text:
    STATE OF CONNECTICUT v. WESLEY E. BRANDT
    (AC 30760)
    Beach, Alvord and Pellegrino, Js.
    Argued October 23, 2009
    officially released January 5, 2010

      William F. Hickey III, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Don E. Therkildsen, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

To satisfy the second offender requirements established by the statute proscribing driving while intoxicated, the conduct forming the basis for the second offense must occur after the conviction for the first offense. Because the trial court held to the contrary in ruling on a motion to vacate pleas and sentences, we reverse in part the court’s judgments. The defendant, Wesley E. Brandt, appeals from the judgments of the trial court convicting him of driving under the influence of intoxicating liquor or drugs and sentencing him, in accordance with his guilty pleas, as a repeat offender in connection with two separate incidents. The defendant claims that the court improperly denied his motion to vacate his pleas of guilty to a part B information charging him with being a repeat offender in connection with both incidents pursuant to General Statutes § 14-227a (g) and to vacate his resulting sentences. The state agrees with the defendant that the court should have granted his motion to vacate his pleas and sentences regarding the part B information.

The following undisputed facts and procedural history are relevant to the defendant’s appeal. On May 14, 2007, the defendant was arrested in Waterbury and charged with one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. This case was docketed at geographical area number four in Waterbury (Waterbury case). The court subsequently granted the defendant’s application to enter the pretrial alcohol education program. Before the Waterbury case was dismissed, however, the defendant was arrested in North Haven on June 2, 2008, and charged with one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. This case was docketed at geographical area number seven in Meriden (Meriden case). Two days later, on June 4, 2008, the defendant was arrested in Plainville and charged with one count of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. This case was docketed at geographical area number seventeen in Bristol (Bristol case). As a result of the latter two arrests, the defendant’s participation in the pretrial alcohol education program was revoked.

In October, 2008, counsel for the defendant and the prosecutor reported to the court in Waterbury that the defendant had three driving under the influence cases pending and that the parties were seeking to consolidate them for disposition. In November, 2008, counsel reported to the court that they had reached a plea agreement and sought the court’s approval. That agreement provided, inter alia, that the defendant would be sentenced as a first offender twice and as a second offender once. Sometime shortly thereafter, counsel reported to the court that the prosecutor at geographical area number seven in Meriden opposed the transfer of that case to Waterbury unless the defendant first entered a guilty plea in the Meriden case. On December 15, 2008, the defendant entered a guilty plea in the Meriden case and that matter was transferred to Waterbury for sentencing. The Bristol case was transferred to Waterbury prior to plea.

On December 22, 2008, counsel informed the court that they had reached an amended plea agreement, whereby the defendant would be treated as a first offender in the case transferred from the Meriden court and as a second offender twice on the two other cases. On January 12, 2009, the defendant entered guilty pleas in the Waterbury and Bristol cases to two counts of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (2) and to two part B charges of being a second offender pursuant to § 14-227a (g). The court thereafter imposed a total effective sentence on all three files of eighteen months imprisonment, execution suspended after 122 days, followed by two years probation and a $2500 fine.

On January 16, 2009, the state made an oral motion to vacate the defendant’s pleas and sentences. The court directed the state to file a written motion. The state and the defendant agreed that the defendant would file a written motion. The defendant filed a motion to vacate the pleas and sentences. Following a hearing, the court denied the motion. The court reasoned that because the defendant, on December 15, 2008, pleaded guilty in the Meriden case to a violation of § 14-227a, he was subject to the enhanced penalty as a second offender when, on January 12, 2009, he simultaneously pleaded guilty in the Waterbury and Bristol cases. This appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to vacate because his pleas of guilty to the part B charges that accused him of being a repeat offender pursuant to § 14-227a (g) and his resulting sentences were improperly and illegally entered. The defendant’s claim concerns his pleas and resulting sentences regarding the part B information charging him, under § 14-227a (g), in the Waterbury and Bristol cases with being a second offender of § 14-227a. He argues that he cannot be subjected to the enhanced penalty in the Waterbury and Bristol cases as a second offender of § 14-227a, as enunciated in § 14-227a (g), because his conviction in the Meriden case occurred after the conduct underlying the violations of § 14-227a in the Waterbury and Bristol cases. He argues that he should have been treated as a first offender in all three cases. We agree.

The standard of review for a court’s denial of a motion to vacate is limited to a determination of whether the trial court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). Because, however, the defendant’s claim requires an examination into the meaning of § 14-227a (g), we are guided by our well settled rules of statutory construction with respect to our analysis of that section and conduct plenary review of this question of law. See State v. Wilcox, 105 Conn. App. 24, 27, 936 A.2d 295 (2007), cert. denied, 286 Conn. 909, 944 A.2d 981 (2008).

Section 14-227a (g), a sentence enhancement provision, provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars or more than one thousand dollars, and (B) be (i) imprisoned not more than six months ... (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years . . . and (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars, (B) be imprisoned not more than three years . . . .” (Emphasis added.) The plain language of this statute does not unambiguously resolve the issue before us: it is not immediately clear from the italicized language whether a second conviction must follow the prior conviction or whether a second violation must follow the prior conviction.

