author: CRT TENDEL, J.

text:
    BERNARD KLEINMAN v. ANN CHAPNICK
    (AC 32340)
    Gruendel, Lavine and Mihalakos, Js.

      Argued September 12
    officially released October 18, 2011

      Joseph DaSilva, Jr., with whom, on the brief, was Marc J. Grenier, for the appellant (defendant).

      Bernard V. Kleinman, pro se, the appellee (plaintiff).
   Opinion

CRT TENDEL, J.

The defendant, Ann Chapnick, appeals from the judgment of the trial court rendered in response to a postjudgment motion for clarification of a judgment of dissolution. She claims that the court abused its discretion in declining to enter an educational support order for a particular academic year. We affirm the judgment of the trial court.

The record discloses the following undisputed facts. The parties married in 1979, and two children were bom of the marriage. Following the subsequent breakdown of their marriage, the plaintiff commenced a dissolution action and the parties thereafter entered into a “stipulation for a final judgment on the issues of custody and parenting access,” which the court approved on October 22, 2008. A two day trial on the remaining issues followed in February, 2010. At that time, both children were over the age of eighteen and were enrolled as full-time college students. On March 12, 2010, the court rendered judgment dissolving the parties’ marriage, finding that it had broken down irretrievably. The court further found that the plaintiff bore responsibility therefor.

As part of the judgment of dissolution, the court entered various financial orders. Pertinent to the defendant’s appeal is the court’s order that “[p]ursuant to the limitations set forth in General Statutes § 46b-56c, the [plaintiff] will pay 100 percent of the statutory expenses for the education of the parties’ younger daughter, Avery, beginning with school year 2010-2011.” In addition, the court ordered that “[e]ach party will be responsible for those liabilities listed on his or her financial affidavit, indemnifying and holding the other harmless thereon.” The liabilities detailed in the plaintiffs February 16, 2010 financial affidavit included $66,000 in student loans for Haleigh, his older daughter, on which he made monthly payments of $890. In addition, the financial affidavit listed $15,000 in education expenses for Haleigh and $185,000 in education expenses for Avery as liabilities. Those expenses contained no reference to particular dates; rather, they simply indicated “anticipated to graduation.” At trial, the parties represented to the court that Haleigh was due to attain her undergraduate degree from the University of California, Santa Cruz, at the end of the 2009-2010 academic year. They further indicated that Avery at that time was a freshman at Northwestern University.

On March 30, 2010, the defendant filed a “motion to clarify, correct and/or reargue.” In that motion, she noted, inter alia, that the court did not enter an educational support order as to either child for the 2009-2010 academic year. She therefore requested that the court “clarify and/or make such orders to resolve this outstanding issue . . . .” The court heard argument on the defendant’s motion on May 12, 2010, at the conclusion of which it stated: “All right. The decision stands and I’m not changing that portion of the decision and I’m not going retroactive for the 2009-2010 school year.” From that judgment, the defendant appealed to this court.

The defendant thereafter filed a motion for articulation with the trial court on November 18, 2010. She sought an articulation on four issues relevant to this appeal: “(1) Did the court expressly mean to exclude the academic year 2009-2010 from its educational support order? (2) Did the court rely upon the plaintiffs testimony regarding [certain] payments when fashioning its educational support order? (3) Did the court rely upon the plaintiffs inclusion of the children’s educational expenses as liabilities upon his financial affidavit when fashioning its educational support order, in that the court held that ‘each party will be responsible for those liabilities listed on his or her financial affidavit, indemnifying and holding the other harmless thereon’ when it crafted its educational support order that did not include any payment for Haleigh’s 2010 tuition? (4) Did the court conclude that by making the plaintiff responsible for the debts set forth on his financial affidavit that the plaintiff would be responsible for the children’s educational expenses for academic year 2009-2010 and therefore that a specific educational support order would not be necessary?” In its subsequent articulation, the court answered the first three inquiries in the affirmative and the fourth in the negative.

The defendant’s primary contention on appeal is that the court abused its discretion in declining to enter an educational support order for a portion of the 2009-2010 academic year in either its March 12,2010 memorandum of decision or its May 12, 2010 denial of her motion for clarification of that issue. We review that claim under the abuse of discretion standard. “In fashioning its financial orders, the court has broad discretion, and [j Judicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review 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.) Sander v. Sander, 96 Conn. App. 102, 105, 899 A.2d 670 (2006).

Applying that deferential standard, an eminently reasonable explanation exists for the court’s decision not to enter an educational support order for the 2009-2010 academic year. As counsel for the defendant stated at oral argument, this appeal concerns the “narrow issue” of “the failure to issue an order for the balance of that academic year, not the entire [academic] year obviously.” The undisputed evidence before the court reveals that the payments voluntarily made by the plaintiff toward his daughters’ 2009-2010 academic year expenses exceeded that which the court was authorized to order pursuant to § 46b-56c (f).

In its May 12, 2010 denial of the defendant’s postjudgment motion for clarification, the court expressly stated that it would not enter a retroactive educational support order. Section 46b-56c contains no language authorizing retroactive application, and various provisions contained therein suggest that it is intended to apply prospectively. See, e.g., General Statutes § 46b-56c (b) (1) (authorizing court to enter educational support order “at the time of entry of a decree of dissolution, legal separation or annulment”); General Statutes § 46b-56c (c) (4) (requiring court to consider reasonableness of higher education “to be funded”); General Statutes § 46b-56c (c) (6) (requiring court to consider evidence of institution of higher education child “would attend”); General Statutes § 46b-56c (e) (setting forth conditions child must comply with “[t]o qualify for payments due under an educational support order”); cf. General Statutes § 46b-56c (b) (2) (authorizing court to enter educational support order at time of entry of order for support pendente lite). Although the plaintiff in this appeal argues that the court cannot impose an educational support order for college expenses incurred prior to the judgment of dissolution, we need not address that issue of statutory interpretation in any detail, as the defendant does not disagree with that proposition. Moreover, the defendant made clear at argument before this court that she was not seeking a retroactive order and that the only issue before us was the court’s “failure to issue an order for the balance of that academic year,” rather than the entire academic year.

Trial in this matter was held on February 17 and 18, 2010, and the court rendered judgment in its March 12, 2010 memorandum of decision. Thus, at issue is but a few months of educational support. The parties both submitted evidence establishing that the cap for such expenses set forth in § 46b-56c (f) was approximately $22,000 for the 2009-2010 academic year. Given that trial in this matter did not commence until mid-February, 2010, and accepting the position taken by the parties in this appeal that the court could not enter a retroactive educational support order, the court, at the most, could enter an educational support order for less than half of that cap amount.

The court’s December 29, 2010 articulation plainly indicates that the court purposely excluded the 2009-2010 academic year from its educational support order. At trial, the court was presented with evidence, which the defendant has not disputed at trial or in this appeal, that the plaintiff made significant financial contributions to the college expenses of both children for the 2009-2010 academic year. With respect to elder daughter Haleigh, the evidence indicates that the plaintiff paid $6000 in tuition, $2000 for a parking sticker, $800 per month in rent and $200 per month in miscellaneous credit card expenses. With respect to Avery, the evidence indicates that the plaintiff paid $10,000 in tuition, $2400 for health insurance, $1800 for a laptop computer and $150 per month in credit card expenses. In light of the uncontroverted evidence of those contributions, the court may well have concluded that an educational support order for the remainder of the 2009-2010 academic year was unwarranted, particularly when both the plaintiffs financial affidavit and his trial testimony indicated that he already was responsible for $66,000 in federal PLUS loans; see 20 U.S.C. § 1078-2; related to Haleigh’s undergraduate education, which expenses all arose prior to the dissolution of the parties’ marriage.

