author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. ERNEST FRANCIS
    (AC 34701)
    Sheldon, Keller and West, Js.

      Argued September 26, 2013
    officially released March 11, 2014

      Ernest Francis, self-represented, the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Ernest Francis, appeals from the denial of his third postconviction motion to correct illegal sentence under Practice Book § 43-22 following his 1992 conviction and sentencing to fifty years in prison on the charge of murder. On appeal, the defendant claims initially that the court, Gold, J., erred in denying his motion to correct by rejecting his substantive claims that the sentencing court, Miaño, J., imposed the challenged sentence upon him in an illegal manner by: (1) relying upon an inaccurate understanding of the manner in which he committed the underlying crime; (2) drawing and relying upon unfair inferences about his character and escalating criminal career prior to the crime based upon inaccurate information about his criminal history; and (3) making incorrect assumptions about his mental state at the time of the crime. The defendant also claims that the court erred procedurally in adjudicating his motion to correct by denying his accompanying request for the appointment of counsel to represent him on the motion based upon the unexplicated conclusion of a reviewing public defender that the motion lacked sufficient merit to warrant making the requested appointment. The defendant argues that the court’s challenged ruling on his request for appointed counsel violated his rights, as an indigent defendant, under both General Statutes § 51-296 (a), as interpreted and applied in State v. Casiano, 282 Conn. 614, 627, 922 A.2d 1065 (2007) (holding that indigent criminal defendant has statutory right to appointed counsel on motion to correct under § 51-296 [a]), and the due process and equal protection clauses of our state and federal constitutions. The defendant argues, more particularly, that the court’s ruling violated his right to appointed counsel because it was made under procedures that failed to comply with the minimum constitutional requirements for ruling on motions by appointed counsel to withdraw from criminal appeals on the ground of frivolousness, as articulated by the United States Supreme Court in Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and long enforced in this state in all postconviction proceedings in which indigent defendants have the statutory or constitutional right to appointed counsel.

We agree with the defendant that the court’s denial of his request for appointed counsel on his motion to correct was improperly made under procedures that failed to comply with the requirements of Anders, which we find to be enforceable as part of his right to appointed counsel under § 51-296 (a). We thus conclude that the court’s judgment denying the motion to correct must be reversed, and this case must be remanded for further proceedings on the defendant’s motion to correct consistent with this opinion.

I

The following procedural history is relevant to our resolution of this appeal. The defendant, representing himself, filed the present motion to correct on July 12, 2010, and later amended it on October 12, 2010. On September 8, 2010, the date on which the motion was initially scheduled for a hearing, the court, Gold, J., opened the hearing by engaging in the following colloquy with the defendant and public defender, R. Bruce Lorenzen:

“The Court: Let’s do Francis. This is Mr. Francis’s third motion to correct what he alleges is an illegal sentence. Are you doing this yourself or are you applying for the public defender to review the claim?
“The Defendant: I’d like to represent myself, Your Honor.
“The Court: Do you understand you have the right to apply for a public defender? The public defender would, pursuant to a case called State v. Casiano, review the file. If the public defender felt that there was some potential merit to your claim, the public defender would be appointed to represent you. If the public defender said no, that he or she didn’t think there was sufficient likelihood of success, then you could do it yourself if you wanted to. But do you want to skip that step and just represent yourself?
“The Defendant: I was assuming that had happened when I first came in on State v. Casiano so we could save time. But I mean, if I—I’m going to apply for the public defender then.
“[Attorney Lorenzen]: Judge—
“The Court: Yes.
“[Attorney Lorenzen]: Hi, Mr. Francis.
“The Defendant: How you doing?
“[Attorney Lorenzen]: Bruce Lorenzen, Public Defender’s Office. The clerk had alerted us to Mr. Francis’s claim. I have reviewed it. May I have just a moment?
“(Attorney Lorenzen speaking with the defendant.)
“[Attorney Lorenzen]: Judge, again, I was made aware of this case and I’ve had an opportunity to review the motion as well as some previous files that our office has been involved in and my concern is not so much on legal merit but potentially on procedural grounds. There’s a problem in terms of us being appointed.
“The Court: All right. So are you going to try to get a special?
“[Attorney Lorenzen]: It’s not a conflict situation.
“The Court: It’s not a conflict. So what are you proposing?
“[Attorney Lorenzen]: Judge, I really sympathize with Mr. Francis’ position and I’ve told him, there’s an emotional merit to his claim because what he cites in his petition in terms of occurrences in court, as near as I can tell, did, in fact, occur. My concern is more, as the court started this proceeding by saying that this is the third petition, the problem is more whether or not it’s been previously addressed.
“The Court: All right. I guess—
“[Attorney Lorenzen]: And so in the limited confines of Casiano, I think it would be my obligation to take the position that this claim does not have sufficient merit to justify appointment. But it’s—as I’m probably sounding, it’s a close call and it’s not—it’s a question of whether previous courts have been wrong and the way they look at things.
“The Court: The first order of business as far as I’m concerned on a motion to correct is to satisfy Casiano. So that’s what I inquired. He said yes. Are you reporting then to the Court that based on your review of the allegations and—
“ [Attorney Lorenzen]: It’s my considered opinion that it does not have merit.
“The Court: All right. Well, then, thank you. Then, Mr. Francis, then you understand that means that you’re going to pursue this either by hiring with the help of a lawyer that you hire yourself or else you’ll do it yourself.”

The defendant responded to the court’s decision to deny his request for appointed counsel with the following objection to Lorenzen’s failure to specify the grounds upon which he had concluded that the motion to correct lacked sufficient merit to warrant appointing counsel thereon:

“The Defendant: I understand the dictates of State v. Casiano. However, I think that State v. Casiano, everyone is overlooking Andrews v. California as well as Fredericks v. Douglas, which is a Connecticut case on when a lawyer feels that a case has no merit. Mr. Lorenzen comes in and he doesn’t have anything on paper to point—to point-for-point issues that can, that I may be able to raise alternatively if he feels it has no merit. I think United States Supreme Court has already spoken in Andrews that whenever a lawyer seeks to withdraw or seeks to say that there’s no merit to a claim, the Sixth Amendment have a right to have him file an Andrew’s brief. I just want to put that on the record.
“The Court: All right.
“The Defendant: I just want to put that on the record. If the Court feels that he doesn’t have to file an Andrew’s brief that’s an issue I’ll take up on appeal.
“The Court: Yes. The Court’s order is that Mr. Loren-zen has satisfied his responsibilities by having reviewed your third motion and having represented to me that he does not feel the appointment of a public defender or a special public defender is warranted in this case.”

The defendant then reiterated his request that Loren-zen state the specific grounds upon which he had relied in concluding that his motion to correct had no merit. This request was denied by the court in the following further colloquy with the defendant:

“The Defendant: ... I don’t want to waste too much time on this issue. What I’m saying is I’d like to know what the public defender’s official position as to why the case had no merits. So I can address that also.
“The Court: Well—
“The Defendant: So I don’t have to ask for articulation or rectification for that.
“The Court: I’m not going to require the public defender to assume that responsibility. The public defender has assessed it and it is his considered opinion, Mr. Lorenzen’s, that this case perhaps considering the prior court’s rulings by Judge Clifford and Judge Espinosa which deny previous petitions. I’m going to accept what Mr. Lorenzen says.
“The Defendant: Okay.
“The Court: And I don’t believe he’s under any obligation to explain that any further.
“The Defendant: I would just like to say that the issue was never addressed. It’s not res judicata or collateral estoppel because it was never raised before.
“The Court: Oh, I’m not—
“The Defendant: Mr. Lorenzen’s position that it was addressed before as he conveyed to me, this issue was never addressed.
“The Court: I don’t think that’s what Mr. Lorenzen said at all. He mentioned prior proceedings but he has assessed the merit of the claim that’s now before this Court and has determined there’s an insufficient likelihood of success and therefore has pursuant to Casiano indicated to me that his office should not be appointed.”

The defendant went on to represent himself on his motion to correct at a hearing held on February 18, 2011. The court, Gold, J., denied that motion on the merits in a memorandum of decision issued on June 7, 2011. This appeal followed.

II

We begin our discussion of the defendant’s right to counsel claim by addressing our ability to hear this claim on appeal. The state argues that the defendant’s appeal is improper because the only proper vehicle for challenging a trial court’s order denying a request for the appointment of counsel is a motion for review under Practice Book § 63-7, which provides, in part, that “[t]he sole remedy of any defendant desiring the court to review an order concerning . . . the appointment of counsel shall be by motion for review. . . .” We reject that argument, under the authority of State v. Scott, 139 Conn. App. 333, 340 n.6, 55 A.3d 608 (2012), wherein this court held that Practice Book § 63-7 applies only to the appointment of appellate counsel, not to the appointment of trial counsel. Here, then, as in Scott, the defendant’s “challenge [to] the trial court’s denial of his Casiano request ... is properly before this court on appeal.” Id.