State v. Burns, 236 Conn. 18, 670 A.2d 851 (1996), which interprets General Statutes (Rev. to 1993) § 14-227a (h), the predecessor to § 14-227a (g), however, is controlling. The certified issue in that case was: “Under General Statutes § 14-227a (h) (3), is the five year period measured from the date of the prior conviction to the date of the current conviction, or from the date of the prior conviction to the date of the current violation?” (Internal quotation marks omitted. ) State v. Burns, supra, 21 n.4. The court concluded that “the legislature’s purpose in undertaking its enactment requires the conclusion that the relevant period runs to a third violation.” Id., 24-25. The court reasoned that “[bjecause the legislature’s overall goal in enacting § 14-227a (h) (3) was unambiguous, we are persuaded that the phrase ‘for conviction of a third violation within five years after a prior conviction for the same offense . . .’ can reasonably be construed only as imposing enhanced penalties on those whose third violation of § 14-227a (a) occurs within the five year period, regardless of when that conviction occurs. In enacting § 14-227a (h) (3), the legislature sought to deter dangerous conduct, not to influence the timing of a subsequent conviction arising from such conduct.” Id., 26.

Therefore, according to Bums, for a defendant to be subject to the enhanced penalties for subsequent offenders under § 14-227a, he first must have been convicted under § 14-227a and later must have violated the statute. The defendant in this case had not been convicted as a first offender in the Meriden case at the time of the commission of the second and third violations in the Waterbury and Bristol cases. In fact, the defendant was sentenced in all three cases on January 12, 2009, and accordingly, the violations in the Bristol and Waterbury cases occurred prior to the defendant’s having been sentenced in the Meriden case. Accordingly, the persistent offender provision of § 14-227a (g) is not applicable. The court erroneously denied the defendant’s motion to vacate his pleas to the part B charges that accused him of being a repeat offender pursuant to § 14-227a (g) and to vacate his resulting enhanced sentences.

The judgments are reversed only as to the denial of the motion to vacate as to the two counts of the part B information and the case is remanded for further proceedings according to law. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       As noted previously, the defendant already had pleaded guilty in the Meriden case.

       “The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).

       General Statutes (Rev. to 1993) § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within five years after a prior conviction for the same offense,” be subject to certain penalties.

       The Waterbury violation occurred in May, 2007, more than one year prior to the violation in the Meriden case, which occurred in June, 2008.

       “[T]o prove a conviction, it is necessary to show it by the record of a valid, subsisting final judgment.” (Internal quotation marks omitted.) State v. Henton, 50 Conn. App. 521, 532, 720 A.2d 517, cert. denied, 247 Conn. 945,723 A.2d 322 (1998). “In a criminal proceeding, there is no final judgment until the imposition of a sentence.” (Internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617, 954 A.2d 806 (2008).
      In State v. Ledbetter, 240 Conn. 317, 692 A.2d 713 (1997), which is cited by both the defendant and the state in their respective briefs, our Supreme Court discussed General Statutes (Rev. to 1993) § 53a-40 (d), now (f), a sister penalty enhancement statute. General Statutes (Rev. to 1993) § 53a-40 (d) provided, as does (f) today: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony, and (2) has been, at separate times prior to the commission of the present felony, twice convicted of a felony other than a class D felony.” The court opined that “in order to advance the legislative intent that [General Statutes (Rev. to 1993)] § 53a-40 (d) be a solution to the problem of recidivism, its enhanced penalty appropriately applies only to those offenders who, despite having been given an opportunity to reform through a sequence of conviction and punishment for each prior offense, nevertheless continue a life of crime.” State v. Ledbetter, supra, 328. At the time of the violations in the Waterbury and Bristol cases, the defendant had not been convicted in the Meriden case.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL OVECHKA
    (AC 26077)
    Bishop, DiPentima and Hennessy, Js.

      Argued November 10, 2009
    officially released January 5, 2010

      Ruth Daniella Weissman, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

This case is before us on remand from our Supreme Court. The defendant, Paul Ovechka, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). In State v. Ovechka, 292 Conn. 533, 549, 975 A.2d 1 (2009), the Supreme Court reversed this court’s decision in State v. Ovechka, 99 Conn. App. 679, 915 A.2d 926 (2007), and remanded the case with direction to consider the remaining claims of the defendant on appeal. The defendant claims that (1) the trial court improperly instructed the jury, (2) the evidence was insufficient to show that the state had disproved all available justification defenses beyond a reasonable doubt, (3) the court improperly excluded certain evidence from the jury room and (4) he was deprived of a fair trial due to prosecutorial impropriety. We affirm the judgment of the trial court.

This court’s earlier opinion in this matter sets forth the following facts and procedural history. “The defendant and Michael Rynich, a Bridgeport police officer, were next door neighbors. Three separate incidents occurred between the neighbors resulting in charges being brought against the defendant. These incidents occurred on December 26, 2002, and June 10 and July 2,2003. The July 2,2003 incident, in which the defendant sprayed Rynich in the eyes with either pepper spray or weed killer after Rynich had entered the defendant’s yard, is the incident we are concerned with in this appeal.” Id., 681.

