an adverse inference if evidence were deliberately destroyed or ignored to prevent its utilization by the defense, I just do not believe that even looking at the case in the light most favorable to the defendant that a factual basis exists for such a charge, and it will not be given, and you can certainly have an exception on that.”

       In addition to his claim that the proffered evidence did not constitute hearsay, the defendant also claims that the evidence falls within the identification exception to the hearsay rule. The defendant, however, failed to raise this exception at trial, arguing only that the evidence was admissible either (1) to impeach Hunter’s statement or (2) under the state of mind exception to the hearsay rule. See Practice Book § 5-2. “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than atrial by ambuscade of the trialjudge.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); see also Practice Book § 60-5. We therefore decline to review this claim.

       The following colloquy took place outside the presence of the jury with regard to the proposed question:
      “[Defense Counsel]: Would the court permit this one question? Did the concerned citizen mention [the defendant]?
      “The Court: Well, I take it, the question — the answer to that is no?
      “[Defense Counsel]: That’s correct.
      “The Court: Excuse me. The answer to that is no?
      “[Hunter]: Yes, Your Honor.
      “The Court: Yes, the—
      “[Hunter]: I’m sorry. No.
      “The Court: Yes, the answer is no. Well, I guess that that is — I’m trying to think that — I’m trying to think if that calls for a hearsay response. It may not. Do you object to that question?
      “[The Prosecutor]: I do, Your Honor, because what it is — you know it’s one thing to say what did the concerned citizen say. Clearly, that would elicit a hearsay response.
      “The Court: Right.
      “[The Prosecutor]: This is doing the exact same thing in a sense, because what it’s doing is — the question—
      “The Court: The dog that didn’t bark in the night.
      “[The Prosecutor]: Right. The question presumes facts.
      “The Court: The objection is sustained.”
      The court’s reference to “[t]he dog that didn’t bark in the night” is to a point made by Sherlock Holmes in Silver Blaze, a story by Sir Arthur Conan Doyle, where the fact that a dog did not bark during the night when a race horse was removed from a stable was an important clue to solve the mystery of who removed that horse from the stable. The point is highlighted in the story as follows:
      “ ‘Is there any point to which you would wish to draw my attention?’
      “ ‘To the curious incident of the dog in the night-time.’
      “ ‘The dog did nothing in the night-time.’
      “ ‘That was the curious incident,’ remarked Sherlock Holmes.
      “ ‘Before deciding that question I had grasped the significance of the silence of the dog, for one true inference invariably suggests others. The Simpson incident had shown me that a dog was kept in the stables, and yet, though some one had been in and had fetched out a horse, he had not barked enough to arouse the two lads in the loft. Obviously the midnight visitor was someone whom the dog knew well.’ ’’ A.C. Doyle, The Complete Sherlock Holmes, Vol. 1 (Barnes & Noble Classics 2003) Silver Blaze, pp. 413, 415.

       Furthermore, the defendant has failed to include in his appellate brief any analysis of the effect, if any, of the fact that the operative declarant in the present matter is not the concerned citizen but is the individual who relayed the information to the concerned citizen. That is, the defendant has failed to offer any analysis as to how the evidence sought to be offered would overcome this additional exclusionary hurdle. See Miron v. University of New Haven Police Dept., 284 Conn. 35, 51, 931 A.2d 847 (2007) (“[h]earsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception” [internal quotation marks omitted]).


author: LAVERY, J.

text:
    ANDRE DENNIS v. COMMISSIONER OF CORRECTION
    (AC 32155)
    DiPentima, C. J., and Bear and Lavery, Js.

      Argued October 13, 2011
    officially released April 3, 2012

      Bradford Buchta, assistant public defender, for the appellant (petitioner).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were John Connelly, former state’s attorney, and Karen Diebolt, assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVERY, J.

The petitioner, Andre Dennis, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The dis-positive issue on appeal is whether the court properly determined that the petitioner was represented by counsel during the underlying criminal proceedings. We conclude that the court erred in determining that the petitioner was represented by counsel. Accordingly, we reverse the judgment of the habeas court.