Ill

Having determined that we may properly hear the defendant’s right to counsel claim on appeal, we now turn to the merits of that claim. The defendant contends, to reiterate, that the court violated his right to appointed counsel on his motion to correct, under both § 51-296 (a) and the due process and equal protection clauses of the state and federal constitutions, by denying his request for counsel based solely upon the unexplicated conclusion of the public defender who reviewed the motion that it lacked sufficient merit to warrant making the requested appointment. That ruling, the defendant claims, violated his statutory and constitutional right to counsel on the motion because it was made under procedures which failed to comply with the minimum constitutional requirements established by the United States Supreme Court in Anders for determining if appointed counsel for an indigent criminal defendant on appeal should be permitted to withdraw from the appeal on the ground that his client’s claims are frivolous. In Anders, the Supreme Court held that: “[I]f counsel finds his [client’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. . . . [I]f [the court] finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Anders v. California, supra, 386 U.S. 744. Claiming that the Anders requirements apply with equal force to an indigent criminal defendant’s right to appointed counsel on a motion to correct as on appeal, the defendant argues that the procedure by which the court adjudicated his request for appointed counsel in this case violated those requirements in several ways.

First, he claims that the court erred by failing to appoint counsel to represent him personally in connection with his request for counsel on the motion, and to serve as his own legal representative and counselor for that purpose, rather than as an amicus curiae or a neutral agent of the court. Second, he claims that the court erred by failing to require the public defender, who was asked to evaluate the possible merits of his motion, to base his evaluation upon a conscientious review of the trial court record, examined in light of controlling legal authorities, and then to share the results of that evaluation with both him and the court, in the form of a brief identifying all possible grounds upon which to support his claims on the motion. Third, he claims that the court erred by denying his request for appointed counsel on the motion based upon the public defender’s evaluation of its potential merits without making its own review of the record and independent evaluation of the motion’s potential merits before personally concluding that the motion was wholly frivolous.

Turning first, as we must, to the defendant’s statutory argument that the procedure by which the court ruled on his request for appointed counsel violated his rights under § 51-296 (a), we note initially that this aspect of his right to counsel claim is governed by Casiano and other controlling cases from this court and our Supreme Court that have interpreted and applied that statute. Those authorities, he correctly argues, have clearly established that, following the determination of a defendant’s indigency, such an indigent defendant’s statutory right to appointed counsel “in any criminal action” under § 51-296 (a) applies both to all proceedings before the trial court in a Connecticut criminal case and to all postconviction proceedings in which the defendant challenges the legality of his resulting criminal conviction or sentence.

As for postconviction challenges to criminal convictions or sentences, our Supreme Court held, in Gipson v. Commissioner of Correction, 257 Conn. 632, 638, 778 A.2d 121 (2001), that § 51-296 (a) affords indigent criminal defendants the right to appointed counsel in all appeals from their convictions or sentences, including both direct appeals from such convictions or sentences, and discretionary appeals to the Supreme Court, on petitions for certification, from this court’s rulings on direct appeal. Gipson thus extended the indigent defendant’s statutory right to appointed counsel under § 51-296 (a) to appeals in which there is no corresponding constitutional right to appointed counsel. Compare Douglas v. California, 372 U.S. 353, 357-58, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (holding that state court’s failure to appoint counsel for indigent criminal defendant on his first appeal as of right from criminal conviction or sentence violates his rights under equal protection clause of fourteenth amendment to United States Constitution), with Ross v. Moffitt, 417 U.S. 600, 612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (refusing to extend equal protection right of indigent criminal defendant to appointed counsel from his first appeal as of right from his criminal conviction or sentence to preparation of petition for discretionary appellate review after rejection of his first appeal).

More recently, moreover, in State v. Casiano, supra, 282 Conn. 626, our Supreme Court ruled that § 51-296 (a) extends the indigent criminal defendant’s statutory right to appointed counsel on appeal to postconviction motions to correct, because a motion to correct is a well established, and sometimes preferable, alternative to an appeal for challenging the legality of a criminal sentence. Due to the functional equivalency between motions to correct and criminal appeals as vehicles for challenging the legality of criminal sentences as a matter of right, the court in Casiano held that an indigent defendant is no less entitled to the assistance of appointed counsel on a motion to correct than on a criminal appeal. Id., 627; Sinchak v. Commissioner of Correction, 126 Conn. App. 684, 690, 14 A.3d 343 (2011) (“[Casiano] reasoned that a motion to correct an illegal sentence is an alternate route equivalent to an appeal of an illegal sentence and, because § 51-296 [a] provides counsel for such an appeal, the statutory right to counsel logically extends to the equivalent motion”). This ruling, like our Supreme Court’s earlier ruling in Gipson, was limited to the statutory claim raised on appeal, in that the court expressly declined to reach the defendant’s parallel constitutional claims.

Consistent with its conclusion that an indigent criminal defendant has the same statutory right to appointed counsel under § 51-296 (a) on a motion to correct as on appeal, the court in Casiano made it clear that that right, like the right to appointed counsel on appeal, is not unlimited, in the sense that it does not afford the defendant the right to appointed counsel for the prosecution of frivolous claims. State v. Casiano, supra, 282 Conn. 627-28. Although no mention of the frivolous claims exception to the right to appointed counsel appears in the text of § 51-296 (a), that exception has long been enforced in this state as to the right of indigent defendants to appointed counsel on appeal under the previously described procedures prescribed by the United States Supreme Court in Anders v. California, supra, 386 U.S. 744. See, e.g., State v. Pascucci, 161 Conn. 382, 386-87, 288 A.2d 408 (1971).

Although the United States Supreme Court later clarified, in. Smith v. Robbins, 528 U.S. 259, 265, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), that Anders established only general guidelines for enforcing the frivolous claims exception to the indigent criminal defendant’s constitutional right to appointed counsel on appeal, from which a state could freely deviate if the alternative procedures it adopted to enforce that right met minimum constitutional standards, neither our legislature nor our judiciary has ever adopted any such alternative procedures for ruling on requests by appointed counsel to withdraw from criminal appeals on the ground of frivolousness. Hence, the Anders procedure remains, to this day, the applicable procedure for adjudicating motions by appointed counsel to withdraw from Connecticut criminal appeals on the ground of frivolousness.

The Anders procedure, as enforced in this state, has been held to afford an indigent defendant on appeal each of the rights that the defendant claims to have been violated by the court in this case, including: (1) the right to personal representation by appointed counsel, as his own counselor and legal representative rather than as a neutral officer of the court; (2) the right to have appointed counsel, who seeks to withdraw from the case on the ground of frivolousness, base his evaluation of the merits of the defendant’s claims upon a conscientious review of the record, examined in the light of controlling legal authorities, and to inform the defendant and the court of the results of that evaluation in a brief listing all possible grounds for supporting the defendant’s claims; and (3) the right to have the court make its own evaluation of the merits of his claims and to conclude independently that such claims have no merit before granting counsel’s motion to withdraw.

Against this background, having expressly equated the right to appointed counsel on a motion to correct to the right to appointed counsel on appeal, the court in Casiano described the procedure to be followed in ruling on an indigent defendant’s request for the appointment of counsel on a motion to correct: “[A] defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file such a motion has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion.” State v. Casiano, supra, 282 Conn. 627-28.

Although the foregoing holding clarifies certain aspects of the procedure by which a trial court must enforce an indigent defendant’s right to appointed counsel on a motion to correct, it fails to address, or thus to shed light on, other important aspects of that procedure. To begin with, the ruling clarifies that when an indigent defendant first makes a request for appointed counsel on a motion to correct, the court must grant the request as a threshold matter so that counsel can assist the defendant in connection with his request for representation itself. That, of course, is the implication of the court’s statement in its ruling that, “[i]f appointed counsel determines that such [a sound] basis exists [for the filing of a motion to correct], the defendant also has the right to the assistance of such counsel for the purpose ofpreparing and filing such a motion.” (Emphasis added.) Id. The ruling also clarifies that appointed counsel’s first obligation to the defendant in the course of rendering such assistance to him is to determine whether there exists a sound basis for filing or further prosecuting his motion to correct. This obligation necessarily requires counsel to exercise diligence on behalf of his client by exploring all potentially viable factual and legal bases for his motion to correct, then sharing the results of his labors with his client, to whom he also owes a duty of loyalty. Finally the ruling clarifies that if appointed counsel determines that there is a sound basis for any of his client’s claims, he must continue to assist his client by representing him on his motion, both in the trial court and, if necessary, on direct appeal from its denial.

