text:
    Leroy Miller v. Commissioner of Correction
    (11093)
    Daly, Foti and Heiman, Js.
    Argued October 26
    decision released December 22, 1992

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords and Michael Dearington, state’s attorneys, James Turcotte, assistant state’s attorney, and Christopher Alexy, deputy assistant state’s attorney, for the appellant (respondent).

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellee (petitioner).
   Heiman, J.

The commissioner of correction (commissioner) appeals from the judgment of the habeas court granting the petitioner’s habeas corpus petition and remanding the case to the Superior Court with direction that the petitioner be permitted to withdraw his previously entered plea of guilty. After receiving certification from the habeas court, the commissioner appeals claiming that the remedy ordered by the habeas court was improper and that the proper remedy should be limited to an order in the nature of specific performance of the plea agreement that was breached. We disagree that the remedy ordered by the habeas court was improper and affirm the judgment.

The following facts are necessary to a resolution of this appeal. On May 24, 1989, the petitioner, Leroy Miller, entered a guilty plea to a single count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). At the time that the plea of guilty was entered, the state’s attorney advised the court that a plea agreement had been reached and the state would recommend a sentence as follows: “[A] period of time to be suspended after fifteen years, that fifteen years being [in] the nature of a cap with the right of counsel to argue for a lesser period of incarceration. A three year probation and the amount of time to be suspended over the defendant’s head will be some four years.” After a full canvass of the plea, including notice by the trial court that, if it imposed a sentence in excess of the plea agreement, the petitioner would be permitted to withdraw his guilty plea, the trial court, Ronan, J., accepted the plea and entered a finding of guilty.

On July 7, 1989, the trial court sentenced the petitioner to the custody of the commissioner of correetion for a period of seventeen and one-half years, which was to be suspended after thirteen and one-half years, and thereafter ordered that the petitioner be placed on probation for a period of four years. Although the period of probation exceeded the period provided for in the plea agreement, the trial court failed to offer the petitioner an opportunity to withdraw his plea of guilty. Defense counsel made no objection to the fact that the period of probation imposed by the trial court exceeded by one year the period set forth in the plea agreement, nor did the petitioner raise any objection to the sentence at that time.

By petition dated July 28, 1989, the petitioner sought a writ of habeas corpus alleging that his plea of guilty was accepted without substantial compliance with Practice Book § 711, and that the sentence imposed exceeded that specified in a plea agreement. The petitioner claimed as relief that he be permitted to withdraw his plea of guilty. On March 26, 1991, the petitioner filed an amended complaint. In that complaint, the petitioner claimed in the first count that he pleaded guilty on the advice of counsel, that he believed that he would receive a total effective sentence not to exceed fifteen years, that his attorney had not properly investigated the facts or the evidence against him and that his guilty plea and admissions were not knowing, intelligent and voluntary. In the second count of his complaint, the petitioner claimed the ineffective assistance of counsel by reason of counsel’s improper investigation and his misadvice to the petitioner. In the third count, the petitioner claimed that the attorney whom he had retained was not present at sentencing, that he requested a continuance which was denied and that the attorney from the office of his retained attorney was not prepared to represent him properly.

The habeas court held a full evidentiary hearing and found that the petitioner had been sentenced in a manner inconsistent with the plea agreement, namely, to a term of probation for a period of four years when the plea agreement reflected that a three year period of probation was to be imposed. On the basis of the fact that the plea agreement had been breached, the habeas court granted the petition and remanded the case to the trial court with direction that the petitioner be afforded his right to withdraw his guilty plea. The habeas court did not address the second or third counts of the petition.

The commissioner sought and received certification from the habeas court on the issue of whether the proper remedy is to remand this case for the petitioner to be resentenced in accordance with the terms of the original plea agreement. This appeal followed.

The state does not contest the correctness of the judgment of the habeas court finding that the petitioner was entitled to the issuance of the writ. It limits its appeal to the claim that the remedy afforded, permitting the petitioner to withdraw his plea of guilty, was improper. The state posits that the proper remedy should be limited to specific performance, giving the petitioner the exact plea agreement for which he bargained, a limit of the probationary period to three years. We do not agree that this is the exclusive remedy available to the petitioner.

We have long recognized that plea agreements are an essential and necessary part of the due administration of criminal justice. State v. Nelson, 23 Conn. App. 215, 218, 579 A.2d 1104, cert. denied, 216 Conn. 826, 582 A.2d 204 (1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248 (1991); see also Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). While plea agreements are an essential part of the disposition of criminal cases, the right, duty and discretion of the trial judge to fashion an appropriate sentence in each case cannot be undermined by a plea agreement entered into between the parties. See State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986). Thus, while the state may bind itself to make a specific recommendation with respect to a criminal disposition, neither the state nor the defendant, nor a combination thereof, may compel the trial court to accept a suggested disposition arrived at between the parties. Id.

It is undisputed that the sentence imposed concerning the period of probation to be served by the petitioner after the suspension of the period of incarceration exceeded the plea agreement. A period of probation imposed in conjunction with a fully suspended sentence or to commence after the service of a period of incarceration is a criminal sentence with serious consequences to the probationer including restrictions on the probationer’s life-style, activities, associations and freedom of movement. State v. Reid, 204 Conn. 52, 55-56 526 A.2d 528 (1987); see also United States v. Kamer, 781 F.2d 1380, 1387-88 (9th Cir.), cert. denied, 479 U.S. 819, 107 S. Ct. 80, 93 L. Ed. 2d 35 (1986). Here, the sentencing judge did not implement the plea agreement when he ordered a period of probation that exceeded the period set forth in the plea agreement.

“When a guilty plea is induced by promises arising out of a plea bargaining arrangement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.” (Citations omitted; internal quotation marks omitted.) State v. Niblack, 220 Conn. 270, 283, 596 A.2d 407 (1991); State v. Reid, supra, 58-59; see also State v. Schaeffer, 5 Conn. App. 378, 389, 498 A.2d 134 (1985). Our Practice Book § 698 also provides in pertinent part that “[i]f the judicial authority rejects the plea agreement, he shall inform the piarties of this fact; advise the defendant personally in open court . . . that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw his plea, if given; and advise the defendant that if he persists in his guilty plea . . . the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” Where the word “shall” is employed in criminal procedural rules, it indicates that the requirements that follow are mandatory rather than directory. State v. Somerville, 214 Conn. 378, 387, 572 A.2d 944 (1990); State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981). The failure of the trial court to follow the mandatory provisions of the rules of criminal procedure constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).

Thus, under these circumstances, the trial court “has an affirmative mandatory obligation, prior to the imposition of sentence, to tell the defendant that it will not accept the recommendation and to afford the defendant an opportunity to withdraw his plea.” State v. Schaeffer, supra; see also State v. Reid, supra, 58. The failure of the trial court to afford this protection to the petitioner deprives him of the constitutionally guaranteed right to understand fully the consequences of his plea as a part of ensuring that the plea is voluntarily made. State v. Schaeffer, supra, 390.

As we have said, the trial court failed to follow the recommendation of the parties with regard to the sentence to be imposed and further failed to follow the mandate of the rules of practice that the defendant be afforded the opportunity to withdraw his guilty plea. See Practice Book § 697. The trial court is obligated to provide the mechanism for the defendant to withdraw his plea and there is no affirmative obligation placed on the defendant to make a motion to withdraw the plea after the imposition of a sentence that does not comport with the plea agreement. State v. Schaeffer, supra, 391.

The state posits that justice can be accomplished by a remand and order that the petitioner be afforded the benefit of his plea agreement, an order in the nature of specific performance. To accept this suggestion implies that we, rather than the trial court, would thus determine the proper sentence to be imposed. This argument fails to consider that the trial court, by not following the recommendation agreed upon for the period of probation, implicitly rejected the plea agreement, as it had an absolute right to do. Id.; Practice Book § 694. The imposition of an appropriate sentence is the function of the trial court, and not our function. See State v. Schaeffer, supra, 390. In this case, the trial court implicitly rejected the nonbinding plea agreement by failing to follow its parameters involving the period of probation. It did so without following the mandate of Practice Book § 698 that where the trial court elects to reject the recommendation, it must advise the defendant and apprise the defendant of the sentence that it would be inclined to impose. Id. The defendant must be afforded an opportunity to withdraw his guilty plea because otherwise, a full understanding of the consequences of the plea and the rejection of the plea agreement would be absent. Id.