The following facts and procedural history are relevant to our review of the petitioner’s appeal. The underlying criminal proceedings stem from three independent arrests. First, the petitioner was arrested on November 16, 2006, and charged with various criminal and motor vehicle offenses under four separate warrants. Second, the petitioner was arrested on March 20, 2007, and charged with various criminal offenses including criminal mischief in the third degree, violation of a restraining order and threatening in the second degree under three additional warrants. Third, the petitioner was arrested on March 22, 2007, and charged with, among other offenses, criminal mischief in the second degree and harassment in the second degree under another three warrants. Therefore, the petitioner had a total of ten criminal cases.

Following the petitioner’s first arrest, a public defender was appointed during the petitioner’s arraignment. The court set the petitioner’s bond at $100,000. The petitioner posted bond and then hired a private attorney, Michael Ferguson, to represent him on the four cases which arose out of his first arrest.

At the petitioner’s arraignment for his second arrest on March 21, 2007, the court asked the public defender whether the petitioner qualified for public defender services. The public defender responded that the petitioner would like to represent himself. Without canvassing the petitioner, the court permitted him to do so. The court then set the petitioner’s bond at $250,000 which was not posted.

The next day, the petitioner was arraigned on the final three cases. At the arraignment, the court asked the petitioner whether he wished to argue his bond himself or have a lawyer argue it. The petitioner responded: “It doesn’t matter.” The petitioner then informed the court that he had retained an attorney, Michael Ferguson. The assistant state’s attorney informed the court that although Ferguson did in fact represent the petitioner in four cases, he had notified the state that he was not going to enter appearances in the new files. The court then set the petitioner’s bond at $55,000, which was not posted.

On May 8, 2007, the petitioner appeared before the court again. The assistant state’s attorney informed the court that Ferguson would not be representing the petitioner in the six new cases. The public defender then informed the court that although he would like to be appointed for the purposes of the bond hearing, he would not like it to be a full appointment because the petitioner had posted a $100,000 bond in the first four cases, and, therefore, the petitioner was able to hire private counsel for the remaining six cases. Ultimately, the public defender deferred to the court on whether a public defender should be appointed to fully represent the petitioner. The court, however, took no action but stated that it would address the issue on the next court date. The next court date was on May 15, 2007, but the issue was not addressed.

On June 19, 2007, the petitioner appeared before the court again. Ferguson informed the court that he represented the petitioner in only four of the ten cases and that the petitioner did not have an attorney in the other six cases. The assistant state’s attorney then informed the court that an offer had been made to resolve all ten of the petitioner’s pending criminal cases. The petitioner accepted the state’s plea bargain offer for a total effective sentence of five years incarceration. After canvassing the petitioner pursuant to Practice Book § 39-19, the court accepted his pleas of guilty. The petitioner’s case was continued to July 23,2007, for sentencing.

On July 23, 2007, the assistant state’s attorney informed the court that she had received a letter from the petitioner that appeared to be a request to withdraw his pleas of guilty. One of the reasons that the petitioner gave for wanting to withdraw his pleas was that he had represented himself on six of the ten cases. Ferguson reminded the court that he only represented the petitioner on four of the ten cases. The court ultimately denied the petitioner’s request to withdraw his pleas. The court then imposed a total effective sentence of five years incarceration. The petitioner did not file a direct appeal.

On March 12, 2008, the petitioner filed a petition for a writ of habeas corpus. Through his investigation, the petitioner’s attorney for this habeas matter, Bradford Buchta, discovered that there was no factual basis for one of the charges in which the petitioner was unrepresented and to which he pleaded guilty. Buchta informed the assistant state’s attorney, who agreed, and on July 15, 2009, the state filed a motion to correct an illegal sentence in the trial court for a case in which the petitioner was unrepresented. The state asked that the petitioner’s guilty plea and sentence be set aside and that the charge of criminal violation of a restraining order be dismissed because there in fact had not been a restraining order in effect at the time. The court granted the state’s motion. The remainder of the plea agreement and the total effective sentence was not affected by this decision because the petitioner also was serving a separate and concurrent five year sentence with the same discharge date.