With respect to the July 2,2003 incident, “[t]he defendant conceded that he was on his lawn spraying weed killer on weeds, within the fence line of his property, when he saw Rynich leave his house and get into his vehicle. The juiy also heard testimony from Rynich. Rynich testified that when he stopped his vehicle at the stop sign near the defendant’s property, he saw the defendant’s wife. Because Rynich wanted to talk with the defendant’s wife about the issues that had occurred between the defendant and himself, Rynich drove his car to the side of the road in front of the defendant’s house and got out of his vehicle. Rynich walked onto the defendant’s property. The defendant and Rynich exchanged insults. Rynich yelled to the defendant’s wife about the defendant being crazy. The defendant sprayed Rynich in the eyes and face. The defendant retreated onto his porch and eventually into his house. Rynich continued to follow the defendant up to the defendant’s front door, even after being sprayed in the face and eyes. The defendant sprayed Rynich for the last time when the defendant was inside his house. The defendant claims [that] he sprayed pepper spray, which he had in his pocket. The state claims [that] the defendant may have sprayed weed killer, which he had in his hands. The defendant testified that he intended to spray Rynich and that he did in fact spray Rynich. Rynich testified to severe pain and burning in the chest, neck, face and eyes, along with temporary blindness.” Id., 683-84.

“On July 23, 2003, the defendant was charged in an information with assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1), both in connection with [the] incident on December 26, 2002; public indecency in violation of General Statutes § 53a-186 (a) (2) in connection with an incident on June 10, 2003; and assault in the second degree in violation of § 53a-60 (a) (2) in connection with an incident on July 2,2003. On September 10, 2003, following a jury trial, the defendant was found not guilty of assault in the third degree, breach of the peace in the second degree and public indecency, and guilty of assault in the second degree. On February 18, 2004, the court denied the defendant’s written motion for both a judgment of acquittal and a new trial and sentenced the defendant to a term of five years imprisonment, execution suspended after twenty-eight months, with five years of probation. On December 10, 2004, the defendant appealed from the judgment of conviction.” Id., 681-82.

I

The defendant asserts three claims of instructional error. The defendant claims that (1) the court’s instructions on assault in the second degree in violation of § 53a-60 (a) (2) were inadequate, (2) he was deprived of his constitutional right to present a defense because no instructions were given on defense of property, defense of premises or defense of dwelling and (3) the court’s instructions on self-defense failed to ensure that the state was required to disprove the defense beyond a reasonable doubt.

Because the defendant did not raise these claims of instructional error before the trial court, they are unpreserved, and, consequently, he requests review under State v. Golding, 213 Conn. 233, 567 A. 2d 823 (1989). Golding holds that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. With these principles in mind, we address each of the defendant’s instructional claims in turn.

A

The defendant first claims that the court improperly failed to instruct the jury on the definition of “serious physical injury” for assault in the second degree. The court instructed the jury on the “dangerous instrument” element of assault in the second degree substantially in accordance with the definition set forth in General Statutes § 53a-3 (7), as follows: “A dangerous instrument is any instrument, article, substance — or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. It includes in addition to the more obvious articles, motor vehicles, aircraft, mechanically propelled vessels within the concept of a dangerous instrument; the focus is on the deadly capability of the instrument under the conditions of a particular case. Thus, it is necessarily under this definition that under the circumstances in which the instrument was used or attempted or threatened to be used, it was capable of causing death or serious physical injury.” The court did not define “serious physical injury” as used in the definition of “dangerous instrument” but did define “physical injury” as “impairment of physical condition or pain.” The defendant neither requested a definition of “serious physical injury” in his request to charge nor excepted to the adequacy of the court’s charge.

This court has held that “[sjerious physical injury is not itself ... an essential element of the crime charged. It is but a definitional component of an essential element. A court’s failure to read the statutory definition of a phrase which itself appears as part of the definition of an essential element is not an error of constitutional proportion.” (Internal quotation marks omitted.) State v. Johnston, 17 Conn. App. 226, 228, 551 A.2d 1264 (1988), cert. denied, 210 Conn. 810, 556 A.2d 609 (1989); State v. Huff, 10 Conn. App. 330, 335, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Accordingly, we conclude that the defendant’s claim fails to meet the second prong of Golding.

B

The defendant next claims that the court improperly failed to instruct the jury, sua sponte, on defense of property, premises or dwelling under General Statutes §§ 53a-20 and 53a-21. We disagree.

At trial, the defendant asserted the claim of self-defense. The defendant requested that the court instruct the jury as to self-defense, and the court gave such an instruction. The defendant did not, however, request a charge related to the defense of property, premises or dwelling, and the court did not give such a charge on those issues.