Since the failure to comply with Practice Book § 698 impacts on a mandatory requirement of criminal practice, it follows that the only appropriate remedy is to place the petitioner in the position that he would have been in had the requirements of Practice Book § 698 been met. The petitioner must therefore be afforded the opportunity to withdraw his plea. Id., 391.

The judgment of the habeas court is affirmed.

In this opinion the other judges concurred.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       The recommendation by the state for a specific sentence is a plea agreement subject to Practice Book § 698, even where the defendant reserves the right to argue for the imposition of a lesser penalty. Blue v. Robinson, 173 Conn. 360, 363-65 n.1, 377 A.2d 1108 (1977).

       Our Supreme Court’s holding in State v. Reid, 204 Conn. 52, 526 A.2d 528 (1987), and our holding in State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985), are not logically inconsistent. In fact, in State v. Reid, supra, 58, the Supreme Court cited with approval this court’s holding in State v. Schaeffer, supra. These cases are distinguishable in three respects. On appeal, the parties in State v. Reid, supra, and State v. Schaeffer, supra, sought different remedies. In State v. Reid, supra, 54, the defendant sought to have the Supreme Court vacate the Superior Court’s decision and order the case to be remanded with directions to impose on the defendant an effective sentence of time served. In State v. Schaeffer, supra, 381, as in the case before us, the remedy sought by the defendant was withdrawal of his plea of guilty. It is well established that we decide cases on the theories on which they were tried and decided in the trial court, and briefed and argued in this court. Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 747, 592 A.2d 397, cert. dismissed, 226 Conn. 902, 593 A.2d 968 (1991); Carley v. Lumbermens Mutual Casualty Co., 10 Conn. App. 135, 141, 521 A.2d 1053 (1987); State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). The cases are also distinguishable in their treatment of the role of the Appellate Court in deciding the appeal. In State v. Reid, supra, the defendant failed to argue that the Supreme Court’s imposition of the remedy that he actually sought would usurp the function of the trial court’s discretion. In fact, the defendant encouraged the Supreme Court to impose the plea agreement. In the case before us, the defendant has argued that this court’s imposition of a remedy in the nature of specific performance would usurp the function of the trial court and subvert its discretion. See footnote 6, infra; see also State v. Schaeffer, supra, 390 (“imposition of an appropriate sentence is the function of the court regardless of the bargain of the parties”). The cases are further distinguishable in their discussion of the relevant rules of practice. The parties in State v. Reid, supra, did not brief the relevant rules of practice. In State v. Schaeffer, supra, 381, as in the case before us, the defendant discussed the relevant rules of practice in arguing that withdrawal of his plea of guilty was the appropriate remedy.

       Practice Book § 697 provides: “If the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his plea in accordance with Sec. 719.”

       Practice Book § 694 provides in pertinent part: “If a plea agreement has been reached by the parties, which contemplates the entry of a plea of guilty . . . the judicial authority shall require the disclosure of the agreement in open court .... Thereupon the judicial authority may accept or reject the agreement, or he may defer his decision on acceptance or rejection until there has been an opportunity to consider the presentence report, or he may defer it for other reasons.”

       Even if we were convinced that the recommended sentence was appropriate and just, we would still be unable to direct the trial court to impose that sentence. Such action on our part would represent the most flagrant substitution of our judgment for that of the trial court and would further be an unwarranted incursion into an area that is peculiarly within the discretion of trial judges. See State v. Schaeffer, 5 Conn. App. 378, 390-91, 498 A.2d 134 (1985). It is for the trial judge to decide what an appropriate sentence is to be, and not for us to dictate whether a plea agreement should be accepted or rejected.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Lawrence Persico
    (11104)
    Foti, Heiman and Freedman, Js.
    Argued December 1
    decision released December 29, 1992

      Edward R. Giacci, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcia B. Smith, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue raised in this appeal is whether the trial court’s finding of facts is sufficient to support the conclusion that the police were justified in making a warrantless arrest because of the existence of exigent circumstances was clearly erroneous. See State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).

One of the tests to be applied in making a determination of whether exigent circumstances exist for the making of an arrest without a warrant is whether a reasonable, well trained police officer would believe that if an immediate arrest is not made, the accused might endanger the safety or property of others. State v. Scott, 27 Conn. App. 403, 409, 606 A.2d 720, cert. denied, 222 Conn. 911, 608 A.2d 1184 (1992).

Our careful examination of the record, briefs and transcripts leads us to conclude that the trial court’s finding of facts is sufficient to conclude that exigent circumstances existed to justify the warrantless arrest of the defendant was not clearly erroneous.

The judgment is affirmed.


author: Daly, J.

text:
    O and G Industries, Inc. v. Town of New Milford
    (11048)
    Daly, Foti and Landau, Js.
    Argued October 27
    decision released December 29, 1992

      George C. Hastings, with whom was David J. Sheldon, for the appellant (defendant).

      Robert L. Trowbridge, for the appellee (plaintiff).
   Daly, J.

The defendant town of New Milford appeals from the trial court’s judgment in favor of the plaintiff subcontractor, O and G Industries, Inc., for damages incurred when the general contractor hired and paid by the defendant failed to pay the plaintiff before filing bankruptcy. The plaintiff had alleged that the defendant was liable in tort because it failed to secure a payment bond pursuant to General Statutes § 49-41.

The following facts are not disputed. On May 1,1990, the defendant informed Austin Driveway Services, Inc., the general contractor, that it was the successful bidder on a paving contract for public roads and parking lots in New Milford. The general contractor hired the plaintiff to supply materials for the paving operation. After the defendant paid the general contractor in full, the general contractor filed for bankruptcy without having paid the plaintiff the amount owed on the materials the plaintiff had supplied. A payment bond was never furnished by the general contractor to protect the plaintiff. The plaintiff brought suit against the town of New Milford and both parties moved for summary judgment. The trial court rendered judgment in favor of the plaintiff in the amount of $93,334.95 plus interest.

The sole issue before us is whether § 49-41 imparts a ministerial duty on a municipality to obtain a payment bond from a general contractor hired to perform a public project. We find that it does not.

This is an issue of first impression in Connecticut. “This court reviews the propriety of a summary judgment by examining whether ‘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.’ Practice Book § 384; Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn. App. 180, 182, 579 A.2d 578 (1990). The evidence is viewed in the light most favorable to the opponent of the summary judgment. Id., 185.” Ditchkus Real Estate Co. v. Storm, 25 Conn. App. 51, 53, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). We find that, as a matter of law, the plaintiff was not entitled to prevail.

“When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990), quoting State v. White, 204 Conn 410, 421, 528 A.2d 811 (1987).” (Internal quotation marks omitted.) Beizer v. Goepfert, 28 Conn. App. 693, 698, 613 A.2d 1336 (1992). The language of § 49-41 is not ambiguous. It does not place a duty on the defendant to ensure that the general contractor furnishes the payment of the bond.

Other jurisdictions agree. “A majority of states, with statutes similar to ours, hold that a subcontractor is precluded from recovery against a public body when he fails to ascertain if a bond is given.” Greenville Independent v. B & J Excavating, 694 S.W.2d 410, 414 n.1 (Tex. Ct. App. 1985). These jurisdictions have concluded that while a general contractor is required to furnish a payment bond to protect the subcontractor’s interests under the bond statute, the government body involved in the contract and its officials are not required to compel the general contractor to furnish the payment bond. It follows that a government body’s failure to do so does not give rise to a cause of action against it by the subcontractor. See id., 414; see also Penstan Supply Inc. v. Pennsylvania State University, 44 Pa. Commw. 347, 403 A.2d 1054 (1979). We are inclined to follow the majority rule.