The petitioner’s amended petition for a writ of habeas corpus alleged that he was denied his sixth amendment right to counsel for the six cases in which he was self-represented. The respondent, the commissioner of correction, argued that the petitioner’s claim was procedurally defaulted because the petitioner failed to raise the claim in the trial court or on direct appeal. After a trial, the court orally rendered judgment in favor of the respondent. The court found that the petitioner was procedurally defaulted for failing to appeal his motion to withdraw his guilty pleas. The court also concluded that the petitioner did not waive his right to counsel but, rather, “declined to exercise [his] right to have either a public defender if he was indigent or hire counsel to represent him." The court stated that the petitioner elected to proceed representing himself and could have, at any time during the proceedings, requested the services of a public defender. The court further concluded that Ferguson, who represented the petitioner on four of the ten cases and having negotiated a global settlement on all ten of the cases, “acted as a de facto counsel representing him in the other six matters.” The court then denied the petition for a writ of habeas corpus.

On appeal, the petitioner claims that (1) the habeas court erred by applying the procedural default doctrine to his claim, (2) the habeas court erred in finding that the petitioner’s criminal defense attorney acted as his “de facto” counsel for all ten cases, and that the “de facto” representation met the requirements of the sixth amendment, (3) the habeas court erred in finding that the petitioner knowingly and intelligently waived his right to counsel in six of the ten cases disposed of as part of the plea agreement, (4) harmless error analysis does not apply and prejudice is presumed and (5) the appropriate remedy on remand is to order that the habeas corpus petition be granted and that the entire plea agreement be vacated. The respondent argues that the habeas court properly denied the petition because the petitioner was not denied his sixth amendment right to counsel. We agree with the petitioner as to all claims.

“[T]he standard of review for 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 sixth amendment to the United States constitution has long guaranteed the right to assistance of counsel in all criminal prosecutions. U.S. Const., amend. VI. The sixth amendment right to counsel is made applicable to state prosecutions through the due process clause of the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). It has long been recognized that the right to counsel is the right to the effective assistance of counsel.” (Citation omitted; internal quotation marks omitted.) Solek v. Commissioner of Correction, 107 Conn. App. 473, 481-82, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

The preliminary issue on appeal is whether the habeas court erred in finding that the petitioner’s claim was barred by the doctrine of procedural default. “The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal . . . .” (Internal quotation marks omitted.) Id., 478-79 n.2. “In Wainwright v. Sykes, [433 U.S. 72, 87, 90-91, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)], the Supreme Court held that a petitioner who raises a constitutional claim for the first time in a habeas proceeding must show: (1) cause for the procedural default, i.e., for the failure to raise the claim previously; and (2) prejudice resulting from the alleged constitutional violation. In the absence of such a showing, a court will not reach the merits of the claim. We adopted this standard for state habeas proceedings in Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).” Duperry v. Solnit, 261 Conn. 309, 331-32, 803 A.2d 287 (2002).

The petitioner contends that the procedural default doctrine does not apply in instances where, as here, violation of the sixth amendment right to counsel is alleged. At oral argument before this court, the assistant state’s attorney stated that the issue of whether the petitioner was barred by the doctrine of procedural default and the issue of whether the petitioner was denied his constitutional right to counsel would require the same inquiry by this court. The respondent stated that “the petitioner’s procedural default defense, i.e., lack of counsel, and the merits of the appeal require resolution of the same question, namely, whether the petitioner had assistance of counsel at the time that he decided to plead guilty and nolo contendere in four of the six new files.” We agree with the respondent. See generally Henderson v. Commissioner of Correction, 104 Conn. App. 557, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008); Restrepo v. Kelly, 178 F.3d 634 (2d Cir. 1999). Accordingly, we will proceed to the first step of the cause and prejudice analysis.

The first prong of the cause and prejudice analysis requires the petitioner to “demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” (Internal quotation marks omitted.) Solek v. Commissioner of Correction, supra, 107 Conn. App. 478-79 n.2. In other words, the petitioner must demonstrate good cause for his failure to appeal directly from the denial of his motion to withdraw his guilty pleas. As we noted previously, the petitioner attempted to withdraw his guilty pleas at sentencing, in part, because he had represented himself in six of his ten cases.