Under § 46b-56c, whether an educational support order is warranted in a particular case is vested to the sound discretion of the trial court. See Sander v. Sander, supra, 96 Conn. App. 119. In light of the foregoing and indulging every reasonable presumption in favor of the correctness of the court’s action, we cannot say that the court abused that discretion.

We likewise reject the defendant’s ancillary claim that an ambiguity exists regarding the plaintiffs responsibility for the “anticipated” education expenses listed on his financial affidavit. In its memorandum of decision, the court declined to enter an educational support order for the 2009-2010 academic year. In its subsequent articulation, the court indicated that it purposely excluded that academic year from its educational support order. The defendant now maintains that the inclusion of those anticipated expenses on the plaintiffs financial affidavit suggests that the court intended to hold him responsible therefore in light of its general order holding each party responsible for their respective liabilities. We disagree. In its response to the articulation requested by the defendant on this precise issue, the court stated that it did not so intend. Rather, the court rejected the defendant’s proposition that “by making the plaintiff responsible for the debts set forth on his financial affidavit that the plaintiff would be responsible for the children’s educational expenses for academic year 2009-2010 . . . .” The court likewise declined to enter an educational support order for the 2009-2010 academic year in its May 12, 2010 oral ruling denying the defendant’s motion for clarification on that issue. The record demonstrates in convincing fashion that the court did not intend to hold the plaintiff responsible for educational support expenses beyond those specified in the court’s educational support order.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court clarified its judgment in other respects not germane to this appeal.

       Neither party presented a statutory analysis in their respective appellate briefs. The plaintiffs brief asserts that “there is nothing in either the language of [§ 46b-56c] or in its legislative history to indicate that a court may impose an educational support order for a period prior to the issuance of the final decision in the matter. And, the case law decided thereunder, all involve prospective orders for the payment of college expenses.” The plaintiff further relies on two relevant trial court decisions. See Jones v. Jones, Superior Court, judicial district of Hartford, Docket No. FA-01-0727085-S (June 16, 2009) (Epstein, J.) (holding that “[i]n Robinson [v. Robinson, 86 Conn. App. 719, 862 A.2d 326 (2004)], any educational support order would be prospective and not retroactive. This court cannot find any authority in . . . § 46b-56c or in Robinson which would allow the court to issue an order for payment retroactively for expenses previously incurred . . . .”); Jensen v. Jensen, Superior Court, judicial district of New London, Docket No. FA-02-0562538-S (June 11, 2009) (Shluger, J.) (“There is nothing in [§ 46b-56c] which requires or even suggests retroactivity. It is hornbook law that child support Orders cannot be retroactive. An order for postmajority educational support is in fact an order for child support for college education.”). The defendant did not address the issue of retroactive application in her principal brief and did not submit a reply brief. At oral argument, she expressed her agreement with the plaintiffs position, stating that “it is not our argument or contention” that the court is authorized to enter a retroactive educational support order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ERIC J. GREENE v. COMMISSIONER OF CORRECTION
    (AC 31365)
    Bear, Espinosa and Bishop, Js.
    Argued September 13
    officially released October 18, 2011

      Deren Manasevit, special public defender, for the appellant (petitioner).

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

PER CURIAM.

The petitioner, Eric J. Greene, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that one of his trial attorneys, Glenn Falk, had provided ineffective assistance of counsel. He argues on appeal that Falk provided ineffective assistance during plea negotiations and that he failed to tell the petitioner to accept the state’s initial plea offer, with a definite sentence, and, instead, permitted him to enter an open plea, i.e., a plea without an agreed on sentence. He requests on appeal that we vacate his sentence and permit him to accept the original plea offer or, in the alternative, that we vacate his convictions and remand the matter for a new trial. We dismiss the appeal.

Although the petitioner raised claims of ineffective assistance of counsel in his amended habeas petition, a thorough review of that petition reveals no claim that Falk had been ineffective for failing to tell the petitioner to accept the state’s initial plea offer. Even if we read the petition broadly, we are unable to ascertain the existence of such a claim. Furthermore, it is clear that although the habeas court considered whether Falk had provided ineffective assistance and found that the petitioner had failed to prove such a claim, it did not consider whether Falk had an affirmative obligation to tell the petitioner to accept the state’s plea offer. Our own review of the record reveals no error in the court’s decision. 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.

Furthermore, it is axiomatic that a petitioner is bound by his petition. “It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). Having not raised this issue before the habeas court, the petitioner is barred from raising it on appeal. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the [petitioner’s] claim. . . . This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” (Internal quotation marks omitted.) Satchwell v. Commissioner of Correction, 119 Conn. App. 614, 619, 988 A.2d 907, cert. denied, 296 Conn. 901, 991 A.2d 1103 (2010). We conclude, therefore, that the petitioner has failed to demonstrate that the habeas 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.

       In his amended habeas petition, the petitioner asked only that his cases be restored to the Superior Court docket.

       During oral argument before this court, the petitioner’s attorney was asked where in the amended petition such a claim was located. She responded that the only allegation reasonably related to the claim on appeal was the allegation that “Falk led the petitioner to believe that his sentence on July 14, 2006, would not exceed ten years to serve.” Counsel could point to no other allegation, nor have we found one.


text:
    EMIL D. ANGHEL v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER
    (AC 33004)
    Robinson, Alvord and West Js.

      Argued September 13
    officially released October 25, 2011

      Emil D. Anghel, pro se, the appellant (plaintiff).

      Jessica D. Meerbergen, with whom, on the brief, was Louis B. Blumenfeld, for the appellee (defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Emil D. Anghel, appeals from the judgment of the trial court granting the motion to dismiss of the defendant, Saint Francis Hospital and Medical Center. On appeal, the plaintiff contends that the trial court erred in determining that he did not provide a written opinion of a similar health care provider as required under General Statutes § 52-190a. We dismiss the appeal as moot.

The following facts and procedural history are relevant to the resolution of the plaintiffs claim. On December 5, 2001, the plaintiff sought treatment for anxiety and depression at the Clinic Annex to the defendant hospital. After an intake interview, the plaintiff was referred to the defendant’s emergency department. The plaintiff filed an action in the United States District Court for the District of Connecticut, on May 15, 2003, alleging that he was mistreated during his stay at both the Clinic Annex and the defendant’s emergency department on December 5, 2001. That action was subsequently dismissed on October 22, 2007, based on a lack of subject matter jurisdiction. The plaintiff appealed the District Court’s decision on November 26, 2007. While the plaintiffs appeal was pending before the United States Court of Appeals for the Second Circuit, the plaintiff filed a complaint in Connecticut Superior Court on October 8, 2008, based on the defendant’s alleged mistreatment of the plaintiff. The plaintiff premised that action on General Statutes § 52-592, the accidental failure of suit statute. On November 10, 2008, the defendant moved for summary judgment of the state court complaint on the basis that there was an appeal pending in federal court with the same parties and underlying facts. On December 1, 2008, the trial court granted the defendant’s motion for summary judgment, determining that the plaintiffs reliance on § 52-592 was premature in light of the plaintiffs pending appeal in federal court. The trial court’s decision was affirmed in Anghel v. Saint Francis Hospital & Medical Center, 118 Conn. App. 139, 982 A.2d 649 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1055, cert. denied, 559 U.S. 1069, 130 S. Ct. 2111, 176 L. Ed. 2d 726 (2010). On October 6, 2009, the Second Circuit dismissed the plaintiffs appeal.