In each of these ways, the procedure prescribed by the court in Casiano for enforcing the frivolous claims exception to the indigent defendant’s right to appointed counsel on a motion to correct is consistent with the procedure prescribed by Anders for enforcing that exception as to the right to appointed counsel on appeal when ruling on a motion by appointed counsel to withdraw from an appeal on the ground of frivolousness. Both procedures contemplate that counsel will be appointed to represent the defendant in connection with his request for appointed counsel before any determination of frivolousness is made and that, if counsel determines that there is a sound basis for any of his Ghent’s claims, he wifi continue to represent his client on the merits of those claims without further action by the court.

What the Casiano decision does not address or answer, however, are the following questions that are squarely raised in this case. First, what minimum steps must appointed counsel take to evaluate the potential merits of his Ghent’s claims before concluding that there is no sound basis for any of those claims? Second, if appointed counsel concludes that there is no sound basis for any of his client’s claims, what steps must he take to advise his client and the court of that conclusion? Third, when the court is apprised of appointed counsel's conclusion that there is no sound basis for any of his Ghent’s claims, what steps, if any, must the court itself take to validate that conclusion before enforcing the frivolous claims exception against him by terminating his counsel’s appointment on the motion?

The state contends that Casiano does not answer these questions because the limited procedures set forth therein are all that are statutorily required of appointed counsel before the court rules on the request of an indigent defendant for appointed counsel on a motion to correct. It thus claims that a reviewing public defender’s only task is to review the defendant’s motion to correct, to decide on that basis if any of the claims made in it have a sound basis, and to report his bottom-line conclusion to the court, without necessarily explaining the basis for that conclusion or the steps he took in reaching it. In the state’s view, the final decision as to whether the defendant’s request for appointed counsel should be granted has been left entirely to the reviewing public defender, whose determination of the matter is final and unreviewable, either in the trial court or on appeal.

The defendant disagrees with the state’s argument on this issue, claiming that, because the express rationale in Casiano for extending the statutory right to counsel “in any criminal action” from appeals to motions to correct is that such motions are functionally equivalent to appeals as vehicles for challenging the legality of criminal sentences, his right to appointed counsel on a motion to correct must be identical to, and thus be protected by, the same procedural safeguards as used to protect his right to appointed counsel on appeal. The defendant thus claims that the answers to the foregoing questions must be supplied by Anders and its progeny, which govern motions by appointed counsel for indigent defendants to withdraw from Connecticut criminal appeals on the ground of frivolousness. The defendant thus concludes that the court erred by ruling on his request for appointed counsel in this case without complying fully with the Anders requirements. For the following reasons, we agree with the defendant.

There are two principal reasons why we agree with the defendant that the Anders requirements are enforceable as to an indigent defendant’s statutory right to appointed counsel on a motion to correct. First, the logic of the defendant’s basic argument on that issue is compelling, because, as he rightly argues, the court in Casiano expressly equated the importance of a motion to correct to that of a criminal appeal for the purpose of challenging the legality of a criminal sentence, and thus extended the same right to appointed counsel to the former as to the latter. That logic, by extension, compels the conclusion that the same procedures that have long been used to protect the right to appointed counsel on appeal, including the Anders procedure for enforcing the frivolous claims exception to that right, must be used to protect the equivalent right to appointed counsel on a motion to correct.

Second, although neither this court nor our Supreme Court has ever decided this precise issue with respect to the statutory right to appointed counsel on a motion to correct, this court has previously applied the Anders procedure to motions by appointed counsel to withdraw from other postconviction proceedings in which their indigent clients had a statutory right to appointed counsel under § 51-296 (a). In Franko v. Bronson, 19 Conn. App. 686, 563 A.2d 1036 (1989) (en banc), this court had before it two motions to review orders by trial courts denying motions by appointed counsel to withdraw from appeals in postconviction habeas corpus proceedings on the ground of frivolousness. Each counsel had filed an Anders brief in support of his motion to withdraw. In deciding to reach the merits of the two motions despite the lateness of their filing, the court in Franko explained, and then analyzed, the issues before it as follows: “Each motion essentially seeks our review of the presiding judge’s denial of appellate counsel’s motion to withdraw. Before we address the merits of these motions, we must decide whether the procedure set out in Anders . . . and codified in Practice Book §§ 952 through 956 . . . applies in the context of appeals from habeas corpus judgments.

“Although Anders was a habeas corpus action, the opinion in that case focuses only upon the extent of the duty of coart-appointed appellate counsel to prosecute afirst appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal. . . . Practice Book §§ 952 through 956 implement the Anders principle. The Anders decision is based upon constitutional requirements guaranteed by the sixth amendment in criminal cases. There is, however, no equivalent constitutional right to counsel in habeas corpus cases. . . .

“Although the Anders procedure is not, therefore, constitutionally required in habeas corpus appeals, we look beyond this constitutional limitation to the existence of General Statutes § 51-296, which creates a statutory right to counsel in certain habeas corpus actions. That section mandates that counsel be appointed for an indigent defendant [i]n any criminal action, in any habeas court proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter .... We conclude, moreover, that General Statutes § 51-296 applies as well to appeals from such habeas corpus proceedings, because no such appeal may be taken unless an appropriate judicial authority has certified pursuant to General Statutes § 52-470 (b) that a question is involved in the decision which ought to be reviewed by the court having jurisdiction ....

“Because the legislature has created a right to counsel in habeas corpus cases under § 51-296, and in appeals therefrom, we conclude that the right to appeal in habeas corpus actions should be extended the same protections as those set out in the Anders decision. We, therefore, follow the procedure set out in Practice Book § 4035 and §§ 952 through 956 ... by referring motions to withdraw based on Anders briefs to the presiding judge of the trial court in those habeas corpus matters specified in General Statutes § 51-296.” (Citations omitted; emphasis in original; footnotes added; internal quotation marks omitted.) Id., 691-92.

The upshot of the Franko decision is that the frivolous claims exception to the indigent defendant’s statutory right to appointed counsel under § 51-296 (a) is enforceable under the Anders procedures in all proceedings to which that right has been, extended, whether or not the defendant has a corresponding constitutional right to counsel in any such proceeding. The Anders procedures must therefore be complied with by trial courts whenever they have occasion to enforce the frivolous claims exception to an indigent defendant’s statutory right to appointed counsel on a motion to correct.

In the present case, none of the constitutional requirements set forth by the United States Supreme Court in Anders were satisfied by the manner in which the trial court adjudicated the defendant’s request for appointed counsel on his motion to correct. First, the court did not appoint Lorenzen to represent the defendant in the prosecution of his motion to correct. Instead, Lorenzen was advised of the defendant’s motion by the clerk’s office prior to the case being called, and he reviewed the motion and certain other, unspecified files in his office, never describing in detail to the court the substance of any discussions with the defendant about the claims he wished to make in his motion. Lorenzen never elaborated further about his review of the defendant’s claims, and the court expressly refused to order that he do so. Lorenzen did not, at any time after making his determination that the defendant’s claim lacked sufficient merit to justify appointment, explain his findings to the defendant, as any attorney, appointed or privately retained, must do, at a bare minimum, out of courtesy, professional loyalty, and respect for his own client. Rather, the record reflects that Lorenzen was not appointed to act as the defendant’s personal counsel for the purpose of determining if the defendant’s motion to correct was frivolous, but only to serve as a neutral agent of the court.

The record also does not establish that Lorenzen conducted either a diligent review of all relevant parts of the record or an examination of relevant case law concerning the defendant’s claims before concluding that those claims lacked sufficient merit to warrant granting the defendant’s request for appointed counsel. In the end, moreover, Lorenzen’s conclusory statements that the motion did “not have sufficient merit to justify appointment” and that “[i]t’s my considered opinion that it does not have merit,” were insufficient to satisfy the minimum requirements of Anders.