Although the right to establish a defense is a “ ‘fundamental element of due process of law’ State v. Ebron, 292 Conn. 656, 685, 975 A.2d 17 (2009); our Supreme Court has concluded that “trial courts do not have a duty to charge the jury, sua sponte, on defenses, affirmative or nonaffirmative in nature, that are not requested by the defendant.” Id., 691-92. Accordingly, the defendant’s claim fails.

C

The defendant also claims that the court’s instructions on self-defense failed to ensure that the state was required to disprove the defense beyond a reasonable doubt. Specifically, the defendant contends that the court improperly failed to define “provocation” or “initial aggressor.” The defendant concedes, however, that he did not request such instructions, that the court, in essence, gave the self-defense charge he requested and that the charge, as given, mirrors the self-defense charge set forth in D. Borden & L. Orland, 5A Connecticut Practice Series: Criminal Jury Instructions (3d Ed. 2001) § 6.1.

Our Supreme Court has recently held that where there is an “indication that the defendant actively induced the trial court to give the [improper] instruction that he now challenges on appeal”; State v. Ebron, supra, 292 Conn. 682; the defendant’s claim is waived and, thus, not reviewable under Golding. Because the defendant filed a request to charge, and the court acceded to the defendant’s request, the defendant cannot now complain that he was deprived of a fair trial on the ground that the court should have instructed the jury otherwise.

II

The defendant next claims that the evidence was insufficient to show that the state had disproved self-defense beyond a reasonable doubt. We are unpersuaded.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ” (Citation omitted; internal quotation marks omitted.) State v. Jones, 289 Conn. 742, 754-55, 961 A.2d 322 (2008).

General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

Here, the jury could have found that the defendant repeatedly sprayed Rynich with either weed killer or pepper spray in the absence of any physical force on the part of Rynich, and, the jury reasonably could have found that Rynich did not pose a threat to the defendant. In fact, the jury heard evidence that the defendant sprayed Rynich once from inside his own home. On the basis of the foregoing, the jury reasonably could have found that the defendant was not acting in self-defense when he sprayed Rynich.

III

The defendant next claims that the court improperly excluded certain evidence from the jury room. Specifically, the defendant claims that the court improperly excluded from the jury room the atomizer that the defendant had been using to spray his plants, the Spectracide, a can of pepper spray and the shirt that Rynich had been wearing when he was sprayed. At trial, both the state and defense counsel agreed with the court’s decision not to send these items into the jury room for deliberations because they were potentially caustic. Because this claim relates to the court’s exercise of discretion regarding evidentiary matters and is not constitutional in nature, it fails under the second prong of Golding. See State v. Blango, 103 Conn. App. 100, 117, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007). Consequently, we decline to review this claim.

IV

The defendant finally claims that he was deprived of a fair trial due to prosecutorial impropriety. The defendant claims that during closing argument, the prosecutor improperly (1) asked the jurors to put themselves in the place of Rynich, (2) vouched for the veracity of Rynich and (3) “manufactured a scenario to bolster [Rynich’s] allegation that the weed killer dispenser might have been used when [the defendant] had given a reasonable explanation for the weed killer dispenser’s location.” We are unpersuaded.

Although the defendant did not object at trial to any of the state’s comments that he now claims were improper, “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). ... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 809, 981 A.2d 1030 (2009).

“Because the claimed prosecutorial [improprieties] occurred during closing arguments, we advance the following legal principles. [PJrosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 64-65, 932 A.2d 416 (2007). With these principles in mind, we now turn to the defendant’s claims.

A

The defendant claims that one of the prosecutor’s remarks violated the prohibition against improper “golden rule” arguments. “[A] golden rule argument is one that urges jurors to put themselves in a particular party’s place ... or into a particular party’s shoes. . . . Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. . . . They have also been equated to a request for sympathy.” (Internal quotation marks omitted.) State v. Long, 293 Conn. 31, 53-54, 975 A.2d 660 (2009). “The danger of these types of arguments lies in their [tendency] to pressure the jury to decide the issue of guilt or innocence on considerations apart from the evidence of the defendant’s culpability.” (Internal quotation marks omitted.) Id., 54. “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) Id.

Here, during closing argument, when the prosecutor was discussing Rynich’s medical records, he said to the jury: “Now, put yourself in a situation of someone who has just been sprayed with chemicals.” The prosecutor then went on to describe what happened to Rynich, arguing that when you are hurt, and in need of medical assistance, you are likely to tell the truth to the medical professionals who are treating you. In making this comment, it is apparent that the prosecutor was not trying to appeal to the emotions of the jurors but, rather, was asking them to draw inferences from the evidence that had been presented regarding Rynich’s actions and how a reasonable person would act under the specified circumstances. Because the prosecutor was not asking the jurors to put themselves in Rynich’s place in order to gamer sympathy or arouse the jurors’ emotions, we conclude that the prosecutor’s statements did not violate the prohibition against improper golden rule arguments.

B

The defendant also claims that the prosecutor improperly vouched for the veracity of Rynich and improperly used a religious reference. We disagree.