The plaintiff filed the present action on September 17,2010, again pursuant to § 52-592. The plaintiff s complaint asserted four claims: (1) cruel and unusual treatment, (2) medical malpractice, (3) pain, suffering, and emotional distress, and (4) violation of the plaintiffs constitutional rights. The plaintiff attached to his complaint a certificate of good faith, dated September 15, 2010, as well as a forensic psychiatrist’s report, dated April 20, 2006.

On October 28, 2010, the defendant moved to dismiss the plaintiffs complaint due to the plaintiffs alleged failure to comply with § 52-190a. The defendant noted that the plaintiffs action was premised on § 52-592, following the dismissal of the plaintiffs federal court action. The defendant argued, however, that when the plaintiff brought the action in federal court, he did not conduct the requisite inquiry to determine if there was a good faith basis on which to bring the action against the defendant as required under § 52-190a.

The defendant further argued that the complaint must be dismissed because the written opinion attached to the plaintiffs complaint was not one of a similar health care provider and, thus, did not comply with § 52-190a. The defendant argued that in order to comply with the statute, the plaintiff should have attached a written opinion of an emergency medical physician and not a psychiatrist.

On November 15, 2010, the court granted the defendant’s motion to dismiss. The court determined that the accidental failure of suit statute did not apply to the plaintiffs case because he had not made the requisite inquiry to determine if there were grounds for a good faith belief that the defendant was negligent, as required under § 52-190a, nor had the plaintiff attached a certificate of such inquiry when commencing his federal action. Furthermore, the court found that because the plaintiff had received treatment from emergency room personnel, the report from the psychiatrist was not that of a similar health care provider and, thus, did not meet the requirements of § 52-190a. This appeal followed.

The plaintiff claims that the trial court erred in determining that by attaching an opinion of a psychiatrist and not an emergency room physician, the plaintiff did not meet the requirements of § 52-190a because the opinion was not one of a similar health care provider. The defendant argues that the trial court’s decision should be affirmed because the plaintiff did not challenge the court’s finding that he did not make a reasonable inquiry to determine if there were grounds for a good faith belief that the defendant was negligent. We agree with the defendant and conclude that the plaintiffs claim is moot.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . [T\t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555-56, 979 A.2d 469 (2009).

The trial court cited two independent grounds for granting the defendant’s motion to dismiss. The court found that the plaintiff had not obtained a written opinion of a similar health care provider because the plaintiff obtained an opinion from a psychiatrist rather than an emergency room physician. That basis of the decision is now on appeal. The court also determined, however, that the plaintiff could not use the accidental failure of suit statute to bring his state court claim because he had not made a reasonable inquiry to determine'if there were grounds for a good faith belief that the defendant was negligent before initiating his federal action. The plaintiff did not appeal that basis of the trial court’s decision. “[W]here alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant.” (Internal quotation marks omitted.) Horenian v. Washington, 128 Conn. App. 91, 99, 15 A.3d 1194 (2011). Even if we were to conclude that the court improperly determined that the psychiatrist’s opinion was not that of a similar health care provider, the unchallenged finding that the plaintiff did not perform the requisite inquiry into whether there was a good faith basis to believe that the defendant was negligent would still stand as an alternative ground to dismiss the plaintiffs complaint. Accordingly, because we cannot grant the plaintiff any practical relief with respect to his claim, we dismiss the appeal as moot.

The appeal is dismissed.

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .
      “(d) The provisions of this section shall apply to any . . . action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.”

       At the time the plaintiff filed his initial complaint in federal court in May, 2003, General Statutes (Rev. to 2003) § 52-190a (a) required a claimant or his attorney to make a “reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . .” This provision required a complaint or initial pleading to include a certificate that the attorney or person filing the action performed such requisite inquiry. In order to comply with this provision, one could attach to the certificate of good faith a written opinion of a similar health care provider that there appeared to be evidence of negligence. Section 52-190a was subsequently amended in 2005 by Public Acts 2005, No. 05-275, § 2, thereby making it mandatory to attach to the certificate of good faith the written opinion of a similar health care provider.


author: BISHOP, J.

text:
    IN RE KALEB H

    (AC 33293)
    Beach, Bishop and Mihalakos, Js.
    Argued September 6
    officially released October 25, 2011

      Dana M. Hrelic, with whom were Brendon P. Levesque and, on the brief, Michael S. Taylor, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BISHOP, J.

The respondent mother of the minor child, Kaleb, appeals from the judgment of the trial court committing Kaleb to the custody of the petitioner, the commissioner of children and families. The respondent claims that she was deprived of her due process rights when the court denied her counsel’s request for a competency examination at a hearing on a motion filed by the respondent to revoke Kaleb’s commitment to the custody of the petitioner. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to the respondent’s claim on appeal. Kaleb was bom on February 25, 2005. In March, 2009, the respondent was involved in an incident of domestic violence with the father of Kaleb’s siblings. Consequently, the respondent participated in various services offered by the department of children and families in an effort to improve her parenting skills. On March 19, 2010, the petitioner filed a neglect petition as to Kaleb on the ground that he was being denied proper care and supervision, that his medical and educational needs were not being met, that he was exposed to domestic violence in the home and that he was being permitted to live under circumstances injurious to his well-being. On May 20, 2010, the respondent pleaded nolo contendere to the allegations of neglect. Consequently, Kaleb was adjudicated neglected, and the court ordered six months of protective supervision.

On June 15, 2010, the petitioner invoked a ninety-six hour hold; see General Statutes § 17a-101g; on Kaleb following the respondent’s arrest for risk of injury to a child that stemmed from Kaleb’s unsupervised absence from his home, for several hours, without the respondent’s knowledge that Kaleb had left the home. On June 18, 2010, the court issued an order of temporary custody, placing Kaleb in the custody of the petitioner. On June 24,2010, the petitioner filed a motion to modify the child’s disposition from protective supervision to commitment. On June 25, 2010, on the basis of an agreement between the petitioner and the respondent, the court sustained the order of temporary custody. At that time, the respondent again was canvassed and affirmed that she understood her rights, stating that she would comply with the department’s requirements to get her children back. The court also ordered, based on an agreement of the parties, a psychological and psychiatric examination of the respondent, which was performed by Robert H. Neems, a psychologist.

On January 3, 2011, the respondent filed a motion to revoke the commitment and a motion for a new psychological evaluation, claiming that her test was “inaccurate as it was the first time she had taken a psychological evaluation and she was overwhelmed.” In addition, the respondent claimed that she did not have ample time to counter or explain the allegations made by the petitioner and, therefore, the results of the evaluation did not “reflect an accurate portrayal of her as a parent.”

On February 25, 2011, a hearing commenced on the respondent’s motions, as well as a motion filed by Kaleb’s father to transfer guardianship of Kaleb to his paternal grandmother or aunt. At the beginning of the hearing, counsel for the respondent then indicated to the court that the respondent had informed her that she never agreed that Kaleb was neglected. On that basis, counsel indicated that she was uncertain that the respondent would be able to assist in her defense. The court explained to the respondent that she had previously agreed to the neglect adjudication and the order of protective supervision. Counsel then requested that the respondent’s competence be evaluated on the basis that the respondent claimed that she did not know what she was signing when she agreed to the neglect adjudication. The court indicated that it had read the psychological reports authored by Neems and that those reports did not support the claims of the respondent’s incompetency. The court, however, advised counsel that she could inquire of Neems whether he had an opinion regarding the respondent’s competency. The court then proceeded with the hearing regarding the commitment of Kaleb. Following the hearing, the court committed Kaleb to the custody of the petitioner. This appeal followed.