Finally, only one tier of review was performed as to the potential merits of the defendant’s motion to correct, by a public defender who was not appointed to represent the defendant’s personal interests, before the court denied his request for appointed counsel on the motion. Indeed, as soon as Lorenzen announced his conclusion, in open court, that the motion had insufficient merit to warrant granting the defendant’s request for the appointment of counsel, the court simply adopted that conclusion as its own, declaring: “All right. Well, then, thank you. Then, Mr. Francis, then you understand that means that you’re going to pursue this either by hiring with the help of a lawyer that you hire yourself or else you’ll do it yourself.” Moments later, when the defendant challenged the unexplained basis for Lorenzen’s conclusion, the court simply endorsed that conclusion because Lorenzen had reached it, stating that, “Mr. Lorenzen has satisfied his responsibilities by having reviewed your third motion and having represented to me that he does not feel the appointment of a public defender or a special public defender is warranted in this case.” The court thus denied the defendant’s request for counsel on his motion to correct without ever conducting its own review of the record or of the relevant legal authorities potentially supporting the motion, much less independently concluding that the motion was wholly without merit. In so doing, the court failed to comply with the requirements of Anders, and thus violated the defendant’s right to appointed counsel on his motion to correct under § 51-296 (a).

The court’s failure to appoint Lorenzen to represent the defendant’s interests by conducting a conscientious first tier of review of relevant portions of the record in light of controlling legal authorities to determine whether the defendant’s claim was wholly frivolous, Lorenzen’s failure to explain his findings to either the defendant or the court beyond a mere conclusory statement, as well as the court’s failure to perform its own independent, second tier of review of the record in fight of controlling legal authorities to make its own determination as to whether the defendant’s claims were wholly frivolous, violated the minimum requirements of Anders, and the defendant’s right to appointed counsel on his motion under § 51-296 (a). Accordingly, we remand this case for further proceedings consistent with this opinion on the defendant’s motion to correct and his accompanying request for appointment of counsel in connection therewith.

The judgment is reversed and the case is remanded for a new hearing on the motion for appointment of counsel and on the motion to correct in accordance with this opinion.

In this opinion the other judges concurred.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The defendant’s conviction was affirmed on direct appeal. State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993). Following that appeal, “[t]he defendant filed his first motion to correct an illegal sentence in 2001, in which he alleged that the sentencing court denied his right to speak in mitigation of punishment, relied on inaccurate information and failed to rely on information solely within the record. The trial court, Clifford, J., denied the motion on the merits. On appeal, the Appellate Court found that the trial court lacked jurisdiction to consider the motion to correct because the defendant’s claims did not attack the validity of the sentence, and remanded the case with direction that the motion be dismissed. . . . The defendant filed a second motion to correct that was denied on the merits by the trial court, Espinosa, J., in a memorandum of decision dated November 18, 2005. hi that motion, the defendant alleged that the sentencing court improperly signed his arrest warrant and presided over his probable cause hearing. The Appellate Court summarily affirmed the judgment of the trial court in a per curiam decision.” (Citation omitted; internal quotation marks omitted.)

       The defendant claims that the sentencing court made inaccurate findings about the number of stab wounds inflicted upon the victim in the course of the murder. The court found that the defendant delivered two blows to the victim, while the defendant claims that the evidence established that only one blow was delivered to the victim.

       The defendant argues that the sentencing court relied upon an inaccurate assessment of his criminal history, finding as follows: “Here is a young man that at age sixteen was convicted of possession of narcotics; at age seventeen was convicted of conspiracy to sell cocaine; at age seventeen, assault in the third degree; and now murder, and he’s only nineteen years old. Three felony convictions at age nineteen. On probation at the time of the instant offense. ... He is that portion of a small segment of our criminal population which commits a disproportionately large number of crimes. At age nineteen, this gentleman is a repeat felony offender. And again, the fact that he was on probation . . . with four years over his head didn’t dissuade or deter him or break his stride for a moment.”
      The defendant claims that the criminal history relied upon by the sentencing court was inaccurate because he had not been convicted of conspiracy to sell narcotics, but rather was convicted only of conspiracy to possess narcotics. Further, he claims that the probation violation upon which the court relied was inaccurate because the requirements under General Statutes § 53a-60b of the crime of assault in the third degree of a victim over age sixty, for which he was on probation, were not established because the victim was only sixteen years old. He claims that the sentencing court should not have relied on the fact that he was on probation at the time of the crime before first correcting the term of his probation under the correct statute, specifically, General Statutes § 53a-61.

       The defendant claims that the sentencing court failed to afford him the opportunity to present evidence of his mental state at the time of the murder, which he claims would have placed the attack between the victim and the defendant that occurred in prison prior to the murder in a clearer context. The defendant claims that the attack led him to develop post-traumatic stress disorder, which caused him to have an extreme emotional reaction to this event at the time of the murder.

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .”

       U.S. Const., amend. XIV; Conn. Const., art. I, §§ 8, 20.

       Consistent with the representations of the defendant on appeal, we treat his references to “Andrews” as referring to Anders v. California, supra, 386 U.S. 738.

       From the context of the defendant’s comments, it appears as if he conflated the names of two cases. We believe he was referring to Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965), in which our Supreme Court followed the dictates of the United States Supreme Court’s decision in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).

       In its memorandum of decision, the court held, despite the state’s argument to the contrary, that “it is inappropriate to invoke the doctrine of res judicata to preclude the defendant from advancing these claims now.”

       See State v. Casiano, supra, 282 Conn. 616 n.3 (“The defendant also claims that he has a right under the federal and state constitutions to the assistance of counsel in connection with his appeal from the denial of his motion to correct an illegal sentence. Because we conclude that the defendant is entitled to the appointment of counsel under § 51-296 [a], we do not reach the defendant’s constitutional claim. See, e.g., State v. Smith, 280 Conn. 285, 295 n.6, 907 A.2d 73 [2006] [this court generally eschews unnecessary determinations of constitutional issues].”).

       “[A] defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to [Practice Book] § 43-22 with the judicial authority, namely, the trial court.” (Internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534, 902 A.2d 1058 (2006).

       “[I]t is to a defendant’s advantage to move in the trial court, pursuant to [Practice Book § 43-22] to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of [a] defendant’s challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to [§ 43-22]. ... We therefore conclude that, in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court . . . .” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 38-39, 779 A.2d 80 (2001).

         Section 51-296 (a) broadly applies to “any criminal action,” a term that is not defined by the statute, but that has been clarified by this court to “[include] all appeals, including petitions for certification, and not just first appeals as of right.” Sinchak v. Commissioner of Correction, supra, 126 Conn. App. 689. The court in Casiano held that “a motion to correct an illegal sentence falls within the purview of ‘any criminal action’ for purposes of § 51-296 (a).” State v. Casiano, supra, 282 Conn. 625.

       This court, relying on Casiano, also analogized an indigent defendant’s right to counsel for the preparation and filing of an initial habeas corpus proceeding to the filing of a habeas on a habeas. Sinchak v. Commissioner of Correction, supra, 126 Conn. App. 690 (“[A] habeas on a habeas is equivalent to an initial ineffective assistance habeas because both require the same proof and offer the same remedy. ... By logical extension, then, § 51-296 (a), which applies to an initial ineffective assistance habeas, applies equally to a habeas on a habeas.” [Citation omitted.]).

       See Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 676, 931 A.2d 348 (holding that “Anders and Pascucci stand for the proposition that when a motion to withdraw as counsel is filed asserting that there are no nonfrivolous issues on appeal, the court is required to review the entire record before it, including the pleadings and evidence”), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); Vazquez v. Commissioner of Correction, 88 Conn. App. 226, 228 n.2, 869 A.2d 234 (2005) (stating that Anders has “establish[ed] constitutionally required procedures to be followed by counsel and courts in cases in which counsel believes that appeal is frivolous”); see also Practice Book §§ 44-33 through 44-37 (establishing procedure in Superior Court criminal matters, in accordance with Anders, for appointment of initial counsel for appeals by indigent defendants, counsel’s request to withdraw from such appointment, submission by counsel of brief in support of such request to withdraw, and findings to be made by court prior to granting or denying counsel’s request to withdraw).

       Our Supreme Court, following the Anders decision, held that “the record should fully disclose that there has been full compliance with the federal requirements specified in Anders . . . and that the judicial determination required by that decision has been made.” State v. Pascucci, supra, 161 Conn. 387. The Anders procedure has been described by this court as follows: “[I]f appointed counsel . . . believes that there are no nonfrivolous issues and seeks to withdraw by filing an Anders brief, the motion, brief and transcript, if any, of the pertinent proceedings shall be filed with the appellate clerk .... [The court] shall examine fully the briefs of counsel and shall review the transcript if any is filed. If, after such examination, the court concludes that the appeal is wholly frivolous, the court may grant counsel’s motion for leave to withdraw appearance and refuse to appoint new counsel. Before refusing to appoint new counsel, the court shall make a finding that the appeal is wholly frivolous and shall file a memorandum setting forth the basis for this finding .... If after a full examination the court concludes . . . that the appeal is not wholly frivolous, it may allow counsel to withdraw and appoint new counsel to represent the petitioner, or it may deny the motion for leave to withdraw appearance and order counsel of record to proceed with the appeal.” Vazquez v. Commissioner of Correction, 88 Conn. App. 226, 234, 869 A.2d 234 (2005).