During closing argument, in discussing Rynich’s testimony and his motive to tell the tmth, the prosecutor argued: “[Y]ou are worried about your vision, are you going to tell them the tmth or are you going to lie? And your lives are on the line. ... He told it like it was . . . .” He also stated: “The two people in the world you don’t lie to [are] your priest or your doctor .... When you need help, when you are really down and out, you tell the tmth. Officer Rynich told the tmth.”

The Supreme Court has stated that “[a] prosecutor may properly comment on the credibility of a witness where . . . the comment reflects reasonable inferences from the evidence adduced at trial.” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 438, 902 A.2d 636 (2006). It is also well settled that a prosecutor may argue that a witness has no motive to he. State v. Long, supra, 293 Conn. 45.

Here, the prosecutor was emphasizing the importance of the truth in seeking medical treatment and that Rynich was not likely thinking about the police investigation at the time he was talking to medical personnel but was, instead, focused on his injuries. The prosecutor was asking the jurors to draw from his argument the inference that Rynich had no motive to lie.

Additionally, the prosecutor’s general and singular reference to a priest was not the type of inflammatory religious reference that has been deemed improper by our courts. See, e.g., State v. Camacho, 282 Conn. 328, 381, 924 A.2d 99 (references to Cain and Abel and choice between good and evil), cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007); cf. State v. Ceballos, 266 Conn. 364, 382-93, 832 A.2d 14 (2003) (comment regarding divine punishment). Accordingly, we cannot conclude that the prosecutor’s comments in this regard were improper.

C

The defendant finally claims that the prosecutor improperly “manufactured a scenario to bolster [Ryn-ich’s] allegation that the weed killer dispenser might have been used when [the defendant] had given a reasonable explanation of the weed killer dispenser’s location.” Here, the prosecutor’s argument was in response to the defendant’s testimony that he had dropped the weed killer dispenser earlier in his encounter with Ryn-ich and then sprayed Rynich with pepper spray but then later, after Rynich had left, picked the weed killer dispenser up from where he had dropped it and brought it to the front stoop. The prosecutor argued to the jury that the defendant sprayed Rynich with weed killer on the basis of the dispenser’s having later been found near the door where the defendant had sprayed Rynich after retreating to his house. The defendant argues that the prosecutor’s argument may have led the jury to believe that the prosecutor had some independent knowledge regarding how the weed killer dispenser ended up on the stoop because if the defendant had been spraying Rynich until Rynich retreated, the dispenser would have been dropped inside, not outside, the breezeway.

“[I]t is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences that jurors might draw therefrom .... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state’s favor, on the one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 36, 917 A.2d 978 (2007). Because the prosecutor was asking the jury to draw an inference that was based on the evidence adduced at trial, and the prosecutor did not suggest that he had independent knowledge of how the dispenser ended up on the stoop, the prosecutor’s comment was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       In the alternative, the defendant seeks review under the plain error doctrine. See Practice Book § 60-5. The plain error doctrine “is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.
      . . . Plain error is a doctrine that should be invoked sparingly. . . . [I]nvo-cation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). The defendant has not demonstrated that the claimed errors are so clear and so harmful that manifest injustice will result if the judgment is not reversed. Nor has he shown that his claims affect the fairness and integrity of and public confidence in judicial proceedings. We, therefore, conclude that this is not an occasion requiring the reversal of the trial court’s judgment under the plain error doctrine.

       In regard to self-defense, the court instructed the jury as follows: “Self-defense is a legal defense to which the use of force would otherwise be criminal. This does not mean, however, the defendant must prove the defense of self-defense. The burden of guilty beyond a reasonable doubt remains on the state, which means that the state must prove — must disprove beyond a reasonable doubt the defense of self-defense.
      “Now, aperson is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the imminent use of physical force, and he may use such a degree of force in which he reasonably believes is necessary for that purpose. However, a person is not justified in using physical force in self-defense when, with intent to cause physical injury to another person, he provokes the use of physical force by that person. Nor is the person justified in using physical force in self-defense when he is the initial aggressor.
      “First of all, the defendant must actually believe that he is faced with imminent use of physical force upon him. He must in fact have such a belief. Second, that belief must be reasonable. A reasonable belief is one that a reasonably prudent person viewing the situation from the defendant’s perspective and in the same circumstances that the defendant was in would have. It is not an irrational belief, nor is it a belief that is not justified by ... all the circumstances that exist then and there. Nor is it necessarily the belief the defendant in fact had. It is a belief that was reasonable from the perspective of a reasonable person in the defendant’s circumstances.
      “Third, acting with that reasonable belief, the amount and degree of force that he uses must be reasonable. It must be that the degree of force that a reasonable person in the same circumstances viewed from the perspective of the defendant would use and no more. If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to the defense of self-defense.
      “Finally, a person who is not justified in using physical force, if intending to cause physical injury to another person, he provokes the use of physical

        force by that other person. Whether the defendant had the requisite belief or the defendant’s belief was reasonable, whether the degree of force he used was unreasonable and whether he provoked the use of physical force are questions for you to determine from the evidence.”

       The defendant also claims that the state failed to prove that the defendant was not acting in defense of premises, property or dwelling. Because the defendant did not raise this defense at trial, however, there 'was no burden on the state to disprove it.