On appeal, the respondent claims that the court’s denial of her request for a competency evaluation deprived her of her constitutional right to due process. In support of her claim, the respondent relies on In re Alexander V., 223 Conn. 557, 613 A.2d 780 (1992). In In re Alexander V., a termination of parental rights case, the court utilized a two-pronged approach in deciding the issues raised in that appeal. The court considered whether “the due process clause of the federal constitution requires a trial court to order a competency hearing for a parent whose parental rights the state seeks to terminate,” and then “whether the trial court, sua sponte, should have ordered a hearing concerning the respondent’s competency . . . .” Id., 559. In that case, the court concluded: “[D]ue process does not require a competency hearing in all termination cases but only when (1) the parent’s attorney requests such a hearing, or (2) in the absence of such a request, the conduct of the parent reasonably suggests to the court, in the exercise of its discretion, the desirability of ordering such a hearing sua sponte. In either case, the standard for the court to employ is whether the record before the court contains specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Evidence is substantial if it raises a reasonable doubt about the [parent’s] competency . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 566. Because the respondent in In re Alexander V. failed to raise a reasonable doubt as to her competence, the court determined that she was not deprived of her due process rights by the court’s failure to order a competency evaluation.

Here, the respondent seeks to extend the Supreme Court’s holding in In re Alexander V. to commitment proceedings, claiming that the same constitutional right to a competency evaluation exists in these proceedings due to the potential modification or limitation they may have on fundamental parental rights. Because we conclude, however, that the respondent did not assert any specific factual allegations that raised a reasonable doubt as to her competency, we leave for another day the question of whether the same due process right to a competency evaluation that exists in termination proceedings also pertains to commitment proceedings.

“We review the court’s ruling on a motion for a competency evaluation under the abuse of discretion standard. ... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citation omitted; internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 651, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010). “The trial court should carefully weigh the need for a hearing in each case, but this is not to say that a hearing should be available on demand. . . . [T]he trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competency of a defendant is highly significant.” (Citation omitted; internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 523-24, 973 A.2d 627 (2009).

Applying these principles, we conclude that the respondent failed to make specific factual allegations sufficient to raise a reasonable doubt as to her competence. In support of her request for a competency examination of the respondent, counsel relied on the respondent’s contention that she never agreed to the prior neglect adjudication. This bald assertion, giving rise to counsel’s expression of doubt as to the respondent’s ability to assist in the proceeding, constitutes nothing more than a conclusory allegation that is, by itself, insufficient to raise a reasonable doubt regarding the respondent’s incompetence to stand trial. See id., 524 (lack of legal and communication skills does not necessarily give rise to competency hearing); In re Alexander V., supra, 223 Conn. 567 (court did not err in not ordering competency examination due to lack of reasonable doubt despite evidence that respondent suffered from personality disorder and was in state of “constant instability”); State v. Lloyd, 199 Conn. 359, 363, 507 A.2d 992 (1986) (evidence of defendant’s involvement in drugs and his medical report were relevant but did not, alone, support vague, conclusory allegations of incompetency); State v. Kendall, supra, 123 Conn. App. 653 (court did not abuse discretion when it determined that defendant’s belief in divine intervention did not create reasonable doubt as to competency), cert. denied, 299 Conn. 902, 10 A.3d 521 (2010); State v. Bigelow, 120 Conn. App. 632, 642-43, 994 A.2d 204 (fact that defendant was receiving medication and would require medication during course of trial does not render him incompetent), cert. denied, 297 Conn. 916, 996 A.2d 278 (2010); State v. Collazo, 113 Conn. App. 651, 662, 967 A.2d 597 (defendant not entitled to competency hearing when allegations were nothing more than brief, unsubstantiated references to psychiatric problems and use of medication), cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).

Although testing of the respondent revealed her to have mild mental retardation, her diminished mental capacity, as noted, did not necessarily implicate her competence to assist in the commitment proceeding. Additionally, our review of the transcripts of proceedings occurring prior to the date of the commitment hearing reveals that the respondent appeared before the same trial judge on May 20 and November 10, 2010. Thus, the trial judge was “entitled to rely on his own observations of the [respondent’s] responses during the canvassing, in light of the [respondent’s] demeanor, tone, attitude and other expressive characteristics. The trial court was in the best position to assess whether the [respondent] behaved rationally at that time.” State v. Collazo, supra, 113 Conn. App. 663 n.6.

On the basis of the foregoing, we cannot conclude that the record contained specific factual allegations that raised a reasonable doubt as to the respondent’s competency. Accordingly, we conclude that the court did not abuse its discretion in denying the respondent’s motion for a competency evaluation.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the father is not a party to this appeal, we refer to the mother as the respondent.

       The respondent had also filed a motion for a new psychological examination, and the father had filed a motion to transfer the guardianship of Kaleb to his paternal grandmother or aunt, which were pending before the court at that time.

       The respondent’s other children also were subjects of these proceedings. This appeal, however, concerns only the respondent’s claims regarding Kaleb.

       At the neglect hearing, the respondent was canvassed in detail, and the court found that she had entered her plea knowingly, intelligently and voluntarily.

       Specifically, the following colloquy occurred:
      “[The Respondent’s Counsel]: Your Honor, something has come to my attention. In discussing with my client, I had explained to her on a couple different occasions that the children were adjudicated neglected on May 20, 2010—May—
      “The Court: Right.
      “[The Respondent’s Counsel]: —I’m sorry—May 20, 2011.
      “The Court: Right.
      “[The Father’s Counsel]: No.
      “[The Respondent’s Counsel]: I’m sorry, 2010.
      “The Court: Right.
      “[The Respondent’s Counsel]: [The respondent] has indicated to me that she has no recollection of ever being canvassed, that she was not—that she never agreed to them being adjudicated neglected, which calls into question for me whether or not she can adequately assist me. My first suggestion would be that if Your Honor would just go back and explain to [the respondent], and if there’s actually a no contest plea in the court’s file, and from there I—I have to make a couple of decisions.
      “The Court: Now, that’s when the children were under protective supervision, correct?
      “[The Respondent’s Counsel]: There was an adjudication—
      “The Court: Right.
      “[The Respondent’s Counsel]: —on May 20, and the children would’ve been under protective supervision.
      “The Court: All right. And what’s before me now is a request to modify that disposition from protective supervision to commitment.
      “[The Respondent’s Counsel]: That is correct, Your Honor. However, [the respondent] indicates to me that she has never agreed that they were adjudicated neglected. So, therefore, it calls into question whether or not she can adequately assist me in her defense if, in fact, there are legal concepts and issues that she truly didn’t understand, didn’t know what she was doing or signing. I’m not comfortable—
      “The Court: Well—
      “[The Respondent’s Counsel]: —if, in fact, she—if she sees her signature and would like to move forward, but without that I think I may have to ask for a couple of other things before I get started.

        (Pause)

      “[The Respondent’s Counsel]: Your Honor, I’m sorry. Also, I was not her attorney at that time.
      “The Court: I know you weren’t.
      “[The Respondent’s Counsel]: Okay.
      “The Court: I know. Marshal, give that to attorney [Tracy L.] Toce [the respondent’s counsel], please?