In its memorandum of decision, the trial court recognized that there are no Connecticut cases directly on point, and therefore relied on Royal School Laboratories, Inc. v. Watertown, 236 F. Sup. 950 (D. Conn.), rev’d on other grounds, 358 F.2d 813 (2d Cir. 1966), a case also involving the failure of a general contractor to furnish a payment bond to protect its subcontractor. The court addressed this issue and, in so doing, reviewed the history of § 49-41. In 1941, the legislature modified the wording of the statute to its present form: “Before any contract ... is awarded to any person, such person shall furnish ... a bond in the amount of the contract . . . .” General Statutes (1941 Sup.) § 694f. Before this modification, the statute provided: “Any officer or agent contracting on behalf of any [town] . . . shall require from each contractor, as a condition precedent to the execution of a contract . . . a bond for sufficient surety . . . for the payment of [laborers and material suppliers].” General Statutes (1930 Rev.) § 5109.

The District Court was not persuaded that the legislature’s modification of that statute rendered the duty of the municipality and its public officials no longer mandatory. Royal School Laboratories, Inc. v. Watertown, supra, 236 F. Sup. 954. The court acknowledged that the majority view, which asserts that the failure of a municipality and its public officials to procure a payment bond from a contractor pursuant to the statute, does not cause them to be liable to subcontractors for work performed or materials provided to the contractor. See id., 953. The District Court nevertheless opted to follow the minority rule which imposes a mandatory duty to obtain a payment bond, and judgment was rendered accordingly.

The Court of Appeals for the Second Circuit disagreed with the District Court’s conclusion that the adoption of the minority rule by Connecticut was probable. Royal School Laboratories, Inc., v. Watertown, 358 F.2d 813, 816 (2d Cir. 1966). The Second Circuit ultimately determined that this was an issue for Connecticut courts to resolve and reversed the district court’s decision on another ground, involving inter-pleader. Id., 816-17. We do not find the District Court’s opinion in Royal School Laboratories, Inc., persuasive.

In contrast to the District Court’s opinion, the Michigan Appellate Court has held that a statute virtually identical to § 49-41 requires the general contractor to furnish the bond but does not place a duty on the governmental unit to ensure that the bond is furnished. Barnes & Sweeney Enterprises, Inc. v. Hazel Park, 169 Mich. App. 422, 425 N.W.2d 572 (1988). “While the importance of this semantic difference may not at first appear clear, the importance becomes more obvious when the predecessor statute is examined.” Id., 425-26. “[I]n enacting the current statutory scheme, the Legislature chose not to include the language of the predecessor statute which imposed a duty upon the governmental body to require the bond. Rather . . . the language of the current statute places the duty to furnish the bond on the contractor. We believe that this change in language reflects an intent by the Legislature to remove any duty on the governmental unit and place it upon the contractor.” Id., 426.

The semantic differences in the two versions of Connecticut’s bond statute are just as revealing. Like the Michigan statute, General Statutes § 49-41 does not impose a duty on the municipality or its officers to ensure that a payment bond has been furnished. Rather, the legislature intended the statute to require the general contractor to “furnish to the state or the subdivision a bond in the amount of the contract.”

Federal courts considering cases under the Miller Act have drawn similar conclusions. There is no indication that the legislature intended to create a statute any different from that of the Congress of the United States in enacting the Miller Act, 40 U.S.C. §§ 270a-270e.” Baldwin-Lima-Hamilton Corporation v. Aetna Casualty & Surety Co., 163 Conn. 331, 337, 307 A.2d 169 (1972), cert. denied, 409 U.S. 1109, 93 S. Ct. 910, 34 L. Ed. 2d 689 (1973). Both acts serve the same purpose, set forth practically the same procedures, and share almost identical language. Id., 337-38. Thus, “[bjecause § 49-41 is intended to operate in general conformity with the federal statutes popularly known as the Miller Act, 40 U.S.C. §§ 270a through 270e; Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 476 n.7, 542 A.2d 692 (1988); Internal Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 331-33, 197 A. 2d 638 (1964); we look to the interpretation of the federal statute for guidance.” L. Suzio Concrete Co. v. New Haven Tobacco, Inc., 28 Conn. App. 622, 629, 611 A.2d 921 (1992) (relying on case law related to the Miller Act to determine the definition of “public work” under § 49-41).

The United States Court of Appeals for the Seventh Circuit has applied the Miller Act to a similar set of circumstances as the present case. Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287 (7th Cir. 1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Two subcontractors brought suit under the Miller Act for reimbursement from the United States for the materials and labor provided to the general contractor on a paving contract with the United States. The court determined that the Miller Act requires only that contractors obtain performance and payment bonds. The statute places no affirmative obligation on the government to secure a payment bond and says absolutely nothing about what happens when the contractor fails to furnish the bond. The Miller Act does not waive sovereign immunity. Id., 1290.

Another federal court concluded that “[i]f the subcontractor is not paid, his only remedy is a suit under the Miller Act on the payment bond; he has no lien and no claim against the Government. . . . Furthermore, the Government’s immunity from subcontractor claims is not waived by its failure to insist that its prime contractors furnish payment bonds.” (Citation omitted.) Shore Contractors, Inc. v. Heatherly, 705 F. Sup. 293, 295 (E.D. Va. 1987).

As is true with its federal counterpart, General Statutes § 49-41 does not exact a duty on the municipality to ensure the general contractor furnishes a payment bond. The fundamental purpose of § 49-41 “is to protect and benefit those who furnish materials and labor to the contractor on public work, in that they may be sure of payment of their just claims, without defeat or undue delay . . . .” (Citation omitted; internal quotation marks omitted.) American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 227, 384 A.2d 378 (1978); Pelton & King, Inc. v. Bethlehem, 109 Conn. 547, 556, 147 A. 144 (1929). Thus, the statute protects subcontractors against default by the general contractors that hire them. A subcontractor’s only recourse when a general contractor defaults on its debt is to sue on a payment bond pursuant to General Statutes § 49-42. Because the general contractor here did not furnish a payment bond, the plaintiff is left without recourse. While this situation is unfortunate, it is clear that § 49-41 does not make a governmental unit responsible for the general contractor’s failure to furnish a payment bond, or the subcontractor’s failure to protect its interests by determining that a payment bond had been furnished.

Thus, the defendant owed no duty to the plaintiff under the statute. “ ‘The existence of a duty of care is an essential element of negligence. ... A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.’ Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).” Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983). Since the defendant owed no legal duty to the plaintiff, the plaintiff’s claim against the municipality is unenforceable as a matter of law and therefore the trial court improperly granted summary judgment in favor of the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant on its motion for summary judgment.

In this opinion the other judges concurred.

       General Statutes § 49-41 (a) provides in pertinent part: “Before any contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person . . . that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person . . . .”

       It is true that our Supreme Court has held that under this statute any public works contract executed without the issuance of a payment bond is invalid. Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732 (1955) (city sued the defendant for breach of contract but was denied relief because no bond had been furnished). The trial court and the plaintiff posit that it follows that there is a mandatory duty on the town to ensure the bond is provided. If we were to follow Norwalk v. Daniele, supra, however, the paving contract in this case would be invalid because a payment bond was never issued. Thus, the plaintiff would not prevail.

       Mich. Comp. Laws § 5.2321 (1) provides that before a public works contract is awarded, the proposed contractor “shall furnish at his or her own cost to the governmental unit a performance bond and a payment bond

       40 U.S.C. § 270a (a) provides in pertinent part: “Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person . . . .”


author: Foti, J.

text:
    Joseph Szachon, Jr. v. Town of Windsor et al.
    (10428)
    Foti, Lavery and Freedman, Js.
    Argued October 5
    decision released December 29, 1992

      Neil A. McPhail, with whom, on the brief, was Philip K. Meister, for the appellant (plaintiff).

      John W. Bradley, Jr., with whom, on the brief, was John S. Rosania, for the appellee (named defendant).

      Andrew J. O’Keefe, with whom were Peter K. O’Keefe and, on the brief, Maureen Sullivan Dinnan, for the appellee (defendant Central Paving Company, Inc.).
   Foti, J.