The petitioner asserts that his “lack of counsel is sufficient cause to excuse any default for failing to [directly] appeal.” The respondent argues that the petitioner had the assistance of counsel within the meaning of the sixth amendment at the time of his pleas on all of his files. Therefore, the respondent contends, the petitioner was not deprived of his right to counsel in any constitutional sense. We agree with the petitioner.

“The United States Supreme Court has summarized the rule as follows: So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard. Murray v. Carrier, [477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)].” (Emphasis added; internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993).

“Examples of cause include a ‘showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable.’ Murray [v. Carrier, supra, 477 U.S. 488]. Ineffective assistance of counsel in violation of the Sixth Amendment is also cause for procedural default.” Jones v. Armstrong, 367 Fed. Appx. 256, 257 (2d Cir.), cert. denied, 560 U.S. 949, 130 S. Ct. 3367, 176 L. Ed. 2d 1263 (2010).

The respondent argues that the petitioner was not denied his right to counsel. It is important to note that the respondent does not argue that the petitioner represented himself but, rather, that the representation that the petitioner received from Ferguson fulfills the requirements under the sixth amendment. First, the respondent argues, the petitioner had retained private counsel, who was paid by the petitioner, filed formal appearances in four of the ten cases and appeared with the petitioner at the plea canvass and sentencing. Second, the respondent asserts that Ferguson provided assistance to the petitioner on the files that the petitioner purportedly was proceeding pro se by informing the petitioner of the state’s offer and providing advice to him on the global offer. Third, the petitioner chose to resolve all of the cases on the basis of advice from Ferguson. Fourth, the respondent argues that the petitioner knowingly and voluntarily entered his pleas on all of his files while Ferguson was present and with his assistance. We are not persuaded.

In its decision, the habeas court found both that the petitioner waived his right to representation and, at the same time, was represented by counsel. The habeas court stated: “[The petitioner] did not waive his right to counsel. He elected to proceed representing himself. Now it’s true one cannot exercise these two rights simultaneously, but at no time, based upon the evidence presented here, did [the petitioner] give up his right to be represented by counsel. . . . [the petitioner] was once again advised of his right to representation and at that point upon the entry of the guilty plea waived his right to representation. He was fully advised as to his right to representation and fully waived it at that point. ... In this matter, [the petitioner], in fact, had partial counsel. Counsel represented him in, and in fact, filed appearances in four of the cases. Indeed, having negotiated a global settlement . . . Ferguson acted as a de facto counsel representing him in the other six matters.” The habeas court therefore contradictorily found that the petitioner never waived his right to counsel, waived his right to counsel, and was, in fact, represented by counsel on all ten cases. We disagree with the habeas court’s conclusions.

The petitioner never received his constitutional right to have counsel appointed to assist him with his criminal cases. Indeed, the record reveals that at virtually every opportunity the petitioner, a public defender who was representing him for bond purposes only, Ferguson and, in one instance, the assistant state’s attorney, informed the trial court that the petitioner remained unrepresented on six of the ten cases. We conclude that the habeas court’s finding of “de facto” representation is without merit. The petitioner was entitled to full and effective assistance of counsel.

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn. App. 236, 242-43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A. 2d 149 (1994). Pretrial negotiations impheating the decision of whether to plead guilty is a critical stage in criminal proceedings; Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir. 1971); and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); see Statewide Grievance Committee v. Whitney, 227 Conn. 829, 842, 633 A.2d 296 (1993).” Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995). For counsel to provide effective assistance, he must adequately investigate each case to determine relevant facts. See footnote 4 of this opinion. This court has held that “[bjecause a defendant often relies heavily on counsel’s independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.” (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn. App. 497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007).