        (Pause)

      “The Court: [addressing the respondent]: ... On May 11, you participated in a case status conference, and based on that case status conference you came to court on May 20, and at that time I entered an order based on your plea allowing the children to remain with you under protective supervision for a period of six months beginning May 20 until November 20—until November 20, 2010.
      “You were canvassed. [The father] stood silent on that day. You entered a plea of nolo contendere. I asked you all the questions. At that time you were represented by counsel. You answered all the questions. I made a finding that your plea was entered voluntarily. I accepted your plea I ac]judicated the children neglected and I ordered them to be, you know, to be with you under protective supervision for a period of six months.
      “[The Respondent]: Where’s the adjudication of neglect come from?
      “The Court: Well, that’s something that you should have discussed with your other attorney. It was based on the facts as they were set forth within the petition. So, based on that—
      “[The Respondent]: Well, I have all kinds of evidence—
      “The Court: —there was a finding of neglect.
      “[The Respondent]: —that I was denied to file a report—
      “The Court: Well, we’re proceeding today with whether or not I modify the present disposition from protective supervision to commitment of Kaleb and then I decide based on that—
      “[The Respondent]: (indiscernible).
      “The Court: All right. Attorney Toce’s representing you. So, then I decide based on whether—once I make a decision as to whether or not it’s appropriate to modify the disposition from protective supervision to commitment, then I decide based on the evidence that’s presented where I place the child, whether I place the child back with you, whether I allow the child to remain with the foster parents, or whether I allow the child to live with either the paternal grandmother or paternal aunt based on the recommendations that are made and based on what I believe is in the child’s best interest. So, that’s where we are today. All right.
      “[The Respondent’s Counsel]: Your Honor, I don’t—I—I think—on behalf of [the respondent] I do believe she needs a competency evaluation. I mean, she—she’s indicating to me she has no idea what she signed, and if she did it, she didn’t know what she was doing. I don’t feel comfortable going forward because I don’t think she actually can assist me with the legal defense. Additionally, she has a conservator—and, frankly, I’m new to this case. However, she has a conservator of her estate, which is her father, and I—I think at this—•
      “The Court: Well, that’s her financial estate.
      “[The Respondent’s Counsel]: I understand. But if she—
      “The Court: Not of the person.
      “[The Respondent’s Counsel]: But if she’s telling me that she does not know what she signed when she signed that and she was canvassed and she’s saying to me now if I signed it I don’t know what it was, I don’t feel comfortable going forward unless she’s evaluated for competency.
      “The Court: Well, I read the psychological report, and there’s nothing in there that would indicate that she’s not competent.
      “[The Respondent’s Counsel]: But there wasn’t—and either was never a pointed question as to whether or not she was competent. And I actually talked to Dr. Neems out in the hallway, and that wasn’t part of what—what he was asked to do or assessed to do.
      “The Corut: Well, if Dr. Neems—you know, if you want to elicit, you know, testimony from Dr. Neems that she’s not competent based on his evaluation, you can do so during the course of your questioning of Dr. Neems.
      “[The Respondent]: I’m very competent. I’m not psychological—
      “The Court: Okay.
      “[The Respondent]: —malpractice. There’s a lot I do.”

       Counsel for the respondent did, in fact, attempt to elicit testimony from Neems regarding the respondent’s competence. Neems indicated that he made a finding of mild retardation, but that finding did not affect the respondent’s ability to participate in court proceedings. Neems testified that his interactions with the respondent revealed that the respondent understood that her parenting skills were being evaluated but that he had not evaluated the respondent’s competence to assist in her defense. On that basis, the court did not allow further questioning of Neems as to the respondent’s competence. The respondent is not challenging on appeal the merits of the court’s evidentiary decision limiting her questioning of Neems regarding her competence. Rather, the respondent challenges the court’s decision in that regard only insofar as it relates to counsel’s request for a competency evaluation and her claim of the consequential deprivation of the opportunity to establish a reasonable doubt as to her competence. Because Neems did not evaluate the respondent’s competence to assist in her defense, it is difficult to discern how further questioning by the respondent would have raised a reasonable doubt as to her competence in that regard.

       The respondent argues on appeal that she is not seeking a competency examination in every case in which a parent’s competency may be in doubt, but only in those cases “where a reasonable doubt exists in the record as to the respondent’s legal competency and where counsel for the respondent specifically requests such an evaluation . . . In so arguing, the respondent seeks to extend the need for a competency examination to all cases in which counsel asks for such an examination. In re Alexander V., however, does not stand for the proposition the respondent urges upon us. In In re Alexander V., the court did not distinguish cases in which counsel makes such a request and cases in which the court should order a competency evaluation sua sponte. The court said that “in either case,” the court must consider specific factual circumstances to ascertain whether there is a reasonable doubt as to competency.


text:
    MONTERAL MORRIS v. COMMISSIONER OF CORRECTION
    (AC 32085)
    DiPentima, C. X, and Gruendel and Beach, Js.

      Submitted on briefs September 9
    officially released October 25, 2011

      Justine F. Miller, special public defender, filed a brief for the appellant (petitioner).

      John A. Connelly, former state’s attorney, Rocco A. Chiarenza, deputy assistant state’s attorney, and Patrick Griffin, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Monteral Morris,

appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. Specifically, he claims that the court (1) improperly rejected his claim that his trial counsel rendered ineffective assistance by failing to file certain motions and (2) improperly rejected his claim that trial counsel failed to investigate adequately the evidence against the petitioner. We dismiss the petitioner’s appeal.

The following factual and procedural history is relevant to the resolution of the petitioner’s appeal. The state charged the petitioner with the crimes of attempt to commit murder, criminal possession of a firearm, criminal use of a firearm, two counts of robbery in the first degree, two counts of larceny in the second degree, unlawful discharge of a firearm and reckless endangerment in the first degree. The petitioner pleaded guilty, pursuant to the Alford doctrine, to robbery in the first degree, assault in the first degree, and criminal possession of a firearm. The trial court sentenced the petitioner to fifteen years imprisonment pursuant to its previous indication at the plea hearing that it would impose a sentence of between thirteen and eighteen years imprisonment. The petitioner did not file a direct appeal.

On December 18, 2009, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of his trial counsel, Attorney Gary Mastronardi. Specifically, the petitioner claimed that Mastronardi had failed to file a motion to dismiss the charges against the petitioner or, in the alternative, a motion to suppress, after the state did not provide all of the photographic arrays that were shown to the victim, one of which led the victim to identify the petitioner. The petitioner also claimed that Mastronardi failed to investigate and to discover information that could have been used to impeach the state’s evidence. Following a one day trial, the habeas court denied the petition for a writ of habeas corpus. The habeas court subsequently denied the petition for certification to appeal.

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

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . “In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation omitted; internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674-75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

“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. ” (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 124 Conn. App. 740, 743-44, 6 A.3d 152 (2009). “Under . . . Hill . . . the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a habeas petition.” (Internal quotation marks omitted.) Gudino v. Commissioner of Correction, 123 Conn. App. 719, 723-24, 3 A.3d 134, cert. denied, 299 Conn. 905, 10 A.3d 522 (2010). Finally, we note that “[i]n a habeas coipus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis in original; internal quotation marks omitted.) Famum v. Commissioner of Correction, supra, 118 Conn. App. 675.

We first address the petitioner’s claim that Mastronardi was ineffective for failing to file a motion to dismiss the charges, or in the alternative, a motion to suppress the photographic arrays. The petitioner argues that his photograph may have been among the photographs the victim examined on August 15, 2005, from which the victim was unable to identify the second assailant. The police subsequently destroyed the array after the victim could not make an identification. The habeas court rejected this argument, crediting the testimony of John Healy, a police detective, who had shown photographic arrays to the victim on August 15, 2005. Healy testified that he was “100 percent certain that [the petitioner] was not in . . . any of the destroyed arrays.” The habeas court found that Mastronardi’s decision not to file a motion to dismiss or to pursue a motion to suppress the photographic arrays was a tactical decision. The habeas court credited the testimony of Mastronardi that plea offers by the prosecutors were, by custom, time limited and that motions to dismiss or to suppress would be heard at the time of trial, resulting in plea offers being withdrawn by that time. Additionally, the habeas court credited the testimony of Mastronardi that any motion to suppress would likely not be successful and found that the identification procedure that the police later employed that led the victim to identify the petitioner as the second assailant was not suggestive.