The plaintiff appeals from a judgment for the defendants, rendered after a jury trial, in an action for personal injuries. The plaintiff brought this action against the defendant town of Windsor in two counts, the first under the defective highway statute, General Statutes § 13a-149, and the second under a common law absolute nuisance theory. A third count was directed against the defendant Central Paving Company, Inc., and claimed negligence. The plaintiff claims that the trial court (1) abused its discretion in admitting into evidence certain testimony and documents related to the plaintiffs blood and urine tests, and (2) improperly instructed the jury on contributory negligence. The defendants have raised the additional issue of whether the general verdict rule precludes our review of the plaintiffs claims. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 28, 1985, at approximately 10 p.m., the plaintiff was involved in a motorcycle accident on Prospect Hill Road near its intersection with Day Hill Road in Windsor. There were no witnesses to the accident, which did not involve any other vehicles. The area was under reconstruction at the time, with the work being done by Central Paving. The plaintiff alleged that the accident was caused by a “depressed area or a trench or indentation” filled with sand, gravel and stone across the middle of Prospect Hill Road. The jury returned general verdicts for the defendants on each of the three counts separately.

As a preliminary matter we first address the defendants’ claim that the general verdict rule applies and, therefore, that any error by the trial court in admitting evidence or instructing the jury should be considered harmless. “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929).” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987).

“The application of the general verdict rule . . . does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial.” Id., 203. “[I]t is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). ‘If the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.’ Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra, 466 . . . .” (Citations omitted.) Id., 203-204.

The plaintiffs third count against Central Paving alleged negligence. Central Paving filed a special defense of contributory negligence. At trial, the plaintiff requested that eighteen interrogatories be submitted to the jury. That request was denied by the court, which found the interrogatories to be too numerous and confusing. ‘ ‘ [Interrogatories are ordinarily submitted at the discretion of the trial court”; Burns v. Koellmer, 11 Conn. App. 375, 389, 527 A.2d 1210 (1987); but the plaintiff may receive protection against the application of the general verdict rule by the use of properly framed interrogatories. Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 708, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). “A court has a duty to grant a . . . proper request for interrogatories when there are two or more causes of action.” (Emphasis added.) Id.

The plaintiff argues that under Pedersen v. Vahidy, 209 Conn. 510, 552 A.2d 419 (1989), a party’s merely requesting the court to submit interrogatories to the jury will prevent application of the general verdict rule. We do not agree with this reading of the case. In Pedersen, our Supreme Court stated that “where the court has denied a proper request for interrogatories . . . the general verdict rule does not apply so as to preclude appellate review of the error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed.” (Emphasis added.) Id., 514. In Pedersen, the trial court had denied the defendant’s request for submission of interrogatories, the jury returned a general verdict for the plaintiff, and the trial court later denied the defendant’s motion to set aside the verdict. On appeal, the defendant’s arguments were directed at the trial court’s instructions to the jury and its failure to grant a mistrial. The plaintiff countered with two procedural arguments: first, that the defendant’s submission of the interrogatories had been untimely; and second, that, because the defendant had not relied on the trial court’s refusal to submit the interrogatories as a ground for his motion to set aside the verdict, he was precluded on appeal from relying on this refusal as a reason for not applying the general verdict rule.

The defendant in Pedersen did not appeal from the trial court’s denial of its request to submit interrogatories to the jury. Id., 517. Nor did the plaintiff “on appeal maintain that submission of the interrogatories would have been inappropriate . . . .” Id., 514. The court therefore never squarely addressed whether the defendant had made a “proper request for interrogatories” that was then denied by the trial court. Moreover, the court concluded that the general verdict rule was inapplicable, not because the defendant had requested the submission of interrogatories to the jury, but because the defendant had “made every reasonable effort to protect himself from the consequences of such a verdict” and could not “at the time he prepared his motion to set aside the verdict . . . anticipate that the general verdict rule would be invoked . . . .” Id., 517.

Here, the trial court refused to submit the requested interrogatories because they were not properly framed. Under Pedersen, the plaintiff was not required to include the court’s refusal as an independent ground for seeking a new trial. On appeal, however, he must make such a claim in order to obtain appellate review of the appropriateness of those interrogatories, so that this court may determine whether the trial court properly exercised its discretion. The plaintiff’s failure to do so deprives us of the benefit of briefs and oral arguments by both parties regarding the appropriateness of the requested interrogatories. We cannot determine whether the court denied a “proper request for interrogatories,” which denial would preclude application of the general verdict rule and permit “appellate review of error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed.” Id., 514.

Since the plaintiff has not, on appeal, challenged the trial court’s denial of his request for submission of interrogatories to the jury, he cannot now claim that the trial court abused its discretion when it determined that the interrogatories were not properly drawn. “Every reasonable presumption will be made in favor of the trial court’s proper exercise of its discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).” State v. Graham, 21 Conn. App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). We must presume that in rendering a general verdict the jury found every issue in favor of the defendant Central Paving. Stone v. Bastarache, supra, 204. The defendant’s denial of negligence and its allegation of contributory negligence constituted two separate and distinct defenses, either of which would support the jury’s general verdict. Spitzer v. Haims & Co., 217 Conn. 532, 551-52, 587 A.2d 105 (1991). Therefore, irrespective of any finding of the jury regarding the plaintiff’s contributory negligence, we may presume that the plaintiff did not sustain his burden of proof on his claim of negligence. Any possible error in the trial court’s instructions to the jury on Central Paving’s special defense of contributory negligence was harmless. Id., 552-53.

The defendant town also claims application of the general verdict rule. The plaintiff’s first count alleged a breach of the town’s statutory duty under General Statutes § 13a-149. His second count sounded in nuisanee. To recover under the first count, the plaintiff had to “prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the [town] actually knew of the particular defect or that, in the exercise of its supervision of highways in the [town], it should have known of that defect; (3) that the [town], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

The plaintiff, by his complaint, alleged not only the defect, but also that he was in the exercise of due care at the time of his injury. The plaintiff was required to prove these essential allegations of his complaint. Janow v. Ansonia, 11 Conn. App. 1, 8, 525 A.2d 966 (1987). Since there is no presumption under General Statutes § 13a-149 that the plaintiff was exercising due care at the time of his injury, the plaintiff was required to prove, not only the defect, but also that he was not contributorily negligent. McGloin v. Southington, 15 Conn. App. 668, 675, 546 A.2d 906, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). The town denied both the existence of the alleged defect and the plaintiff’s allegation of due care. These denials disavowed separate obligatory claims raised by the first count of the plaintiff’s complaint. Curry v. Burns, 27 Conn. App. 439, 442, 606 A.2d 731, cert. granted, 223 Conn. 904, 610 A.2d 176 (1992).

The jury returned a general verdict, making it impossible to know whether the jury resolved the first count on the basis of the plaintiff’s failure to prove that a defect existed or his failure to prove that, even if a defect did exist, he was exercising due care and was not contributorily negligent. There is no indication that the evidence was insufficient, as a matter of law, to support either basis for the verdict. Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). We conclude that the town’s denials constituted two distinct defenses to the allegations in the plaintiff’s complaint. The general verdict rule therefore applies, and we may presume that the jury found both issues in favor of the town, that is, that no defect existed and that any injuries the plaintiff sustained were the result of his own negligence.

In Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990), our Supreme Court stated in dicta that the general verdict rule does not apply when the defendant makes a general denial of the plaintiff’s claims that the road was defective and that the defect was the sole proximate cause of the accident. The court indicated that such denials are not distinct and sever-able defenses, but “mere denials of components of the only cause of action the plaintiff has alleged, i.e., that the defendant has breached the statutory duty imposed on him by § 13a-144.” Id., 485 n.9.

There is no question in the present case that had the town, in addition to denying the plaintiffs allegations under the first count, filed a special defense of contributory negligence, and had the jury returned a general verdict, the town would have been able to claim the benefits of the general verdict rule, since both the general denial and the special defense would constitute distinct and severable defenses. Here, however, the town did not file such a special defense. As we pointed out in Janow v. Ansonia, supra, the town was not obligated to do so, since the town does not bear the burden of proving contributory negligence. Rather, it is the plaintiff who bears the burden of pleading and proving his lack of contributory negligence. Id.