It is clear from our examination of the record that the petitioner, Ferguson, and the assistant state’s attorney understood that the petitioner was unrepresented on six of the ten cases to which he pleaded guilty. The record reveals that Ferguson’s sole involvement with the other six cases was simply to convey an offer from the assistant state’s attorney to the petitioner. Mere conveyance of a plea bargain offer — without an examination and investigation into the underlying facts of each charge — does not constitute effective assistance of counsel. See id., 502. Therefore, there is no merit to the habeas court’s finding that Ferguson provided “de facto” representation to the petitioner. Accordingly, Ferguson did not provide, and was under no obligation to provide, the constitutionally required effective assistance of counsel. Because the lack of effective assistance of counsel is sufficient to meet the “cause” prong, we agree with the petitioner that his “lack of counsel is sufficient cause to excuse any default for failing to [directly] appeal.” Violation of the right to counsel is an external error. “[A]s stated in Coleman [v. Thompson, 501 U.S. 722, 754, 111 S. Ct. 2546, 115 L. Ed. 2d 640, (1991)], a violation of the constitutional right to counsel ‘must’ be considered an external error.” Restrepo v. Kelly, supra, 178 F.3d 641. Therefore, we conclude that the petitioner met his burden of demonstrating cause for not directly appealing the denial of his request to withdraw his guilty pleas.

The habeas court’s finding that the petitioner chose to represent himself on the six cases also is incorrect. We review a habeas court’s determination with respect to whether the petitioner knowingly and voluntarily elected to proceed pro se for abuse of discretion. See State v. D’Antonio, 274 Conn. 658, 709, 877 A.2d 696 (2005). “The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . State v. Wolff, 237 Conn. 633, 654, 678 A.2d 1369 (1996). When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently [forgo] those relinquished benefits. . . . State v. Frye, 224 Conn. 253, 256, 617 A.2d 1382 (1992). The state bears the burden of demonstrating that the defendant knowingly and intelligently waived his right to counsel.” (Internal quotation marks omitted.) State v. Diaz, 274 Conn. 818, 828-29, 878 A.2d 1078 (2005).

“[Practice Book § 44-3] was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney .... Before a trial court may accept a defendant’s waiver of counsel, it must conduct an inquiry in accordance with § [44-3], in order to satisfy itself that the defendant’s decision to waive counsel is knowingly and intelligently made. . . . Because the § [44-3] inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provisions of § [44-3] cannot be construed to require anything more than is constitutionally mandated. . . .

“The nature of the inquiry that must be conducted to substantiate an effective waiver has been explicitly articulated in decisions by various federal courts of appeals. See, e.g., United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995) (court must inform defendant of charges, included offenses and possible range of punishment); United States v. Hurtado, 47 F.3d 577, 583 [(2d Cir.)] (factors determining valid waiver include whether defendant understood that he had choice between proceeding pro se and "with assigned counsel, understood advantages of having trained counsel, and had capacity to make intelligent choice) [cert. denied, 516 U.S. 903, 116 S. Ct. 266, 133 L. Ed. 2d 188 (1995)]; United States v. Van Krieken, 39 F.3d 227, 229 (9th Cir. 1994) (defendant must be aware of nature of charges against him, possible penalties and disadvantages of self-representation); Government of Virgin Islands v. James, 934 F.2d 468, 471 (3d Cir. 1991) (waiver must be made with apprehension of nature of charges, statutory offenses included within them, range of allowable punishments thereunder, possible defenses to charges, circumstances in mitigation thereof, and all other facts essential to broad understanding of whole matter); United States v. Silkwood, 893 F.2d 245, 249 (10th Cir. 1989) (same) [cert. denied, 496 U.S. 908, 110 S. Ct. 2593, 110 L. Ed. 2d 274 (1990)]; United States v. McDowell, 814 F.2d 245, 251 [(6th Cir.)] (model inquiry includes questioning about defendant’s legal background, knowledge of crimes charged, possible punishments, familiarity with Federal Rules of Evidence and Criminal Procedure, procedure for testifying, and advice that defendant would be better served by representation by trained attorney) [cert. denied, 484 U.S. 980, 108 S. Ct. 478, 98 L. Ed. 2d 492 (1987)]. . . .

“The defendant, however, does not possess a constitutional right to a specifically formulated canvass [with respect to this inquiry]. His constitutional right is not violated as long as the court’s canvass, whatever its form, is sufficient to establish that the defendant’s waiver was voluntary and knowing. ... In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing.” (Internal quotation marks omitted.) State v. T.R.D., 286 Conn. 191, 203-204, 942 A.2d 1000 (2008).