The habeas judge is the sole arbiter of the credibility of witnesses and the weight given to their testimony. See Elsey v. Commissioner of Correction, 126 Conn. App. 144, 153, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011). After reviewing the record, we cannot conclude that these findings of fact supporting the habeas court’s determination that Mastronardi’s performance was not deficient were clearly erroneous. We are not persuaded that this determination is debatable among jurists of reason, that a court could resolve the issue differently, or that it deserves encouragement to proceed further. See Farnum v. Commissioner of Correction, supra, 118 Conn. App. 674. Therefore, the habeas court did not abuse its discretion by denying the petition for certification to appeal as to this issue.

Next we address the petitioner’s claim that Mastronardi provided ineffective assistance by failing to investigate and to discover information to impeach the state’s evidence. Specifically, the petitioner alleges that Mastronardi never showed him the statement of Anthony Castle Mayo, in which Mayo said the petitioner admitted to committing the underlying crimes. Here again, the habeas court credited the testimony of Mastronardi, who testified that he had reviewed all witness statements and police reports with the petitioner and that he did not investigate Mayo’s statement to the police because he had no reason to question the veracity of Mayo’s statement, which was very similar to the victim’s account of the crime. As the habeas court appropriately noted, the petitioner did not provide any evidence that any additional investigation by Mastronardi would have aided the defense’s case. The burden to demonstrate the benefit of additional investigation is on the petitioner. Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). Therefore, the petitioner cannot succeed on the prejudice prong of the Strickland test. We are not persuaded that the habeas court’s determination regarding prejudice is debatable among jurists of reason, could be decided differently, or deserves encouragement to proceed further. See Farnum v. Commissioner of Correction, supra, 118 Conn. App. 674. We conclude, therefore, that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner’s first name has been spelled as “Montreal” and “Monteral” during these proceedings.

       Although the petitioner did not provide this court with a signed transcript of the habeas court’s oral decision on his habeas petition; see Practice Book § 64-1 (a); we review the petitioner’s claims because the unsigned transcript adequately reveals the basis for the court’s decision. See, e.g,,Inre Diamond J., 121 Conn. App. 392, 398-99, 996 A.2d 296, cert. denied, 297 Conn. 927, 998 A.2d 1193 (2010).

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner argues in his brief that there was a strong argument that the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that Mastronardi should have argued for a good faith extension of Brady. Because this claim was not made by the petitioner in his amended petition, it is not properly before this court. See Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).

       When Mayo was arrested by the Waterbury police on unrelated charges, he identified the petitioner as one of the assailants in the robbery and assault and told the police that the petitioner had admitted to committing those crimes.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. VANCE SOLMAN
    (AC 32617)
    DiPentima, C. J., and Lavine and Espinosa, Js.
    Argued September 6
    officially released October 25, 2011

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

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and SeanP. McGuinness, deputy assistant state’s attorney, for the state (appellee).
   Opinion

LAVINE, J.

In this case, we are called on to decide whether the petitioner, Vance Solman, has satisfied the threshold requirement of the postconviction DNA testing statute, General Statutes § 54-102kk (a), that “[t]he petitioner shall state under penalties of perjury that . . . the evidence sought to be tested contains biological evidence” in order to obtain DNA testing of evidence in the state’s possession. We agree with the trial court that the petitioner has not satisfied this requirement because he failed to provide sufficient factual support for the contention that the evidence contains biological material.

The petitioner appeals following the denial of his petition for DNA testing of a five .22 caliber bullet, which was found at the scene of the crime that led to his underlying criminal conviction. On appeal, the petitioner claims that the trial court improperly concluded that he failed (1) to satisfy the threshold requirement of § 54-102kk (a) that “the evidence sought to be tested contains biological evidence” and (2) to establish that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results obtained through DNA testing had been available at his criminal trial. We affirm the judgment of the trial court.

Following a jury trial, the petitioner was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 and criminal possession of a firearm in violation of General Statutes (Rev. to 1997) § 53a-217. State v. Solman, 67 Conn. App. 235, 236, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002). On January 15, 1999, the court sentenced the petitioner to a total effective term of forty years imprisonment. The petitioner directly appealed to this court, and this court affirmed his conviction. Id., 243.

The jury reasonably could have found the following facts. “In September, 1997, the victim and his wife were employed at a McDonald’s restaurant in Branford and became acquainted with the [petitioner], who was employed at a nearby Mobil gas station. The [petitioner’s] nephew also was employed at the Mobil station and became friendly with the victim’s wife. That friendship eventually progressed to the point where the victim felt that it was necessary to intervene and, accordingly, he told the [petitioner’s] nephew to leave his wife alone. The victim’s brother-in-law also confronted the nephew and recommended a curtailment of the relationship.

“Shortly after midnight, on September 24, 1997, as he lay in bed with his wife and child, the victim heard a loud banging at the back door of their apartment. The victim walked to the kitchen to investigate the disturbance when the [petitioner] burst through the door and shot the victim several times before fleeing. Ten .22 caliber shell casings were found at the scene along with a live round. The [petitioner] was apprehended thereafter . . . .” Id., 236-37.

On June 3, 2010, the petitioner filed a postconviction petition for DNA testing of the live .22 caliber bullet recovered from the crime scene, pursuant to § 54-102kk. The petitioner alleged that the bullet was in evidence, it was capable of being subjected to DNA testing, it had not previously been subjected to DNA testing, and there was a reasonable probability that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing of the bullet.

On June 30, 2010, the trial court held a hearing on the petition, during which counsel for the petitioner explained that the petitioner was seeking “touch DNA” testing of the bullet to support his claim that the petitioner’s nephew had committed the shooting, rather than the petitioner. Counsel for the petitioner described touch DNA testing as “a procedure for testing really microscopic DNA evidence.” Counsel further explained that “[w]hen human beings touch objects, we leave skin cells on those objects.”

At the hearing, however, the petitioner stipulated that it was unlikely that the bullet actually contained any testable biological material. The stipulation submitted by the parties stated in relevant part: “(5) It is possible that DNA evidence could be obtained from the live .22 caliber bullet that is in evidence. (6) There is a low probability that DNA evidence could be obtained from the live .22 caliber bullet that is in evidence. (7) There is a high probability that any relevant DNA evidence from the live .22 caliber bullet has been contaminated.” Counsel for the petitioner stated on the record that the stipulation was based on information provided by a criminalist in the state police forensic science laboratory.

Throughout the hearing, the court stated it was concerned that the petitioner failed to satisfy subsection (a) of § 54-102kk. Counsel for the petitioner responded by arguing that the statute does not require petitioners to “say [with] absolute certainty” that the evidence contains biological material because that would be impossible to establish without first conducting a DNA test of the evidence, and such a requirement would defeat the purpose of the statute. Instead, the petitioner contended that § 54-102kk (a) requires merely that the petition be filed in good faith. The court stated that it was satisfied that the petition was filed in good faith but explained that it would have to “research whether I feel that it has to be established that the item contains biological evidence before I can proceed.”

On July 6, 2010, the court denied the petition for DNA testing of the bullet. The order stated in relevant part: “ [The] [p] etitioner fails to satisfy the statutory condition that ‘the evidence sought to be tested contains biological evidence.’ Here, there is no evidence that the bullet contains biological evidence; only a ‘possibility’ that biological evidence could be obtained; and a ‘high probability’ that any such evidence obtained would be contaminated. ... If the above stated statutory language is to have any meaning, this petition must fail.” (Citation omitted.)