We believe that it would be unreasonable to preclude the town from claiming the benefits of the general verdict rule simply because it chose not to file a special defense that it was not obligated to file. Moreover, there is no difference, except as to burden of proof, between a special defense of contributory negligence, as pleaded by a defendant, and an allegation by the plaintiff in his complaint that he was exercising due care and not contributorily negligent. The jury’s duty is the same in either case. We point out that it is not the form of the pleading that determines whether the general verdict rule applies, but rather the distinctness of the defenses raised. Finley v. Aetna Life & Casualty Co., supra, 203. Under the circumstances, we conclude that the town’s denials constituted two distinct defenses to the allegations of the plaintiff’s complaint, and the general verdict rule precludes our review of the plaintiffs challenge to the court’s instructions on contributory negligence.

The town also claims that the general verdict rule precludes our review of issues related to the plaintiff’s second count, which sounds in nuisance. The plaintiff did not allege that he was in the exercise of due care, as he did in the first count, but the town did file a special defense alleging the plaintiff’s negligence in one or more of thirteen ways. As previously discussed, because no interrogatories were submitted to the jury, we cannot determine on what basis the jury reached its conclusion. We must therefore presume that the jury found both issues in favor of the town, namely, that the condition did not constitute a nuisance and that the plaintiffs injuries were proximately caused by his own negligence and carelessness. Any error by the trial court as to the admission of evidence regarding the plaintiffs negligence or its instructions to the jury on that issue must be deemed harmless under the general verdict rule.

Accordingly, we conclude that the verdicts for both Central Paving and the town must be sustained.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) § 13a-149 provides in part: “damages FOR INJURIES BY MEANS OF DEFECTIVE ROADS AND BRIDGES. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation, unless the action is commenced by complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice. . . .”

       Generally, there is a presumption of reasonable care in negligence cases. General Statutes § 52-114 provides: “pleading op contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”

       The town’s special defenses as to the second count were:
      “1. Any injuries or losses alleged to have been sustained by the plaintiff were proximately caused by his own negligence and carelessness.
      “2. The plaintiff, Joseph Szachon, Jr., was negligent in one or more than one of the following ways:
      a. he was inattentive;
      b. he failed to have his motorcycle under proper control;
      c. he failed to stop or turn to the left or right to avoid the accident although it was practical to do so;
      d. he failed to make reasonable use of his senses and facilities;
      e. he failed to act as a reasonably prudent person as his senses and facilities were impaired by the use of alcohol and/or drugs;
      f. he operated his motorcycle with defective brakes in violation of Connecticut General Statutes Section 14-80Í;
      g. he failed to operate his motorcycle at a reasonable rate of speed having due regard to the width, traffic and use of said highway and the weather conditions then and there prevailing in violation of Connecticut General Statutes Section 14-218a;
      h. he failed to operate his motor vehicle at a reasonable rate of speed in violation of Connecticut General Statutes Section 14-219;
      i. he failed to stop his motorcycle in obedience to a stop sign in violation of Connecticut General Statutes 14-301;
      j. he operated his motorcycle recklessly in heedless disregard for his own safety;
      k. he operated his motorcycle with a defective head lamp in violation of Connecticut General Statutes Section 14-96x;
      l. although he knew or should have known of the construction in progress, he failed to stop or slow his motorcycle in response thereto; and
      m. he operated his motorcycle with unsafe tires.”


author: Dupont, C. J. Freedman, J.,

text:
    State of Connecticut v. Wayde Davis
    (11099)
    Dupont, C. J., Foti and Freedman, Js.
    Argued September 21, 1992
    decision released January 5, 1993

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Alfred Baldwin, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the trial court’s judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of a sentence received for a conviction of failure to appear in the first degree in violation of General Statutes § 53a-172. The defendant’s sole argument on appeal is that the evidence presented at the probation hearing was insufficient to prove that the defendant had violated a condition of his probation. We affirm the judgment of the trial court.

On June 1,1990, the defendant pleaded guilty to the charge of failure to appear and was sentenced to two years incarceration, execution suspended, and two years probation. At the time of sentencing, the defendant signed a standard form known as “The General Terms of Probation.” The form outlined the conditions of his probation, including his agreement not to violate any criminal law of this state during the term of his probation.

While on probation, the defendant was arrested for committing the crimes of burglary in the second degree in violation of General Statutes § 53a-102, criminal mischief in the third degree in violation of General Statutes § 53a-117, and possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant was arrested for these charges at the scene, without a warrant. Subsequently, a trial court found probable cause for his arrest on these charges. The defendant was then accused by information of a violation of a condition of his probation, pursuant to which a hearing was held. General Statutes § 53a-32.

At the probation revocation hearing, the arresting officer gave the following uncontroverted testimony. On September 27, 1990, at approximately 12:50 a.m., he was dispatched to a large apartment complex to investigate a reported burglary in progress in the basement of the apartment complex. It was reported to the police that a black male was acting as a lookout while another black male was kicking open a door to the basement. Upon arriving at the building, the officer discovered that both the rear and basement doors of the building were damaged, as were the locks and wooden framing. The basement door was partially open. Upon entering the basement, the officer discovered two black men, the defendant and another man who was later identified as a resident of the building. The defendant was holding a spoon with white powder on it. The officer performed a valtox test on the powder, which tested positive for cocaine. The officer thereupon arrested both men.

On the basis of these uncontested facts, the trial court found that the defendant had violated his probation by violating the criminal laws of the state of Connecticut, and ordered the defendant to serve the original two year sentence.

The defendant’s sole claim on appeal is that there was insufficient evidence presented to the trial court from which it could find that the defendant had violated the terms of his probation. The gravamen of the defendant’s argument is that the state failed to prove the commission of any criminal act by the defendant. This contention is founded on the defendant’s premise that “[p]roving the commission of the criminal act necessarily means proving each element of the offense charged.” The defendant argues that the state failed to prove all of the elements of any offense, by reliable and probative evidence, and that, therefore, the trial court’s finding that the defendant violated his probation must be reversed. We disagree.

“The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.” Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985); see also State v. Durkin, 219 Conn. 629, 635, 595 A.2d 826 (1991). A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. Black v. Romano, supra, 611; United States v. Czajak, 909 F.2d 20, 22 (1st Cir. 1990). The former component requires that a fact be found by the trial court and the latter requires the exercise of the sound discretion of the trial court. United States v. Harris, 612 A.2d 198, 203 (D.C. App. 1992). The purpose of the hearing is to determine whether the probationer violated a condition of his probation, and, if there is a violation, whether the probationer should serve the remainder of a sentence previously given.

Because the revocation hearing is comprised of these two distinct parts, our standard of review of the trial court’s order revoking the defendant’s probation differs, depending on which part of the hearing we are reviewing. With respect to the trial court’s initial factual determination that a condition of probation has been violated, our review is limited to reviewing whether such a finding was clearly erroneous. Practice Book § 4061; Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); see also United States v. Granderson, 969 F.2d 980, 982 (11th Cir. 1992) (applying the clearly erroneous standard to factual findings of a violation of a condition in a revocation of probation case). Where the factual basis of the court’s decision is challenged, we must determine whether the finding challenged is supported by the evidence or whether it is clearly erroneous because it is not supported by the evidence. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. State v. Amarillo,. 198 Conn. 285, 313-14, 503 A.2d 146 (1986).

When reviewing the second component of a probation revocation hearing, appellate inquiry is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); State v. Johnson, 11 Conn. App. 251, 257, 527 A.2d. 250 (1987). “ Tn determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992); see also United States v. Parker, 952 F.2d 31, 33 (2d Cir. 1991) (“district court’s decision revoking probation will be reversed only if that decision constitutes an abuse of discretion”); United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989) (appellate court has “authority to review revocation decisions for fundamental unfairness or for an abuse of discretion”); United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir. 1983) (same). The defendant in this case does not argue that the trial court abused its discretion, but, rather, that his probation should not have been revoked because the trial court could not have properly found as a fact that the defendant violated a condition of his probation.