       See State v. Pascucci, supra, 161 Conn. 386 (holding that appointed counsel must serve “as an active and conscientious advocate to the full extent of his professional responsibility and obligation”).

       See State v. Pascucci, supra, 161 Conn. 386 (explaining that “the brief or report required from counsel” should contain “ready references not only to the record, but also to . . . legal authorities . . .” [internal quotation marks omitted]). The purpose of the Anders brief is for counsel to provide the defendant with specific references “to anything in the record that might arguably support the appeal.” Anders v. California, supra, 386 U.S. 744. The purpose of the brief is not for counsel to articulate to the court arguments in support of counsel’s motion to withdraw from representation. Thus, there is no conflict of interest for counsel to provide the defendant with a brief referencing those salient arguments while at the same time moving the court to withdraw from representation on the ground that the defendant’s claims are frivolous. The determination of frivolousness is ultimately the court’s determination, after conducting its own independent review of the record in light of controlling law and the brief supplied by counsel.

       See State v. Pascucci, supra, 161 Conn. 386-87 (“[T]he Anders case . . . specifies that the court—not counsel . . . after a full examination of all the proceedings . . . decide [s] whether the case is wholly frivolous. . . . [I]t would be highly desirable for the trial court to make certain that the record disclose that the procedures specified in the Anders case have been strictly followed and, while it is unnecessary for the court to state its reasons for a decision that an appeal is wholly frivolous, a memorandum of decision explaining the basis of the decision of the court would obviously be especially desirable.” [Citations omitted; internal quotation marks omitted.]).

       See Practice Book §§ 44-33 through 44-37 and footnote 16 of this opinion.

       See Practice Book §§ 44-33 through 44-37 andfootnote 16 of this opinion.

       This conclusion is not affected by our Supreme Court’s recognition, subsequent to Franko, of a habeas petitioner’s right to appeal from the dismissal of his habeas petition even if the habeas court denies his petition for certification to appeal. See Simms v. Warden, 229 Conn. 178, 181-82, 640 A.2d 601 (1994); Simms v. Warden, 230 Conn. 608, 609, 646 A.2d 126 (1994). As this court explained in Vazquez v. Commissioner of Correction, 88 Conn. App. 226, 234, 869 A.2d 234 (2005), the Simms decisions affected only the procedure by which counsel’s motion to withdraw from a habeas appeal on the ground of frivolousness must be routed to and decided by the habeas court instead of the presiding judge, not the obligations of habeas counsel or habeas courts to comply fully with Anders whenever they, respectively, seek to withdraw from habeas appeals on the ground of frivolousness or adjudicate such motions to withdraw. The court in Vazquez thus clarified that, “to the extent that the procedure set forth in Franko is inconsistent with the Supreme Court’s decisions in Simms, it is no longer good law. In the future, if appointed counsel. . . believes that there are no nonftivolous issues and seeks to withdraw by filing an Anders brief, the motion, brief and transcript, if any, of the pertinent proceedings shall be filed with the appellate clerk .... [The court] shall examine fully the briefs of counsel and shall review the transcript if any is filed. If, after such examination, the court concludes that the appeal is wholly frivolous, the court may grant counsel’s motion for leave to withdraw appearance and refuse to appoint new counsel. Before refusing to appoint new counsel, the court shall make a finding that the appeal is wholly frivolous and shall file a memorandum setting forth the basis for this finding .... If after a full examination the court concludes . . . that the appeal is not wholly frivolous, it may allow counsel to withdraw and appoint new counsel to represent the petitioner, or it may deny the motion for leave to withdraw appearance and order counsel of record to proceed with the appeal.” Vazquez v. Commissioner of Correction, supra, 234. The court in Vazquez confirmed, by this ruling, that the frivolous claims exception to the purely statutory right to appointed counsel in habeas appeals under § 51-296 (a) remains enforceable to this date under Anders, despite the partial overruling of Franko on other grounds in the Simms decisions.

       On the basis of the foregoing analysis, we do not address the claims raised in the present appeal related to the court’s ruling on the merits of the defendant’s motion to correct.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DELORES WALKER v. HOUSING AUTHORITY OF THE CITY OF BRIDGEPORT
    (AC 34096)
    Beach, Keller and Harper, Js.

      Argued September 18, 2013
    officially released March 11, 2014

      James G. O’Rourke, for the appellant (plaintiff).

      Garrett F. O’Keefe, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Delores Walker, appeals from the summary judgment rendered in favor of the defendant, the Housing Authority of the City of Bridgeport, on the ground that the plaintiff did not comply with the notice requirements of General Statutes § 8-67. On appeal, the plaintiff claims that the trial court erred by: (1) deciding issues of material fact; (2) concluding that the plaintiff did not provide adequate notice as a matter of law according to § 8-67; and (3) finding that the defendant could not delegate, pursuant to General Statutes § 8-41 (a), the authority to receive notice under § 8-67. We affirm the trial court’s summary judgment in favor of the defendant.

The plaintiff’s cause of action is based on an injury she sustained on January 15, 2009, while on the defendant’s property. The plaintiff commenced her action on October 7, 2010. The defendant filed an amended answer and special defenses, asserting, inter alia, that the plaintiff’s claim was barred because she failed to provide proper notice pursuant to § 8-67. Entitled “Injury on housing authority property,” § 8-67 provides that any person injured on “property owned or controlled by [a housing] authority . . . may bring an action ... to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.” The defendant moved for summary judgment asserting that it did not receive proper notice pursuant to the statute.

The parties submitted memoranda and the court held a hearing on the motion. The defendant attached several exhibits to its memorandum of law in support of its motion for summary judgment. One exhibit was a letter from the plaintiff to the defendant, which the plaintiff claimed provided the requisite notice under § 8-67. The letter was dated February 12, 2009. The envelope containing the letter was addressed to “Bridgeport Housing Authority,” and the salutation read, “To Whom It May Concern.” The contents of the letter identified the plaintiff, provided when and where she was injured on the defendant’s property, and stated that she intended to commence an action to recover for her injuries.

The defendant also provided the court with two affidavits, one from its executive director, Nicholas Calace, and one from its chief of security, Rafael M. Villegas. Calace’s affidavit stated that, at the time the plaintiff sustained her injury, he was the secretary of the defendant’s board and Kathleen Vila was the voluntary chairman. The affidavit described that the plaintiffs letter was not addressed to Calace or Vila, either personally or in their official capacity. Calace also affirmed that it was the defendant’s policy that “Vila would not receive any mail sent to the [defendant] that was not specifically addressed to her.” The affidavit went on to state that Vila is deceased. In Villegas’ affidavit, he stated that he never had been delegated the authority to receive notice of claims pursuant to § 8-67. Villegas’ affidavit also stated that he received the plaintiffs letter from the defendant’s human resources department.

The plaintiffs theory in opposition to summary judgment was that mailing her letter to the defendant constituted sufficient notice under § 8-67. Furthermore, the plaintiff argued that if the letter was insufficient under the statute, the authority to receive notice had been delegated to Villegas pursuant to § 8-41 when Vila fell ill preceding her death, and therefore the plaintiff had satisfied the statutory requirements when Villegas received the letter.

Section 8-41 (a) provides in relevant part: “An authority may delegate any of its powers and duties to one or more of its agents or employees. ...” The plaintiff primarily relied on two pieces of evidence to support her delegation theory. First, she submitted a document created by the defendant directing that “[u]pon first notice of a New Claim [to] please contact [Villegas] immediately.” Villegas reported, however, that this document was an “internal . . . document . . . not [filled] out by plaintiffs as notice of a claim.” Second, the plaintiff submitted a letter from Villegas to her attorney that acknowledged receipt of the plaintiffs letter. The plaintiff contends that the Villegas letter was “on letterhead of the office of the [secretary and [chairperson,” and argues that this is additional evidence of a delegation. Villegas’ affidavit stated that the stationery was not the letterhead of either the secretary or the chairperson, but “generic stationary of the [defendant] . . . used by all employees . . . .” The Villegas letter indicates that a copy of the letter was placed in a file, which the plaintiff argues demonstrates that she satisfied the statute. The plaintiffs counsel also provided his own affidavit, which stated: “I caused notice of [the plaintiffs] claim to be mailed to the office of the [c]haiiperson and [secretary of the [defendant in compliance with ... § 8-67.”