       The prosecutor stated: “Now, put yourself in a situation of someone who has just been sprayed with chemicals. I’m not exactly sure what it was, it could have been both. You can’t even see, your eyes are burning, your face is burning. You get home and an ambulance is called. You are taken to St. Vincent’s Hospital [in Bridgeport], you see a doctor. They write things down in the records. Initial blood pressure, 192 over 121. They circled that. . . . The records say, sprayed by pesticide and pepper spray during altercation, skin to arms and neck. When something like this happens to an individual and you are sprayed, you are worried about your eyesight, you want to be accurate because your eyes, your future job, your life is on the line if you are blind. Okay. You are in the hospital. If you knew you were sprayed by just pepper spray, you’d say it. You wouldn’t say, I think it was insecticide and pepper spray because your vision is on the line. You’re hurt. The comments that Officer Rynich made under stress at the hospital are very consistent with how he testified.”

       To the extent that the defendant makes other vague and cursory claims of prosecutorial impropriety, because he does not explain the factual basis, nor does he provide any legal support, for such claimed improprieties, we decline to address them. See Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 124 n.20, 977 A.2d 127 (2009) (“ ‘[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief ”).


author: PER CURIAM.

text:
    AUNRAY STANFORD v. COMMISSIONER OF CORRECTION
    (AC 29777)
    DiPentima, Beach and Stoughton, Js.
    Argued November 18, 2009
    officially released January 5, 2010

      Michael Zariphes, special public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Courtney Gates-Graceson, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Aunray Stanford, pleaded guilty under the well known Alford doctrine to charges of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). He appeals following the denial by the habeas court of his petition for certification to appeal from its judgment denying his second amended petition for a writ of habeas corpus. He claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly failed to conclude that his trial counsel had rendered ineffective assistance in several respects.

We have carefully reviewed the record and briefs, and, after considering the oral arguments of counsel, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal. The petitioner has not shown that the issues involved in his appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Tabone, 292 Conn. 417, 421 n.7, 973 A.2d 74 (2009).


author: ALVORD, J.

text:
    DANIEL DORCE v. COMMISSIONER OF CORRECTION
    (AC 29789)
    Bishop, Alvord and Foti, Js.

      Submitted on briefs November 17, 2009
    officially released January 5, 2010

      Alan E. Dillon, special public defender, filed a brief for the appellant (petitioner).

      Scott J. Murphy, state’s attorney, Brenda Elans, deputy assistant state’s attorney, and Laurie N. Feldman, special deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Daniel Dorce, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus that was based on his claim of ineffective assistance of counsel. We dismiss the petitioner’s appeal.

In September, 1999, the petitioner pleaded guilty to conspiracy to commit murder and received a sentence of ten years incarceration, suspended after twenty-seven months, followed by four years of probation. On May 14, 2002, dining the petitioner’s probationary period, he was arrested and charged with attempt to sell narcotics, attempt to sell narcotics within 1500 feet of a school or housing project, possession of narcotics, possession of narcotics with intent to sell and possession of narcotics with intent to sell within 1500 feet of a school or housing project. On October 28, 2002, the petitioner was arraigned on a violation of probation charge. On April 14, 2004, the state filed a part B information, dated January 16, 2003, charging the petitioner as a persistent narcotics offender on the basis of his prior 1994 conviction for possession of narcotics with intent to sell.

On April 14, 2004, the petitioner, represented by Attorney Gary A. Mastronardi, pleaded guilty under an open plea to a substitute one count information charging him with possession of narcotics with intent to sell as a persistent narcotics offender and to violation of probation. The court, Alexander, J., continued the sentencing for three months. On July 27, 2004, the petitioner was sentenced to eighteen years incarceration followed by three years special parole on the narcotics charge as a persistent offender and, concurrently, to the remaining term of seven years and nine months on the violation of probation charge, for an effective sentence of eighteen years to serve with three years special parole.

In a three count amended petition for a writ of habeas corpus, the petitioner claimed that Mastronardi rendered ineffective assistance by failing to proceed with an evidentiary hearing on the petitioner’s motion to suppress evidence that had been seized from his person when he was arrested and by failing to advise him adequately of the maximum exposure that he faced in pleading guilty to a persistent narcotics offender charge under an open plea. At the conclusion of the habeas trial on January 18, 2008, the court denied the petition in an oral decision.

The court concluded that, contrary to the petitioner’s claim, the police had sufficient probable cause to arrest the petitioner on May 14, 2002, that Mastronardi’s performance was not deficient in failing to pursue the motion to suppress because there was a significant risk of losing and that the petitioner’s position would have been worse if the motion had been unsuccessfully litigated. With respect to the claim that Mastronardi had failed to advise the petitioner of the potential maximum sentence involved, the court stated: “I credit the testimony of . . . Mastronardi that the petitioner knew exactly what the consequences were in his case.” The court subsequently denied the petition for certification to appeal from the judgment denying the habeas petition. This appeal followed.