The trial court never canvassed the petitioner pursuant to Practice Book § 44-3. The habeas court found that the petitioner waived his right to counsel “at the point upon the entry of the guilty plea.” The respondent argues that the petitioner was canvassed according to Practice Book § 39-19, and that suffices as a canvass under § 44-3. Although §§ 39-19 and 44-3 overlap in some content, one cannot suffice for the other. Both sections include clear mandatory advisories from the judicial authority to the defendant concerning his or her right to the assistance of counsel and the range of permissible punishments. Each section, however, includes very clear subsections that are unique to each section. Section 44-3 (4), for example, which requires that the defendant “[h]as been made aware of the dangers and disadvantages of self-representation,” has no comparable provision in § 39-19. Furthermore, as we noted previously, the petitioner had the right to the assistance of counsel at all critical stages of the proceedings. See Strickland v. Washington, supra, 466 U.S. 686. The habeas court’s finding that the petitioner waived his right to counsel at the last possible moment — “at the entry of the guilty plea” — is prima facie insufficient. At no point during the proceedings did the trial court make a thorough inquiry to satisfy itself that the petitioner was aware of the rights that he would give up by choosing to proceed by representing himself, as is required by § 44-3. Specifically, the trial court never inquired as to whether the petitioner had been clearly advised that he had the right to the assignment of counsel if so entitled; whether the petitioner possessed the intelligence and capacity to appreciate the consequences of the decision to represent himself; whether the petitioner comprehended the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and whether he had been made aware of the dangers and disadvantages of self-representation. Because the petitioner was never canvassed according to § 44-3, he did not knowingly and intelligently waive his right to counsel. See State v. T.R.D., supra, 286 Conn. 198-206. We therefore conclude that the habeas court’s finding that the petitioner waived his right to counsel was an abuse of discretion.

As for the second prong of the analysis, actual prejudice is presumed when the petitioner’s right to counsel is violated. “ ‘The right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.’ State v. Varricchio, 10 Conn. App. 265, 270, 522 A.2d 843 (1987); see also United States v. Decoster, 624 F.2d 196, 201 (D.C. Cir. 1979).” State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992). A violation of the right to counsel constitutes a structural error; as such, the petitioner is not required to demonstrate prejudice. See generally United States v. Gonzales-Lopez, 548 U.S. 140, 150, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006); United States v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005). Accordingly, the petitioner’s claim is not barred by the doctrine of procedural default. Furthermore, we conclude that the petitioner was denied his constitutional right to the assistance of counsel.

Because we conclude that the petitioner’s right to counsel was violated, we will now consider the appropriate remedy. The petitioner and the respondent agree that the proper remedy is for the entire plea agreement to be vacated. We agree that this is the proper remedy. See State v. Alicea, 41 Conn. App. 47, 60 n.14, 674 A.2d 468 (1996) (“[bjecause the defendant’s plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 was entered as part of a single plea bargain disposing of three different cases with an assortment of charges, our conclusion here necessarily unravels the entire plea bargain”); State v. Coleman, 48 Conn. App. 260, 268 n.10, 709 A.2d 590 (1998) (withdrawal of guilty pleas that were entered as part of plea bargain necessarily unravels entire plea bargain), aff'd, 251 Conn. 249, 741 A.2d. 1 (1999), cert. denied, 529 U.S. 1061, 120 S. Ct. 1570, 146 L. Ed. 2d. 473 (2000).

The judgment is reversed and the case is remanded to the habeas court with direction to render judgment granting the petition for a writ of habeas corpus and vacating all of the petitioner’s guilty pleas, and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The charges included, among others, criminal mischief in the third degree, evading responsibility, breach of the peace, threatening in the second degree, operating a motor vehicle without a license and reckless driving.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       The charge was criminal violation of a restraining order in violation of General Statutes § 53a-223b.

       The facts of this case demonstrate the importance of investigating the charges. In one of the cases in which the petitioner was not represented by counsel, CR-07-0359649, the petitioner pleaded guilty to a charge that had no basis in fact. The petitioner entered a plea of guilty to a class D felony, criminal violation of a restraining order, when there was in fact, no restraining order in effect. This was the most serious charge that the petitioner faced out of the ten cases, and for which he received a controlling five year sentence.

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       See footnote 2 of this opinion.

       See footnote 5 of this opinion.