On appeal, the petitioner claims that the court erroneously concluded that he failed to satisfy § 54-102kk (a). The petitioner argues that, contrary to the trial court’s analysis, § 54-102kk (a) merely requires that “petitions must be accompanied by statements under oath that the petitions are being filed in good faith.” As a matter of first impression, we disagree with the petitioner that § 54-102kk (a) requires only a good faith assertion that the evidence contains biological material and conclude that the petition must be supported by a reasonable basis in fact. Accordingly, we conclude that the petitioner failed to satisfy this standard in light of the parties’ stipulation.

The petitioner’s claim “presents a question of statutory construction, over which our review is plenary. . . . 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 .... 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. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. ... In addition, common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Citations omitted; internal quotation marks omitted.) Komondy v. Zoning Board of Appeals, 127 Conn. App. 669, 676, 16 A.3d 741 (2011).

We begin our analysis with the language of the statute. Section 54-102kk (a) provides: “Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner’s conviction and that the evidence sought to be tested contains biological evidence.” (Emphasis added.) Subsections (b) and (c) delineate the substantive requirements that a petitioner must meet in order to actually obtain DNA testing, namely, establishing that there is a “reasonable probability” that the petitioner would not have been prosecuted or convicted, or that the verdict or sentence would have been different, if the testing had been conducted before trial. See State v. Dupigney, 295 Conn. 50, 64, 988 A.2d 851 (2010) (construing “ ‘reasonable probability’ ” requirement under § 54-102kk [b] [1] to mean “a probability sufficient to undermine confidence in the outcome” of the underlying conviction).

The petitioner contends that § 54-102kk (a) cannot be read to require petitioners “to state under oath that microscopic biological material is definitely present on particular evidence . . . .” According to the petitioner, this requirement would frustrate the purpose of the statute, which “is to provide a mechanism to allow inmates to obtain DNA testing of biological evidence to prove they are innocent.” The petitioner argues that because subsections (b) and (c) already contain substantive requirements for obtaining DNA testing, an additional condition mandating scientific certainty would impose too high a bar on petitioners and, thus, could not have been intended by the legislature. Additionally, the petitioner argues that such a requirement would encourage perjury because a petitioner would not be able to guarantee that evidence contains biological material prior to the actual DNA test, especially when seeking touch DNA testing. Rather, the petitioner argues that § 54-102kk (a) simply requires that the petitions be filed in good faith. The state argues that the statute clearly and unambiguously requires that the petitioner provide a threshold statement that the evidence contains biological material, which, according to the state, the petitioner failed to do.

As directed by § l-2z, we must determine whether the language of § 54-102kk (a) is plain and unambiguous and does not lead to unworkable results. As a preliminary matter, we find that the language of § 54-102kk (a) is susceptible to more than one reasonable interpretation. It is unclear from the face of the statute whether, for example, a petitioner satisfies this requirement by simply stating that the petitioner has a good faith belief that biological material is present; by stating that the petitioner is certain that biological material is definitely present; or by making some preliminary showing supported by facts. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011) (noting “the relatively low threshold necessary to establish ambiguity for purposes of statutory interpretation, namely, the existence of more than one ‘reasonable’ reading for the statute”). Therefore, in accordance with § l-2z, we may consider extratextual guidance in our search to ascertain the meaning of the statute.

In light of principles of statutory construction and the legislative policy behind § 54-102kk, we conclude that the petitioner’s proposed good faith standard could not have been intended by the legislature. It is axiomatic that “the legislature did not intend to enact meaningless provisions. . . . Accordingly, care must be taken to effectuate all provisions of the statute. . . . [Statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Zoning Board of Appeals v. Freedom of Information Commission, 66 Conn. App. 279, 285, 784 A.2d 383 (2001). The petitioner’s good faith standard would reduce the language of § 54-102kk (a) requiring that “the evidence sought to be tested contains biological evidence” to mere surplusage. We conclude that by including this language, the legislature intended to create a requirement that there be a factual basis to conclude that biological material is present on the evidence prior to testing. A good faith standard creates an insufficient threshold.

In State v. Dupigney, supra, 295 Conn. 64-67, our Supreme Court, in construing § 54-102kk (b) (1), identified the various policy interests related to the statute. After explaining that the statute was enacted as part of a broader piece of legislation “intended to use DNA testing both to better identify and punish offenders as well as to prevent wrongful convictions”; id., 64-65; the court linked the statute to a “nationwide movement”; id., 65; of postconviction DNA testing legislation. Id., 65-66. The court noted that, in order to “reconcile . . . competing interests, legislatures have imposed various threshold showings . . . .’’Id., 67. Among the important state interests that conditioning access to DNA evidence serves are “respect for the finality of court judgments and the efficient use of limited state resources.” Id., 66. The interest in the efficient use of state resources is especially applicable in a situation like this case, where the petitioner seeks touch DNA testing of a physical object recovered from the crime scene. We agree with the trial court that a standard like the one the petitioner proposes would deprive the statute of meaning and would require that virtually every piece of evidence in the state’s possession be subjected to DNA testing, provided the petitioner could satisfy subsection (b) or (c) of § 54-102kk. See footnote 4 of this Opinion.

We agree with the petitioner, however, that a construction of the statute requiring petitioners to state with certainty that the evidence sought to be tested contains biological material would lead to unworkable results and, thus, also could not have been intended by the legislature. It would be impossible for petitioners to be sure that biological material is present without conducting an extensive inquiry. Accordingly, petitioners willing to risk perjury would satisfy § 54-102kk (a), while honest petitioners would not. Therefore, “[mjindful that we must avoid a construction that fails to attain a rational and sensible result”; Komondy v. Zoning Board of Appeals, supra, 127 Conn. App. 683; we reject a construction that would require petitioners to state that biological material is incontrovertibly present. We recognize, in light of the purpose of the statute, that the threshold requirement of § 54-102kk (a) should not be unduly demanding.

In accordance with the above analysis, we conclude that in order to satisfy § 54-102kk (a), a petitioner must make a preliminary showing supported by a reasonable basis in fact that the evidence sought to be tested likely contains biological material. We trust our trial courts to evaluate the facts and circumstances presented on a case-by-case basis.

Applying this standard to the present case, we conclude that the petitioner falls short. As noted, the stipulation submitted by the parties to the trial court stated that “[t]here is a low probability that DNA evidence could be obtained from the live .22 caliber bullet that is in evidence” and “a high probability that any relevant DNA evidence from the live .22 caliber bullet has been contaminated.” While the stipulation was based on information provided by someone knowledgeable as to DNA evidence, the contents of the statements provide inadequate support for the assertion that the bullet contains biological material which could be tested for DNA, as required by § 54-102kk (a).

To the extent that the petitioner argues that there is a possibility that the bullet contains biological material because the bullet had to have been touched by someone; see footnote 4 of this opinion; we note that a petitioner’s contention “must rest upon more than surmise or conjecture. ... A trier is not concerned with possibilities but with reasonable probabilities.” (Internal quotation marks omitted.) Milliun v. New Milford Hospital, 129 Conn. App. 81, 100, 20 A.3d 36, cert. granted on other grounds, 302 Conn. 920, 28 A.3d 338 (2011); see also Curran v. Kroll, 118 Conn. App. 401, 410, 984 A.2d 763 (2009) (“[i]nferences should be based on probabilities, not possibilities, surmise, or conjecture” [internal quotation marks omitted]), cert. granted on other grounds, 295 Conn. 915, 990 A.2d 866 (2010); Daigles. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 469, 760 A.2d 117 (2000) (“[i]n assessing damages in a tort action, the trier is not concerned with possibilities but with reasonable probabilities” [internal quotation marks omitted]), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). We therefore conclude that the trial court properly determined that the petitioner failed to satisfy § 54-102kk (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       If a petitioner satisfies subsection (a) of § 54-102kk, then the petitioner also must satisfy either subsection (b) or subsection (c) to be entitled to DNA testing of the evidence.