On October 24, 2011, the court granted the defendant’s motion for summary judgment. Citing § 8-67, the court found that “there is no question that the notice was not delivered or received either by . . . [Chairman Vila] or [Secretary Calace] . . . .” The court then stated that the plaintiffs delegation theory was “unsubstantiated speculation.” Furthermore, the court found that the defendant could not delegate the authority to receive notice. This appeal followed.

“We begin with the applicable standard of review. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact . . . .” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). “[T]he party moving for summary judgment is held to a strict standard. [The moving party] must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... A material fact is a fact that will make a difference in the result of the case.” (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). “Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary.” (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn. App. 588, 593, 960 A.2d 1071 (2008).

“We emphasize the important point, that [although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . . .” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). Furthermore, a nonmoving party’s conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment. Id., 557. “We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion. . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment.” (Citation omitted; internal quotation marks omitted.) Id., 558.

I

The plaintiff claims that the court erred in granting the defendant’s motion for summary judgment because it “sat as the final trier of fact rather than leaving genuine issues of material fact regarding sufficient notice for the jury.” In support of this claim, the plaintiff argues that the affidavit of her counsel, James O’Rourke, created a genuine issue of material fact that the court resolved. The plaintiff also claims that the fact that Vila died and could not testify as to whether she received the letter creates a genuine issue of material fact that precluded summary judgment. We disagree with both claims, and therefore conclude that the court did not decide issues of material fact.

The affidavit in question does not create a genuine issue of material fact that would preclude summary judgment. The outcome of the defendant’s motion for summary judgment depended on whether the defendant’s secretary or chairperson received the plaintiffs letter. See General Statutes § 8-67. The O’Rourke affidavit states that he “caused [n]otice of [the plaintiffs] claim to be mailed to the office of the [cjhairperson and [secretary of the [defendant in compliance with ... § 8-67. ” This statement does not create a genuine issue of material fact regarding where the notice was sent, to whom it was addressed, or whether the chairman or secretary received it. The affidavit does not dispute the fact that the letter’s salutation read, “To Whom It May Concern,” and does not create a genuine issue of material fact regarding the defendant’s policy to send letters to Vila only if specifically addressed to her. Furthermore, the statement that the notice was “in compliance” with the statute is a bare legal conclusion, not a fact. In sum, the O’Rourke affidavit does not create a genuine issue of material fact that would preclude summary judgment.

Vila’s inability to testily as to whether she received notice also does not create a genuine issue of material fact that would preclude summary judgment. The plaintiff specifically argues that it was erroneous for the court to conclude that notice was not filed properly “as [Vila] is deceased and is not available to testify as to the truth of the matter asserted in the [affidavit of . . . Caiace.” Although the plaintiffs argument seems to be that Caiace’s affidavit constitutes hearsay, she does not indicate which statement in particular is offered for the truth of the matter asserted. See Conn. Code Evid. § 8-1 (3). On the basis of her argument, we assume that the plaintiff takes issue with this statement in Caiace’s affidavit: “As such, to the best of my information and belief, as well as in accordance with [the defendant’s] policy, Ms. Vila did not receive a copy of the plaintiffs letter.” The plaintiffs argument appears to be that because Vila cannot testify as to whether she received the notice and Calace’s affidavit constitutes hearsay, this creates a genuine issue of material fact that can only be resolved at trial. We disagree because Calace’s statement does not constitute hearsay and Vila’s inability to testify does not create a genuine issue of material fact.

“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” Conn. Code Evid. § 8-1 (3). Hearsay is generally inadmissible; see Conn. Code Evid. § 8-2; and therefore when deciding a motion for summary judgment a court may not consider material that would be hearsay at trial. Wooten v. Heisler, 82 Conn. App. 815, 819, 847 A.2d 1040 (2004). In his affidavit, Calace qualified the statement at issue by cautioning that it was based on “the best of my information and belief . . . .” This caveat indicates that Calace is not repeating a statement Vila made. Calace’s affidavit only states that he has no personal knowledge that Vila received the plaintiffs letter, and acknowledges the defendant’s policy that Vila would not receive mail unless it was specifically addressed to her. The statement at issue, although offered for its truth, is not one made by someone other than the declarant, Calace, and therefore the court properly considered it for purposes of summary judgment.

We also conclude that Vila’s inability to testify does not create a genuine issue of material fact that would preclude summary judgment. To avoid summary judgment, the plaintiff was required to demonstrate a genuine issue of material fact through evidence that either Vila or Calace received the plaintiffs letter. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 550. Calace’s affidavit states that it was the defendant’s policy not to send Vila mail unless it was specifically addressed to her. The plaintiff did not provide evidence rebutting this statement, which would have created a genuine issue of material fact as to whether Vila received the letter. In other words, the plaintiff did not provide any evidence that, despite the policy, Vila did receive the plaintiffs letter even though it was not specifically addressed to her.

The fact that Vila cannot testify does not excuse the plaintiffs failure to offer evidence regarding whether Vila received the letter sufficient to create a genuine issue of material fact. We acknowledge that Vila’s inability to testify is a limitation on what evidence was at the plaintiffs disposal to demonstrate the existence of a genuine issue of material fact. The plaintiff, however, still had the ability to provide other evidence from different sources, such as other employees of the defendant or Vila acquaintances. Although the court will draw all reasonable inferences in favor of the party opposing summary judgment; id., 558; the plaintiff did not present any evidence to warrant a reasonable inference in her favor. The plaintiff presented no genuine issues of material fact in opposition to the defendant’s motion for summary judgment, and therefore the plaintiffs claim fails.

II

The plaintiff also claims that the court erred in concluding that as a matter of law notice had not been filed with the defendant’s chairman or secretary pursuant to § 8-67. The plaintiff’s evidence in support of this claim is the Villegas letter to O’Rourke confirming receipt of her letter. The plaintiff argues that Villegas’ letter acknowledging that the defendant received the plaintiffs letter and indicating that a copy of the letter was placed in a “file” satisfies the notice requirement of § 8-67. We conclude that it does not as a matter of law.

Section 8-67 requires notice of an action against a housing authority to be “filed with the chairman or the secretary of the defendant within six months after the cause of action therefor arose.” The issue before us is whether mailing a letter to the defendant addressed “To Whom It May Concern” is properly “filed” with the chairman or the secretary for purposes of § 8-67, if the plaintiff has not presented any evidence to demonstrate that either the chairman or the secretary received the letter.

Our prior interpretation of § 8-67 guides our analysis. See Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007) (“[t]here is nothing in the legislative history to suggest that the legislature . . . intended to overrule every other case in which our courts, prior to the passage of [General Statutes] § 1-2z, had interpreted a statute in a manner inconsistent with the plain meaning rule”). In Fields v. Housing Authority, 63 Conn. App. 617, 624, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001), we concluded that notice provided to housing authority employees or an insurance carrier, but not to the chairman or secretary themselves, did not satisfy the notice requirement in § 8-67. It is insufficient to provide notice only to a housing authority employee because the statute requires that either the chairman or secretary personally acknowledge receipt of the notice. See id. (employee of housing authority cannot waive required notification). We recognized in Fields, and still acknowledge, that this notice requirement can lead to harsh results, yet “the legislature was aware from . . . prior judicial decisions that persons could be injured on housing authority property and be denied recovery for failing to provide the statutory notice.” Id. Modifying this notice requirement is a matter for the legislature, not the courts. See Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987) (“matter for the legislature, not this court, to determine when our state’s sovereign immunity should be waived”). Because the plaintiff “seeks the benefit of a statute requiring a prescribed form of notice to trigger its operation, we . . . [insist] upon strict compliance with the statutory requirement.” Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 414, 456 A.2d 325 (1983). Strict compliance with § 8-67 requires that either the chairman or secretary receive notice.

The plaintiff has not submitted evidence to show that either Vila or Calace personally received her letter. The evidence submitted in conjunction with the motion for summary judgment established that the plaintiff mailed the letter to the defendant, but did not address it to either the chairman or the secretary. Evidence was submitted to show that, pursuant to the defendant’s policy, the notice would not have been given to Vila unless it was specifically addressed to her, which it was not. Absent evidence to the contrary, it is not reasonable to assume that this policy was not followed. Villegas’ letter and affidavit tend to show that he received the plaintiffs letter from the defendant’s human resources department and forwarded it to the defendant’s insurance carrier. The plaintiff has not offered any evidence to show that the letter was received by either the chairman or the secretary within the requisite time frame. Pursuant to Fields, we conclude that the plaintiff did not provide the requisite notice as a matter of law.

m

Finally, the plaintiff argues that the court erred in granting the defendant’s motion for summary judgment because the court incorrectly concluded that the defendant could not delegate, pursuant to § 8-41, the authority to receive notice under § 8-67 as a matter of law. We disagree.