General Statutes § 53a-32 (b) requires the trial court to consider the entire record when making the initial factual determination as to whether the probationer has violated a condition of his probation, and it cannot find a violation of probation, “unless such violation is established by reliable and probative evidence.” See also Payne v. Robinson, 10 Conn. App. 395, 402, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). “Reliable and probative” concerns the nature of the evidence to be considered but is unrelated to the standard of proof that the court should apply in deciding the factual question of whether a violation of probation has occurred. In order to decide, therefore, whether the trial court, in using “reliable and probative evidence,” as required by General Statutes § 53a-32, has properly found as a fact that a condition of probation has been violated, we must first determine the degree of certainty with which that fact must be found. The statute itself is silent as to the standard of proof, requiring us, therefore, to analyze existing case law for an answer.

Almost universally in federal and state jurisdictions, the standard of proof needed to find a violation of probation is less than proof beyond a reasonable doubt. There is, however, a split of authority among the states as to whether the standard of proof should be clear and convincing evidence, a preponderance of the evidence, or reasonable satisfaction. Most states that have addressed the issue require either a preponderance of the evidence or reasonable satisfaction. Our research indicates that only three states currently apply a standard more stringent than either a preponderance of the evidence or reasonable satisfaction, but less than a reasonable doubt. Additionally, we have found only one state that appears to require a standard less than either a preponderance or reasonable satisfaction. The United States Supreme Court has made it clear that the standard of proof is less than proof beyond a reasonable doubt, but has left open what lesser standard of proof should govern a finding that a condition of probation has been violated. The court has, however, made it clear that a revocation proceeding is not part of a criminal prosecution and that the full panoply of rights is not due a defendant in a revocation hearing. Gagnon v. Scarpelli 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).

Although the United States Supreme Court has not yet addressed the issue of which standard of proof should govern revocation of probation proceedings, most of the federal circuits have done so. All of the federal circuits that have considered the issue have held that reasonable satisfaction is the proper standard, and did so after Gagnon v. Scarpelli, supra, was decided. See United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (“[ejvery other circuit to consider the question has adopted the ‘reasonably satisfied’ standard”); see also United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir. 1990).

In Connecticut, the standard of proof was first enunciated in 1973. State v. Roberson, supra, 80, established that the standard of proof is whether “the trial court was ‘reasonably satisfied’ that the terms of probation had been violated.” A number of Connecticut decisions since Roberson have followed this standard. See State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988); State v. Baxter, 19 Conn. App. 304, 316, 563 A.2d 721 (1989); State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987); Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987). We conclude, therefore, that the status of the law in Connecticut requires us to adhere to a reasonable satisfaction standard.

Although it is clear that Connecticut cases apply a reasonable satisfaction standard, none of the cases has defined the standard. The classical standards of proof are proof beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence. The question is where in the range of burdens of proof does reasonable satisfaction lie? A number of cases, both state and federal, that have considered the issue have concluded that reasonable satisfaction is a less stringent standard than a preponderance and requires less compelling proof. See, e.g., United States v. TorrezFlores, 624 F.2d 776, 782 (7th Cir. 1980); Armstrong v. State, 294 Ala. 100, 312 So. 2d 620, 623 (1975); People v. Rodriguez, 51 Cal. 3d 437, 446, 795 P.2d 783, 272 Cal. Rptr. 613 (1990) (en banc) (although the court ultimately chose to adopt a preponderance standard); State v. Ford, 707 P.2d 16, 19 (Mont. 1985); but see Kitchen v. State, 589 A.2d 575, 579 (Md. App. 1991) (stating that reasonable satisfaction is the equivalent of preponderance of the evidence). Those federal circuits that have considered the issue of whether the reasonable satisfaction standard is the equivalent of the preponderance of the evidence standard have unequivocally concluded that these two standards are not the same. A preponderance of the evidence is a stricter standard of proof. See United States v. Smith, 571 F.2d 370, 372 n.2 (7th Cir. 1978), and cases cited therein. We agree with the federal circuit courts that the reasonable satisfaction standard is a lesser standard of proof than the preponderance of the evidence standard and that reasonable satisfaction is the standard to be applied to determine whether a condition of probation has been violated.

In defining the standard of reasonable satisfaction, several courts have observed, “[t]he standard of proof required is that evidence and facts be such as reasonably to satisfy the judge that the probationer’s conduct has not been as required by the conditions of probation.” United States v. Czajak, supra, 22, quoting United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir. 1984). A reasonable satisfaction requires a “minimal level of certainty.” State v. Bailey, 464 N.W.2d 626, 628 (S.D. 1991). We define the standard as meaning a rational belief of a trial court that the evidence is adequate or sufficient to prove a violation.

The burden of proof in a revocation proceeding necessarily differs from that in a criminal proceeding because the goals of probation differ from those of criminal incarceration. See State v. Smith, supra, 176-78. A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. Not only does existing Connecticut case law require a reasonable satisfaction standard, we believe that it is the most appropriate standard of review for probation revocation hearings. A probation revocation hearing does not entitle a probationer to a completely new trial at which the violation must be found by a preponderance of the evidence, and due process is not offended if a violation is found under a reasonable satisfaction standard. United States v. Smith, 571 F.2d 370, 372 (7th Cir. 1978).

In making its factual determination, the trial court is “entitled to draw reasonable and logical inferences from the evidence.” Payne v. Robinson, supra, 403. It may also consider the types of information properly considered at an original sentencing hearing because a revocation hearing is merely a reconvention of the original sentencing hearing. See State v. Smith, supra, 178. The court may, therefore, consider hearsay information, evidence of crimes for which the defendant was indicted but neither tried nor convicted, evidence of crimes for which the defendant was acquitted, and evidence of indictments or informations that were dismissed. State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); accord Jones v. Thieret, 846 F.2d 457, 461-62 (7th Cir. 1988) (citing numerous Supreme Court cases).

From the evidence presented in this case, the trial court could reasonably have found, using the standard of reasonable satisfaction, that the defendant had violated all of the elements of General Statutes §§ 53a-117 (a) and 53a-102. See United States v. Czajak, supra, 22-23. It is uncontested that a police officer was dispatched to an occupied apartment building at approximately 1 a.m. to investigate a reported burglary in progress involving two men. That report included the fact that one of the perpetrators was destroying a door of the building. Upon his arrival at the building, the officer found that the outside and the basement doors had been damaged. Inside the basement, the officer found the defendant holding a spoon with white power on it.

Additionally, the trial court had as evidence before it, the fact that the charges against the defendant were still pending as of the date of the probation revocation hearing. The pendency of the charges indicates that not only did the officer at the scene believe there was probable cause to arrest the defendant for the crimes with which he was charged, but also that a trial court must have found probable cause for the arrests at the time of the defendant’s arraignment. See Practice Book § 650. The court also had the testimony of the arresting officer.

The trial court expressly stated that “[t]he court is convinced that it has heard reliable and appropriate evidence to the effect that there has been a violation of the probation condition and so a violation is found.” Although the statement did not indicate what standard of proof was used to find the fact, we conclude that the omission indicates that a standard of a preponderance of the evidence was used. See Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984).

In civil cases, the trial court’s failure to state or imply what standard of proof was used to find a fact gives rise to the presumption that a standard of a preponderance of the evidence was used. Id. Because we treat a probation revocation hearing as a civil matter, we use that assumption here. We treat a probation revocation hearing as a civil matter because it is similar to other collateral proceedings that are treated as civil matters and that also arise out of criminal convictions, such as postconviction petitions for a new trial; Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977); and habeas corpus petitions. Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970).

Having presumed that the trial court applied the preponderance of the evidence standard, a higher standard of proof than the reasonable satisfaction standard, we conclude that the trial court’s finding could not have been different under the lesser standard. The axiom that, if a trial court does not state or imply it is using that proper standard of proof, a new trial is necessary; Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986); applies only when the standard of proof that should have been used is higher than the preponderance of the evidence standard. See id.; Kavarco v. T.J.E., Inc., supra. It is therefore unnecessary to remand the case to the trial court for an articulation of the standard of proof used.

We conclude that all of the facts that could be considered by the court were sufficient for it to be reasonably satisfied that the defendant had violated one of the general terms of his probation, and that finding is not clearly erroneous.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Freedman, J.,

dissenting. I do not agree with the conclusion of the majority as to the standard of proof to be applied in determining whether a violation of probation has occurred. Because I believe that this case must be remanded to the trial court for a new hearing to determine whether a violation of a condition of probation has been established by the proper standard of proof, I respectfully dissent.