       Because we affirm the court’s finding that the petitioner did not satisfy the threshold requirement of § 54-102kk (a), we need not address the petitioner’s second claim.

       A stipulation entered into by the petitioner and the state also described touch DNA testing as follows: “(1) ‘Touch DNA’ testing involves the testing of biological evidence sometimes left on objects when someone touches an object. (2) The Connecticut State Police Forensic Science Laboratory has had the technology to conduct ‘touch DNA’ testing since 1998. (3) The Connecticut State Police Forensic Science Laboratory has been authorized to conduct ‘touch DNA’ testing for cases since 1999. (4) The law enforcement community started routinely requesting ‘touch DNA’ testing in the last [eighteen] months to two years . . . .”

       Counsel for the petitioner also argued that because there was “no real dispute that someone touched [the bullet] and at least a reasonable probability or some possibility that there is DNA material on it, I think that, that satisfies the statutory requirement . . . .” The trial court responded: “Well, wouldn’t that be true of just about every piece of evidence at the scene of a crime, that it’s a possibility that somebody would have had touching that would result in biological evidence?”

       The court also denied the petition on the ground that “even if ‘touch DNA’ evidence was obtained consistent with the DNA of [the] petitioner’s nephew (the alleged, real perpetrator according to the petitioner), such evidence would not ‘undermine confidence in the outcome’ of the trial; State v. Dupigney, 295 Conn. 50, 64 [988 A.2d 851] (2010)”; because “the trial evidence of [the] petitioner’s guilt was overwhelming” and “evidence that [the] petitioner’s nephew handled the ammunition in some capacity would not be inconsistent with the state’s evidence that [the] petitioner did the shooting.” As previously noted, we do not address this portion of the court’s order because we affirm its judgment on the basis of the petitioner’s failure to satisfy the threshold requirement of § 54-102kk (a).

       We note that Texas has established a similar standard in construing its postconviction DNA testing statute. See Vollemans v. Wallingford, 103 Conn. App. 188, 196, 928 A.2d 586 (2007) (“[w]here the meaning of a statute is in doubt, reference to legislation in other states and jurisdictions which pertains to the same subject matter, persons, things, or relations may be a helpful source of interpretative guidance” [internal quotation marks omitted]), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).
      In Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010), the Texas Court of Criminal Appeals construed article 64.01 (a) of the Texas Code of Criminal Procedure, which provides in relevant part: “A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.” The court first noted that “[a] literal reading of the statute unequivocally mandates that all evidence to be tested must first be proven to contain biological material.” Swearingen v. State, supra, 732. The court recognized, however, that such a reading “could lead to the deprivation of DNA testing in the rare case simply because of the inability to ascertain whether or not biological material exists.” Id. The court then stated that an appellant must “provide facts in support of his motion”; id.; and that “a mere assertion or a general claim that existence of biological material is probable will fail to satisfy the appellant’s burden.” Id. In concluding that the appellant did not satisfy this standard, the court noted that “no expert testimony or scientific data was presented to support the conclusion that DNA would necessarily be deposited through grasping with strong force.” Id., 733. Although the language of the Texas statute at issue in Swearingen is different from § 54-102kk, we find the court’s analysis pertinent.

       Counsel for the petitioner stated that the information contained in the stipulation was obtained from “one of the criminalist[s] that handles the DNA testing at the state police crime lab . . . .”


author: Per Curiam.

text:
    SAWGRASS IND. CORPORATION ET AL. v. LAURA Z. SCHWARTZ
    (AC 32387)
    Robinson, Espinosa and Bishop, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The judgment is affirmed.


text:
    DWAYNE GRIFFIN v. COMMISSIONER OF CORRECTION
    (AC 31570)
    Robinson, Espinosa and Bishop, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The appeal is dismissed.


text:
    ANTHONY T. GRANT v. COMMISSIONER OF CORRECTION
    (AC 32757)
    Robinson, Espinosa and Bishop, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The appeal is dismissed.


text:
    VANESSA G. VARGAS v. FRANCISCO A. SPIGNOLIO
    (AC 32326)
    Bear, Espinosa and SchaUer, Js.
    Argued September 9
    officially released September 27, 2011
   Per Curiam.

The appeal is dismissed.


text:
    MELVIN MITCHELL v. COMMISSIONER OF CORRECTION
    (AC 31851)
    DiPentima, C. J., and Bishop and Dupont, Js.
    Argued September 8
    officially released September 27, 2011
   Per Curiam.

The appeal is dismissed.


text:
    CRAIG POYSER v. COMMISSIONER OF CORRECTION
    (AC 32322)
    DiPentima, C. J., and Gruendel and Beach, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The judgment is affirmed.


text:
    SANDRA L. CHAMPION-INZERO v. JAMES J. INZERO
    (AC 33103)
    Lavine, Alvord and Bear, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The judgment is affirmed.


text:
    HSBC BANK USA, NATIONAL ASSOCIATION, TRUSTEE (NAAC 2007-2) v. DAHILL DONOFRIO ET AL.
    (AC 32042)
    DiPentima, C. J., and Beach and Peters, Js.
    Argued September 12
    officially released September 27, 2011
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    STATE OF CONNECTICUT v. ALFRED REA
    (AC 31867)
    Gruendel, Lavine and Mihalakos, Js.
    Argued September 12
    officially released September 27, 2011
   Per Curiam.

The judgment is affirmed.


text:
    LEON BELL v. COMMISSIONER OF CORRECTION
    (AC 31818)
    Lavine, Alvord and Bear, Js.
    Submitted on briefs September 9
    officially released September 27, 2011
   Per Curiam.

The appeal is dismissed.


text:
    KEVIN VERTEFEUILLE v. COMMISSIONER OF CORRECTION
    (AC 32491)
    Robinson, Alvord and West, Js.
    Argued September 13
    officially released October 11, 2011
   Per Curiam.

The appeal is dismissed.


text:
    CITIBANK (SOUTH DAKOTA) N.A. v. JOAN A. WELCH
    (AC 32394)
    Lavine, Espinosa and Borden, Js.
    Submitted on briefs September 20
    officially released October 11, 2011
   Per Curiam.

The judgment is affirmed.


text:
    U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v. JOAN A. BOWEN ET AL.
    (AC 32366)
    Lavine, Espinosa and Borden, Js.
    Submitted on briefs September 20
    officially released October 11, 2011
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    TIMOTHY TOWNSEND, JR. v. SANDRA SAVAGE ET AL.
    (AC 32611)
    DiPentima, C. J., and Gruendel and Lavine, Js.
    Argued September 23
    officially released October 18, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ANTHONY CARTER v. COMMISSIONER OF CORRECTION
    (AC 32035)
    Lavine, Bear and Schaller, Js.
    Argued September 16
    officially released October 18, 2011
   Per Curiam.

The appeal is dismissed.


text:
    RUTH REALTY, LLC v. LEO D’ADDONA ET AL.
    (AC 32938)
    Espinosa, Bishop and Foti, Js.
    Argued September 19
    officially released October 18, 2011
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA ROBINSON v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES ET AL.
    (AC 32920)
    Espinosa, Bishop and Foti, Js.
    Argued September 19
    officially released October 18, 2011
   Per Curiam.

The judgment is affirmed.


text:
    MALGORZATA D. TARASIUK v. JACEK TARASIUK
    (AC 32828)
    DiPentima, C. J., and Robinson and Bishop, Js.
    Argued September 20
    officially released October 18, 2011
   Per Curiam.

The judgment is affirmed.