We first consider the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. The standard of review is well settled. “We examine the petitioner’s underlying claim ... to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn. App. 432, 435-36, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn. App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

“For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. ... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717, 722-23, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).

We first examine the petitioner’s claim that the court improperly concluded that Mastronardi’s failure to pursue the motion to suppress did not constitute ineffective assistance. The petitioner argues that the motion would have been successful because there was no probable cause for the police to detain and to search him on May 14, 2002. We agree with the court’s determination that Mastronardi’s strategic decision not to pursue the motion to suppress did not constitute deficient performance.

The court’s factual findings and conclusions in its oral decision were supported fully by the testimony and exhibits presented at trial. Jose Ortiz had been arrested by warrant as part of a sting operation and agreed to help the police pursue an individual known as Shadow, the petitioner’s street name, in exchange for consideration in his own case. The police knew the petitioner’s background, his involvement in the drug trade and his history of prior arrests and convictions. They also knew the petitioner’s cellular telephone number. Ortiz, in the presence of officers at the police department, telephoned the petitioner and arranged to meet him in the area of North and Sexton Streets to purchase drugs. Shortly thereafter, the petitioner called back Ortiz at the police department, and the petitioner’s cellular telephone number was prominently displayed on the caller identification feature. At the arranged time of the drug transaction, other police officers, who knew and recognized the petitioner, saw him in the designated area. The petitioner was arrested, and one of the officers found eighteen bags of heroin on his person.

From that testimony, the court concluded that the police had ample probable cause for the arrest and credited Mastronardi’s assessment that he probably would not have prevailed if he had pursued the motion to suppress. The court also credited his testimony that the state’s offer would have increased if he had unsuccessfully litigated the motion. Accordingly, we conclude that the petitioner did not meet his burden of demonstrating that Mastronardi’s performance was deficient.

With respect to the petitioner’s claim that Mastro-nardi failed to advise him adequately of the maximum exposure that he faced in pleading guilty to a persistent narcotics offender charge under an open plea, the court explicitly stated that it found the testimony of Mastro-nardi to be credible. Mastronardi testified that he repeatedly had discussed the part B information with the petitioner and that the petitioner knew that he faced enhanced penalties by pleading guilty. “[I]t is axiomatic that [w]here there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses.” (Internal quotation marks omitted.) State v. Janulawicz, 95 Conn. App. 569, 576, 897 A.2d 689 (2006).

The court also noted that Judge Alexander likewise informed the petitioner of the enhanced penalties on the part B information when he pleaded guilty on April 14, 2004. The petitioner indicated that he understood his exposure and expressed no surprise at the potential maximum sentence. Further, the matter was continued three months for sentencing, and, during that lengthy continuance, the petitioner did not move to withdraw his plea on the ground that he had not understood the consequences of that plea. We therefore conclude that the court properly determined that the petitioner failed to meet his burden of proof with respect to that count of his amended petition.

Upon our examination of the record and briefs, as well as the court’s resolution of the issues presented in the habeas petition, we are not persuaded that the court abused its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

       Under an open plea, the petitioner’s sentence was to be determined by the court rather than according to a prior negotiated sentence or plea agreement.

       The petitioner also alleged that Mastronardi provided ineffective assistance by failing to engage in meaningful plea negotiations with the state. The habeas court, rejected that claim, and the petitioner has not challenged the court’s judgment with respect to that count of the amended petition.


text:
    CATHERINE FARRELL ET AL. v. TWENTY-FIRST CENTURY INSURANCE COMPANY
    (AC 30236)
    Bishop, Alvord and Dupont, Js.

      Argued October 16, 2009
    officially released January 12, 2010

      Campbell D. Barrett, with whom were Jon T. Kukucka and, on the brief, Felicia C. Hunt, certified legal intern, for the appellants (plaintiffs).

      Andrew M. McPherson, with whom, on the brief, was Dennis M. Laccavole, for the appellee (defendant).
   Opinion

ALVORD, J.

In this action to compel arbitration, the plaintiffs, Catherine Farrell and Olivia Farrell, appeal from the summary judgment rendered in favor of the defendant, Twenty-First Century Insurance Company. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs’ appeal. John Farrell, Catherine Farrell, Olivia Farrell and Colm Farrell were allegedly involved in a car accident with the defendant’s insured on December 20, 2000. On February 25, 2002, the Far-rells filed an action against the defendant, claiming personal injury. During a pretrial conference held in February, 2005, the parties agreed to settle the claims of John Farrell and Colm Farrell and agreed, in principle, to arbitrate the claims of Catherine Farrell and Olivia Farrell. In February, 2008, the plaintiffs filed a complaint seeking a court order to compel arbitration. The defendant filed a motion for summary judgment claiming that no written agreement to arbitrate existed between the parties. The plaintiffs opposed the defendant’s motion and, in opposition, submitted fourteen letters exchanged between the plaintiffs’ trial attorney and the defendant’s attorney from January, 2005, to February, 2007, as well as an affidavit of the plaintiffs’ trial attorney. They claimed that, cumulatively, the letters constituted an enforceable agreement to arbitrate. The court concluded that there was no genuine issue of material fact and no written agreement to arbitrate. It granted the defendant’s motion for summary judgment. On appeal, the plaintiffs claim that the existence of an arbitration agreement is a question of fact, and as a result, the court’s summary judgment was improper.