There are a number of areas in the majority opinion with which I am in complete agreement. I agree that the phrase “reliable and probative evidence” in General Statutes § 53a-32 (b) “concerns the nature of the evidence to be considered but is unrelated to the standard of proof that the court should apply in deciding the factual question of whether a violation of probation has occurred.” I agree that the “burden of proof in a revocation proceeding necessarily differs from that in a criminal proceeding because the goals of probation differ from those of criminal incarceration” and that the “standard of proof needed to find a violation of probation is less than proof beyond a reasonable doubt.” Finally, I agree that, under Connecticut case law, the standard of proof in determining whether there has been a violation of probation is “reasonable satisfaction.”

I disagree, however, with the majority’s conclusion “that the reasonable satisfaction standard is a lesser standard of proof than the preponderance of the evidence standard . . . .” I would hold that reasonable satisfaction is the same as a preponderance of the evidence. Preponderance of the evidence means “simply that ‘the evidence must, when considered fairly and impartially, induce a reasonable belief that the fact in issue is true.’ ” State v. Warren, 169 Conn. 207, 213, 363 A.2d 91 (1975). The evidence must be “more convincing as worthy of belief than that which is offered in opposition thereto.” Ballentine’s Law Dictionary (3d Ed.), p. 980. Can anyone seriously argue that one can be reasonably satisfied of the existence of a fact if there is anything less than a reasonable belief that such fact is more worthy of belief than that offered in opposition thereto?

Moreover, I believe that a preponderance of the evidence standard is required by our constitutional guarantees of due process of law. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the United States Supreme Court held that the loss of liberty attendant on a revocation of probation is sufficient to invoke the due process guarantees set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The Morrissey court specifically concluded that constitutional due process mandates a final revocation hearing which “must be the basis for more than determining probable cause . . . (Emphasis added.) Id., 488. The decision to revoke probation involves “a retrospective factual question whether the probationer has violated a condition of probation.” (Emphasis added.) Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). It is therefore insufficient to revoke probation based on a belief that a violation may have occurred, which is all that is required for a finding of probable cause; Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (defining probable cause); Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984) (same); without demanding that the belief be determined to be correct or more likely to be true than false.

The majority, however, comes perilously close to equating the reasonably satisfied standard with a mere finding of probable cause. They bolster their affirmance of the trial court’s judgment with the fact that the charges against the defendant were still pending and that “[t]he pendency of these charges indicates that not only did the officer at the scene believe there was probable cause to arrest the defendant for the crimes with which he was charged, but also [the] . . . trial court must have found probable cause for the arrests at the time of the defendant’s arraignment.” If only a finding of probable cause was required, there would be no necessity to hold a hearing on the issue of whether the defendant has violated a condition of probation subsequent to the finding of probable cause at the time of arraignment.

Since a violation of probation hearing can result in the revocation of the conditional liberty created by probation, I would hold that the due process clauses of both the federal and state constitutions require nothing less than a finding that a violation of the conditions of probation must be established by, at least, a preponderance of the evidence. Moreover, as the majority points out, “[a] revocation of probation hearing has two distinct components, and two purposes.” I do not believe that requiring proof by a preponderance of the evidence in the first component, wherein the court determines if a violation of a condition of probation has occurred, will in any way interfere with the broad discretion accorded to the trial court in the second component, wherein the court determines whether probation should be revoked because the beneficial aspects of probation are no longer being served. Black v. Romano, supra, 611.

As it is impossible to tell what standard of proof was applied by the trial court other than its statement that it heard “reliable and appropriate evidence,” which we all agree is not a standard of proof, I would reverse the judgment of the trial court and remand the matter for a new hearing. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984). At that new hearing, the trial court must determine whether the state has proven by a preponderance of the reliable and probative evidence that the defendant has violated a condition of his probation.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-117 provides in pertinent part: “(a) A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another . . . .”

       The trial court found, as its basis for the revocation of probation, that the defendant had violated General Statutes §§ 53a-102 (a) and 53a-117. It made no finding as to whether the defendant had violated General Statutes § 21a-279 (a).

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation oí conditional discharge. . . . (b) If such violation is established, or the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       At the time of the arrest, the officer could not have known that the defendant was on probation so there can be no suggestion that the arrest was motivated by vindictiveness against a probationer. See Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

       The defendant does not contest the fact that he was on probation at the time of his arrest or contend that he did not have notice of the “General Terms” of his probation, including his agreement not to violate any criminal law of the state of Connecticut. The defendant also does not complain of any lack of fourteenth amendment procedural due process as outlined in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), nor does he complain of any violation of the Connecticut constitution.

       New Mexico and Colorado are the only states of which we are aware that require proof beyond a reasonable doubt in some cases. See State v. Doe, 104 N.M. 107, 717 P.2d 83 (Ct. App. 1986) (holding that, by statute, the standard of proof required to revoke juvenile probation is proof beyond a reasonable doubt, although the standard of proof in adult probation revocation proceedings is “reasonable certainty”); In re C.B., 196 Colo. 362, 585 P.2d 281 (1978) (en banc) (holding that if the violation is a criminal offense, it must be proven beyond a reasonable doubt; other violations must be proven by a preponderance of the evidence).
      “The Supreme Court has not specifically discussed the standard of proof required in probation revocation hearings, but its opinion in Gagnon v. Scarpelli, 411 U.S. 778, 789-90 n.12, 93 S. Ct. 1756, 36 L. Ed. 2d 656 [1973], indicates that the Court viewed the proposition that probation could be revoked in less than a ‘beyond a reasonable doubt standard’ as so obvious that it did not merit discussion.” United States v. Smith, 571 F.2d 370, 372 n.2 (7th Cir. 1978).

       See State v. Ehmke, 400 N.W.2d 839, 840 (Minn. Ct. App. 1987) (holding that “[t]he trial court must find that there has been a violation by clear and convincing evidence,” citing Minn. R. Crim. P. 27.04 subd. 3 [3]”); Nebraska Revised Statutes § 29-2267 (1991) (“court shall not revoke probation or increase the requirements imposed thereby on the probationer, except after a hearing upon proper notice where the violation of probation is established by clear and convincing evidence”); State v. Finnegan, 232 Neb. 75, 77, 439 N.W.2d 496 (1989) (requiring the state to prove the violation by clear and convincing evidence); see also Sigman v. Whyte, 268 S.E.2d 603, 607 (W. Va. 1980) (requiring a “clear preponderance of the evidence”); accord State v. Bowman, 375 S.E.2d 829, 831 (W. Va. 1988).

       See State v. Dasher, 166 Ga. App. 237, 304 S.E.2d 87 (1983) (stating that only slight evidence is necessary to revoke probation).

       See footnote 7, supra.

       Reasonable satisfaction is sometimes equated with the phrase “reason to believe.” See People v. Rodriguez, 51 Cal. 3d 437, 446, 795 P.2d 783, 272 Cal. Rptr. 613 (1980).

       I am aware that Kavarco states that where “the trial court is silent as to the standard of proof used, it will be assumed that one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used. ” Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984). I do not, however, believe that that assumption is applicable here for two reasons. First, a probation revocation proceeding is not the usual civil case. Second, as the majority notes, “[although it is clear that Connecticut cases apply a reasonable satisfaction standard, none of the cases defines the standard.” Because no appellate court in this state has heretofore defined the reasonable satisfaction standard applicable in a probation revocation proceeding, it would be inappropriate to engage in any assumptions regarding the trial court’s decisional process in light of the constitutional interests at stake.


author: O’Connell, J.

text:
    Garrett Smith v. Leonard Barbieri, Warden
    (10865)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued October 5, 1992
    decision released January 5, 1993

      Denise Ansell, with whom, on the brief, was Joyce Antila Phipps, for the appellant (petitioner).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Marcia Smith, assistant state’s attorney, and, on the brief, John Connelly, state’s attorney, for the appellee (respondent).
   O’Connell, J.