In her first memorandum of law opposing summary judgment, the plaintiff argued: “There is also a question of fact as to whether [Villegas] had been delegated the power and duty of the [c]hairperson and/or the [secretary under ... § 8-41 to accept first notice of [n]ew liability [c]laims and to handle claims on behalf of the [c]haiiperson and/or [s]ecretary.” Section 8-41 details, inter aha, the appointment of housing authority commissioners. The plaintiff relies on one provision in § 8-41, which provides: “An authority may delegate any of its powers and duties to one or more of its agents or employees.” The plaintiff claims that the defendant’s internal policy to bring all claims to Villegas and the letterhead Villegas used to respond to the plaintiffs letter are evidence of a delegation. We conclude that § 8-41 (a) is irrelevant to whether the defendant received notice pursuant to § 8-67.

Section 8-67 sets forth the method by which a plaintiff is to provide notice of a claim to a housing authority. Section 8-67 does not provide the housing authority with any powers or impose any duties. The portion of § 8-41 upon which the plaintiff relies, regarding the defendant’s ability to delegate powers and duties, is therefore irrelevant to § 8-67. We conclude that the court did not err in finding that the defendant could not delegate the authority to receive notice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff refers to Vila as “Kathleen Villa” in her brief. The defendant’s stationery indicates that the correct spelling is Vila.

       We note that neither party presented exhibits regarding the circumstances surrounding Vila’s death. The plaintiff fully presented her theory for the first time during the hearing on the motion for summary judgment. Nothing in the plaintiffs memoranda of law opposing the motion, or the exhibits attached thereto, offers any evidence regarding the circumstances of Vila’s death. The assertion that she was ill for some period of time before her death appears to be pure speculation. Even so, the court appears to have entertained this theory when considering the motion for summary judgment.

       Villegas’ letter indicates that he sent a copy of it to the plaintiff, two insurance companies, the defendant’s director of asset management, and “file.”

       The plaintiff claims that the court used an “improper standard” for summary judgment by requiring that she present evidence to support her argument that there is a genuine issue of material fact. Although it is true that the moving party has the burden of showing there are no genuine issues of material fact; Brown & Brown, Inc. v. Blumenthal, supra, 297 Conn. 721; in order to refute this showing, the nonmoving party cannot rely on bare assertions, and has the burden of coming forward with evidence. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 550. We conclude that the plaintiffs argument has no merit and the court applied the proper standard.

       The plaintiffs claim has two parts. First, the plaintiff claims that the court failed to consider the O’Rourke affidavit and the plaintiffs second memorandum opposing the motion for summary judgment. Second, the plaintiff claims that these materials, if considered, create a genuine issue of material fact that rendered summary judgment inappropriate. The plaintiff moved for an articulation of the court’s summary judgment order, and the court articulated that it “probably did not rely on the plaintiffs [second memorandum] . . . nor the affidavit” when ordering summary judgment. The court stated that it did, however, review these materials before denying the plaintiffs motion to reargue.
      “[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, orthat there has beenamisappre-hension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court.” (Internal quotation marks omitted.) JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App. 260, 277, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013). The plaintiff did not challenge the court’s denial of her motion to reargue either in her brief or at oral argument before this court, and therefore it is uncontested that the affidavit and memorandum do not present any additional facts or controlling law. See id.; Harris v. Bradley Memorial Hospital & Health, Center, Inc., 306 Conn. 304, 319, 50 A.3d 841 (2012), cert. denied, U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013). This leads to the conclusion that the trial court considered the effect of the facts and arguments in these materials in ruling on the motion for summary judgment, and therefore the only issue on appeal is whether the facts and arguments presented create a genuine issue of material fact, and if so, whether the court decided that issue.

       The other statements in the O’Rourke affidavit are as follows: “1.1 am over the age of (18) years and understand the obligations of an oath. 2. I am the attorney of record for [the plaintiff]. ... 4. The Notice was received by Rafael Villegas, Chief of Security, Bridgeport Housing Authority, of the Office of the Secretary and Chairperson, on February 18, 2009.”

       We note that the plaintiffs appellate brief does not address this claim with the same depth as does her memoranda opposing summary judgment. Although the plaintiff only alluded to this claim in her brief, the analysis was sufficient to warrant appellate review. Cf. Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124 n.24, 956 A.2d 1145 (2008).

       The fact that Villegas may have placed a copy of the letter he wrote— not the plaintiffs letter—in an unspecified “file” is inapposite. The plaintiff argued that her letter constituted sufficient notice under the statute because it was filed with the chairman or secretary. She did not argue that the Villegas letter was the operative notice. The circumstances surrounding the Villegas letter, including where it was filed, are therefore irrelevant to the plaintiffs claim. Even if, arguendo, the plaintiff had claimed that the Villegas letter was the operative notice, that argument would fail because the Villegas letter does not state the time the injury occurred, as required by the statute. See General Statutes § 8-67.

       The plaintiff attempts to distinguish .Helds on the ground that the plaintiff in Fields did not provide written notice. Although the plaintiff in Fields informed the housing authority employees via telephone and in person, his attorney also provided written notice to the housing authority’s insurance carrier. Fields v. Housing Authority, supra, 63 Conn. App. 619. These facts do not affect the weight that we afford the holding in Fields.


author: PER CURIAM.

text:
    SYLVESTER TRAYLOR v. TERRY GERRATANA ET AL.
    (AC 35242)
    Gruendel, Lavine and Sheldon, Js.

      Argued December 5, 2013
    officially released March 11, 2014

      Sylvester Traylor, self-represented, the appellant (plaintiff).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendant Terry Gerratana et al.).

      Cristin E. Sheehan, with whom, on the brief, was Gina Hall, for the appellee (defendant Connecticut Medical Insurance Company).
   Opinion

PER CURIAM.

In this case, the plaintiff, Sylvester Traylor, commenced the present action against eighteen defendants, on divers legal theories, to obtain money damages, injunctive relief and a declaratory judgment that General Statutes § 52490a is unconstitutional insofar as it requires indigent plaintiffs seeking to bring medical malpractice actions against their health care providers to obtain opinion letters supporting their claims from similar health care providers before commencing suit. The defendants are seventeen state defendants, including twelve state legislators, one Superior Court judge, one appellate clerk, the New London Superior Court, the “Connecticut Court of Appeals,” and the State of Connecticut (state defendants), and one private defendant, the Connecticut Medical Insurance Company (insurance company).

In proceedings before the trial court, the state defendants and the insurance company filed and prosecuted separate motions to dismiss all of the plaintiffs claims against them. The trial court granted both motions to dismiss in their entirety and rendered judgment dismissing the action. This appeal followed. The plaintiff claims that the trial court erroneously dismissed all of the plaintiffs claims, except those against this court and the New London Superior Court, which the plaintiff has not pursued on appeal. For the following reasons, we conclude that each of the trial court’s challenged rulings were proper and that the judgment must be affirmed.

I

CLAIMS AGAINST LEGISLATIVE DEFENDANTS AND THE STATE

The plaintiff seeks money damages, injunctive relief and a declaratory judgment that § 52-190a is unconstitutional, arguing that the legislative defendants acted unethically, in violation of state and federal law, when voting on proposed amendments to § 52-190a. Specifically, the plaintiff claims that the legislative defendants attempted to “derail,” for their own personal gain and enrichment, House Bill No. 6487,2011 Sess., a proposed amendment to § 52-190a that would have expanded the types of health care providers who could provide the opinion letter required under that statute, eliminated the requirement that the letter provide a detailed basis for the formation of the opinion, and permitted the dismissal of a medical malpractice complaint only if the plaintiff failed to file the opinion letter with the complaint and also failed to correct that defect within sixty days when ordered by the court to do so. The plaintiff does not allege precisely how the legislative defendants attempted to “derail” the bill, however, he claims that when several of the legislative defendants either objected to or raised questions about the bill, they were “promoting an unconstitutional law” in violation of the conflicts of interest rule under General Statutes § 1-85 because each of the legislative defendants has a relative or business that benefits from § 52-190a.