“Summary judgment is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... A material fact is a fact that will make a difference in the result of the case.” (Citations omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn. App. 123, 126, 968 A.2d 956 (2009). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 759, 714 A.2d 649 (1998). “[T]he existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof.” (Internal quotation marks omitted.) Little v. Yale University, 92 Conn. App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). “Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, 116 Conn. App. 417, 427, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

“Arbitration is a creature of contract.” (Internal quotation marks omitted.) Marinos v. Building Rehabilitations, LLC, 67 Conn. App. 86, 88, 787 A.2d 46 (2001). Therefore, “[t]he authority for arbitration must be derived from the agreement of the parties . . . .” (Internal quotation marks omitted.) Id. “[A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so. ... No one can be forced to arbitrate a contract dispute who has not previously agreed to do so.” (Internal quotation marks omitted.) Id.

Arbitration agreements are strictly construed. Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 355, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). “An agreement to arbitrate must be clear and direct and not depend on implication.” Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 179, 508 A.2d 64, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). It must also be in writing. The writing requirement of General Statutes § 52-408 is strictly enforced. Bennett v. Meader, 208 Conn. 352, 362, 545 A.2d 553 (1988); see also id., 362 n.8 (“only written arbitration agreements are enforceable and all others are void”).

Although “[t]he existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence”; (internal quotation marks omitted) Marinos v. Building Rehabilitations, LLC, supra, 67 Conn. App. 89; to withstand a motion for summary judgment, the plaintiffs in this case bear the burden of providing concrete evidence that raises a genuine issue as to the existence of a written contract to arbitrate. They fail to do so.

The parties’ correspondence, viewed in the light most favorable to the plaintiffs, indicates that the parties had an informal agreement to arbitrate, but they never agreed on any of the terms for arbitration, including the parameters for both plaintiffs’ claims, how the expense of arbitration should be allocated, when the arbitration would take place or who would preside as arbitrator.

The plaintiffs nevertheless claim that a failure to agree to arbitration parameters is not detrimental to their claim. They argue that the terms of arbitration are not essential to satisfy § 52-408 and maintain that the parameters of arbitration can be defined though parol evidence. We agree that documentary parol evidence may be relevant to establishing the existence of a written agreement to arbitrate. The plaintiffs, however, failed to present the essential documentary evidence. Moreover, the defendant never manifested an intent to be bound by the parties’ informal plan to arbitrate. From January, 2005, to September, 2006, the defendant sent eleven letters, including two draft arbitration agreements, to the plaintiffs seeking to define reasonable parameters for arbitration and to reduce an agreement to writing. For almost two years, the defendant urged the plaintiffs to “execute a binding arbitration agreement,” to submit a “proposal in writing,” and to work with the defendant to “get a signed arbitration agreement.” The plaintiffs rarely responded and did not return or comment in writing on either of the draft arbitration agreements. Finally, in a February, 2007 letter, the defendant concluded that “no arrangements to arbitrate . . . were ever made . . . .”

The plaintiffs also argue that the court could compel unrestricted arbitration. The authority for arbitration, however, must be derived from the agreement of the parties; see Marinos v. Building Rehabilitations, LLC, supra, 67 Conn. App. 88; and, in this case, both parties expressed, in writing, a desire to establish high and low award limits.

Finally, the plaintiffs claim that the parties did agree, in writing, to a high figure of $100,000 for Catherine Farrell. Their claim is not supported by the evidence. In a letter dated March 28,2005, the defendant proposed the policy limit of $100,000 as the high figure for Catherine Farrell’s claim, but the plaintiffs never agreed to the defendant’s proposal in writing.

The judgment is affirmed.

In this opinion the other judges concurred.

      In support of its motion, 1he defendant submitted an affidavit of its authorized representative that stated the same.

       General Statutes § 52-408 states in pertinent part: “[A]n agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

       See Bennett v. Meader, supra, 208 Conn. 363 (“[B]ecause the parties must memorialize their agreement to arbitrate, it also is likely that they will establish, either separately or within the agreement to arbitrate, a written submission setting forth the arbü rabie issues. It is from the submission alone that the arbitrator receives his or her authority . . . . ” [Emphasis added.]).
      In contrast, oral parol evidence is irrelevant absent the written agreement required by § 52-408. See id., 361 n.7 (if the arbitration agreement is not in writing, “there is no legally cognizable bargain to be enforced”).

       The affidavit submitted by the plaintiffs in support of their motion does not further their cause. It merely states that the parties agreed to resolve the plaintiffs’ claims through arbitration. It does not provide any indication that a written agreement to arbitrate ever existed.

       “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 65 n.2, 924 A.2d 160 (2007). As a result, “the arbitrators’ decision is considered final and binding . . . courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.” (Internal quotation marks omitted.) Id., 68.