The petitioner appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus challenging the validity of his guilty plea to a charge of escape in violation of General Statutes § 53a-169 (a) (2). The petitioner claims that (1) the trial court improperly found that his conduct constituted escape, and (2) the commissioner of correction exceeded his statutory authority in promulgating an internal departmental procedure concerning arrest of persons charged with violation of General Statutes § 53a-169 (a) (2).

Because we dispose of the appeal on the issue of deliberate bypass, we do not address the merits of the petitioner’s claims.

The genesis of this appeal is the petitioner’s arrest for escape while he was on supervised home release. As part of a plea agreement, the petitioner pleaded guilty to the escape charge in addition to one count of assault and one count of larceny, both arising out of unrelated crimes. In exchange, the state nolled two additional charges.

Almost immediately after his plea, the petitioner adopted the position that failing to report to his parole officer for more than two months, together with changing his residence without notifying his parole officer of his whereabouts, did not constitute escape. The petitioner, however, made no effort to withdraw his guilty plea or to take an appeal. Instead, by petition dated nine days after the plea, he brought this habeas corpus action.

The habeas hearing transcript discloses that the state repeatedly offered to agree to the withdrawal of the petitioner’s guilty pleas to all of the charges including the escape charge. The state’s offer contemplated voiding the entire plea agreement and proceeding to trial on all of the charges. Following consultation with his attorney, the petitioner declined the offer. The petitioner took the position that despite the state’s willingness to start over with not guilty pleas, he preferred to go forward with the habeas corpus action in order to get a ruling on the question of whether his conduct came within either the common law or the statutory definition of escape.

These circumstances raise a serious question of whether the petitioner has deliberately bypassed a direct appeal. The general rule is that a petitioner must allege and prove that he did not deliberately bypass the ordinary appeal process. A petitioner’s failure to do so will result in denial of the petition. Cajigas v. Warden, 179 Conn. 78, 425 A.2d 571 (1979); Blue v. Robinson, 173 Conn. 360, 369-71, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 366-68, 225 A.2d 802 (1966).

Our review of the petition and the hearing transcript in the present case discloses that the petitioner did not, as required, either allege or establish “by a preponderance of the evidence that he did not deliberately bypass the orderly procedure of a direct appeal.” Russo v. Lopes, 12 Conn. App. 343, 344, 530 A.2d 667 (1987). It is well recognized that a habeas court must address deliberate bypass, as a predicate to habeas relief, to ensure that the writ of habeas corpus is not used as an alternative to a direct appeal. Payne v. Robinson, 207 Conn. 565, 568, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). The issue of deliberate bypass is one that is jurisdictional in nature; Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987); see also Valeriano v. Bronson, 209 Conn. 75, 79 n.5, 546 A.2d 1380 (1988); and, thus, presents a threshold question that must be resolved before we can consider the case on the merits.

We recognize that the strict bypass rule has been relaxed where a claim of ineffective assistance of counsel is involved. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). This relaxation, however, is limited to cases in which the sole claim for relief from a criminal conviction is a claim of ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985). The Rivera court declined to address the issue of whether the deliberate bypass rule should be relaxed where the ineffective assistance of counsel is not the sole issue. The court did speculate, however, that “[w]hen the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for habeas corpus.” Id., 571 n.1.

The observation of the Rivera court is singularly applicable to the present case. Here, the first count is based on the petitioner’s argument that, construing in his favor State v. Lubus, 216 Conn. 402, 581 A.2d 1045 (1990), there was no factual basis for his guilty plea. The gravamen of the second count is that the petitioner’s counsel was ineffective because he did not handle the case in accordance with the petitioner’s interpretation of Lubus. Obviously, there can be no ineffective assistance of counsel determination until there is a resolution of the legal question of the meaning of Lubus, which is a proper subject for direct appeal.

We conclude that the petitioner did not satisfy the threshold question of proving that the habeas corpus action is not a deliberate bypass of a direct appeal and, therefore, the habeas court should not have heard the petition on its merits.

The judgment denying the petition is reversed and the case is remanded with direction to render judgment dismissing the petition.

In this opinion the other judges concurred.

       General Statutes § 53a-169 (a) provides in relevant part: “A person is guilty of escape in the first degree . . . (2) if he escapes from any public or private, nonprofit halfway house, group home or mental health facility or community residence to which he was transferred pursuant to subsection (e) of section 18-100 or from his abode to which he was released pursuant to subsection (f) of section 18-100 and he is in the custody of the commissioner of correction or is required to be returned to the custody of said commissioner upon his release from such facility . . . .”

       The ineffective assistance of counsel claim was dismissed by the habeas court. The petitioner has not appealed that ruling.

       Compare Tyson v. Warden, 24 Conn. App. 729, 591 A.2d 817 (1991), wherein we agreed to address a petitioner’s straightforward ineffective assistance of counsel claim as well as a challenge to his Alford plea. In that case, we reasoned that there was no deliberate bypass because each claim implicated an ineffective assistance of counsel claim. Here, however, no such interrelationship exists.


author: Lavery, J.

text:
    Department of Public Safety et al. v. Freedom of Information Commission et al.
    (11131)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued November 5, 1992
    decision released January 5, 1993

      Margaret Quitter Chappie, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellants (plaintiffs).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Lavery, J.

This is an appeal from the trial court's judgment affirming an order of the freedom of information commission (commission). The plaintiffs claim that the trial court improperly held that the department of public safety violated the Freedom of Information Act in refusing to disseminate requested motor vehicle accident reports at a local state police barracks. We affirm the judgment of the trial court.

The trial court found the following facts. The defendant Edward A. Peruta made written and oral requests for copies of accident reports on April 3, 1989, at the state police Troop H barracks in Hartford. Peruta was told that the records would be available only at the reports and records division in Meriden. When Peruta made his request at the reports and records division, giving the date and time of each of the seven accidents for which he sought reports, he was informed that he had to have the names and case numbers for each report, and that the information was available at the Troop H headquarters. After obtaining that information, Peruta returned to Meriden and made a request for seven accident reports. He was then informed that only five “walk-up” requests are allowed per person per day. He received five reports in person, and the remaining two were mailed to him at a later date.

On April 5, 1989, Peruta complained by letter to the commission that the department of public safety was denying him access to public records. The commission held a hearing on August 29, 1989, and issued its final decision on February 23, 1990. The commission concluded that the plaintiffs had violated General Statutes § 1-19 (a) by denying access to accident reports at individual troop barracks, and by requiring the defendant to apply in writing to inspect the records. Following the issuance of the commission’s final decision, the plaintiffs brought an administrative appeal in the Superior Court. The appeal was dismissed on January 17, 1992, and the plaintiffs thereafter appealed to this court.

In claiming that the trial court improperly dismissed its appeal, the plaintiffs ask us to revisit certain factual findings the commission made in reaching its decision. Specifically, the plaintiffs want this court to find that the procedures for disseminating information contained in automobile accident reports is not unduly burdensome to the citizens of this state. We will not substitute our judgment on factual matters for those of a legislatively created body designed to make findings of fact in a particular area.

“Judicial review of [an administrative agency’s] actions is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted.” Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “ ‘ “The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” . . .’ ” New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988), quoting Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981). Having reviewed the record in this case, we conclude that the commission properly exercised its authority, and that the trial court correctly dismissed the appeal.

As our Supreme Court stated in Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992): “[T]here is an ‘overarching policy’ underlying the Freedom of Information Act (FOIA) favoring the disclosure of public records. . . . Our construction of the FOIA must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” (Citations omitted.) The information in question here is contained in routine automobile accident reports which, the plaintiffs conceded in the trial court, are public records and always disclosable. As the trial court correctly pointed out, any state trooper can recognize and copy an accident report without danger of disclosing sensitive or confidential information. The overarching public policy of disclosure is best served by implementation of the commission’s decision.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       The named defendant in this appeal is the freedom of information commission. Edward A. Peruta, who brought a complaint against the plaintiffs before the commission, is a codefendant.

       The plaintiffs are the division of state police and the state police reports and records division, and the commanding officers of those divisions. The state police are within the state department of public safey.

       General Statutes § 1-19 (a) provides: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.