In response, the legislative defendants argue that: (1) sovereign immunity and absolute legislative immunity bar the plaintiffs state law claims against them in their official capacities; and (2) qualified immunity and lack of personal jurisdiction bar the plaintiffs federal law claims against them in their individual capacities. For the following reasons, we agree with the legislative defendants.

A

The Plaintiffs State Law Claims

We turn first to the plaintiffs claims against the legislative defendants in their official capacities for alleged violations of state law. The legislative defendants argue that sovereign immunity and absolute legislative immunity bar the plaintiffs claims against them. We agree.

“Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review.” (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. . . . [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest ... on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property. . . . Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Citations omitted; internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).

Our Supreme Court has recognized three exceptions to sovereign immunity: “(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiffs constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority.” (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).

The plaintiffs claims for declaratory and injunctive relief against the legislative defendants, and against the state, are barred by sovereign immunity because they do not satisfy any of these exceptions. The only exceptions to sovereign immunity that would apply to claims alleging constitutional violations and conduct in excess of statutory authority are the second and third, which require that the plaintiffs claim be “ ‘substantial.’ ” Id. “For a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests. . . . For a claim under the third exception, the plaintiffs must do more than allege that the defendants’ conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations. ... In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss ... is proper.” (Citations omitted; internal quotation marks omitted.) Id., 350.

The plaintiffs amended complaint makes only con-clusory allegations that § 52-190a violated his constitutional rights to equal access to court, separation of powers, equal protection, due process, and to trial by jury. None of the claims raised by the plaintiff allege a “substantial” claim that “clearly demonstrate [s] an incursion upon [his] constitutionally protected interests.” (Internal quotation marks omitted.) Id., 354.

The legislative defendants argue, and we agree, that the plaintiffs claims against them also are barred by absolute legislative immunity, provided by the speech or debate clause of the Connecticut constitution, which bars all relief against legislators who are carrying out legislative functions. “[0]nce it is determined that [m] embers [of the legislature] are acting within the legitimate legislative sphere the . . . [speech or debate c]lause is an absolute bar to interference.” (Internal quotation marks omitted.) Office of Governor v. Select Committee of Inquiry, 271 Conn. 540, 563, 858 A.2d 709 (2004). The plaintiff alleges in his amended complaint that the state legislative defendants “attempted to derail House Bill HB-6487,” either by voting against it or speaking about it on the Senate floor. Participating in such legislative debate and voting on proposed legislation undoubtedly constitutes “ ‘acting within the legitimate legislative sphere.’ ” Id. Thus, the plaintiffs state law claims against the legislative defendants in their official capacities are barred by sovereign immunity and absolute legislative immunity.

B

The Plaintiffs Federal Law Claims

The plaintiff also seeks money damages against the legislative defendants in their individual capacities for alleged violations of federal law. The legislative defendants argue that in addition to absolute legislative immunity, qualified immunity and lack of personal jurisdiction bar the plaintiffs claims against them. We agree.

“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” (Internal quotation marks omitted.) Ashcroft v. al-Kidd, 663 U.S. 731, 736, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). “[I]f it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful”; (internal quotation marks omitted) Amore v. Novarro, 624 F.3d 622, 630 (2d Cir. 2010); then qualified immunity applies. Qualified immunity bars the plaintiffs claims because he failed to establish that the legislative defendants violated a statutory or constitutional right or that their actions were not objectively reasonable.

The plaintiff also failed to serve process on the legislative defendants in their individual capacities at their usual places of abode, as required under General Statutes § 52-57 (a). Rather, the plaintiff served the legislative defendants only in their official capacities at the office of the attorney general. In the absence of proper service, the trial court lacked personal jurisdiction over the legislative defendants in their individual capacities. See Edelman v. Page, 123 Conn. App. 233, 243-44, 1 A.3d 1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010). Accordingly, the plaintiffs federal law claims against the legislative defendants in their individual capacities are barred by qualified immunity and lack of personal jurisdiction.

II

CLAIMS AGAINST JUDICIAL DEFENDANTS

The plaintiff makes several claims against the judicial defendants in both their official and individual capacities, under state and federal law, arising out of the court’s failure to declare § 52-190a unconstitutional. The judicial defendants argue that the plaintiffs claims are barred by absolute judicial immunity, qualified immunity, and lack of personal jurisdiction. We agree.

Absolute judicial immunity bars the plaintiffs state law claims against the judicial defendants in their official capacities. “It is a long-standing doctrine that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge.” Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630 (2000). The improper actions alleged by the plaintiff against Judge Parker of issuing incorrect legal rulings and orders in the plaintiffs malpractice and mandamus actions, applying unconstitutional laws, intimidating the plaintiff during hearings, engaging in ex parte communications, and requiring the plaintiff to obtain legal counsel for the claims of his wife’s estate, undeniably were actions taken in Judge Parker’s official judicial capacity. Thus, the plaintiffs claims against him are barred by absolute judicial immunity.

We arrive at the same conclusion with regard to the plaintiffs claim against appellate clerk Gannuscio, alleging that he wilfully refused to grant the plaintiffs motion for extension of time. “Clerks, like judges, are immune from damage suits for performance of tasks that are an integral part of the judicial process.” (Internal quotation marks omitted.) Chance v. Superior Court, United States District Court, Docket No. 3:04CV155 (MR) (D. Conn. December 13,2004). Because the determination of whether to grant or deny the plaintiffs motion for extension of time falls within the judicial function of a clerk under Practice Book § 66-1, the plaintiffs claim against Gannuscio is barred by absolute judicial immunity.

For the reasons set forth in part I B of this opinion, qualified immunity and lack of personal jurisdiction bar the plaintiffs claims for money damages against the judicial defendants in their individual capacities. The plaintiff has failed to allege facts sufficient to conclude that the judicial defendants’ conduct was outside the scope of their employment as judicial branch employees, or that such conduct rose to the level of being wanton, reckless or malicious. He also has failed to establish that the judicial defendants violated a statutory or constitutional right or that their actions were not objectively reasonable. Further, the plaintiff failed to serve process on the judicial defendants in their individual capacities at their usual places of abode, and thus, the court lacked personal jurisdiction over them.

Accordingly, the plaintiffs claims against the judicial defendants in both their official and individual capacities for alleged violations of state and federal law are barred by absolute judicial immunity, qualified immunity, and lack of personal jurisdiction.

III

CLAIMS AGAINST THE INSURANCE COMPANY

The plaintiff also appeals from the trial court’s judgment granting the motion to dismiss filed by the insurance company. The insurance company argues that this court should decline review of the court’s judgment dismissing the counts against it, which sought, inter alia, a writ of mandamus, because the plaintiff has failed to adequately brief this issue on appeal.

“An appellant who fails to brief a claim abandons it.” State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565 (1993). “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004); see DeLucia v. Burns, 11 Conn. App. 439, 444 n.7, 527 A.2d 1234 (bare assertions, without citations to legal authority evade meaningful appellate review), cert. denied, 205 Conn. 803, 531 A.2d 935 (1987). The plaintiffs initial brief is silent as to why the court’s dismissal of the counts against the insurance company was improper, and we decline to review any arguments advanced for the first time in his reply brief. See Mangiafico v. State Board of Education, 138 Conn. App. 677, 680-81 n.4, 53 A.3d 1066 (2012). Because the plaintiff has not adequately briefed his claim that dismissal of the counts against the insurance company was improper, we decline to review it.

The judgment is affirmed.

       General Statutes § 52-190a provides in relevant part as follows: “The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . . The claimant . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. . . .”

       Senator Terry Gerratana, Senator Robert Kane, Senator Tony Guglielmo, Senator Len Fasano, Senator Toni Boucher, Senator Jason Welch, Senator Toni Harp, Senator Kevin Witkos, Senator Michael McLachlan, Senator Anthony Musto, Senator Len Suzio, and Representative Prasad Srinivasan (legislative defendants).

       The Honorable Thomas F. Parker and appellate clerk Alan Gannuscio (judicial defendants).

       There are no specific allegations made by the plaintiff against the New London Superior Court and neither the plaintiff nor counsel for the state defendants have addressed in their briefs any claims asserted specifically against that court.

       The plaintiff stated in his oral argument on this appeal that he previously has withdrawn this court as a party to the underlying action. Additionally, neither the plaintiff nor counsel for the state defendants have addressed in their briefs any claims asserted specifically against this court.

       See footnotes 4 and 5 of this opinion.

       The constitution of Connecticut, article third, § 15, provides: “The senators and representatives shall, in all cases of civil process, be privileged from arrest, during any session of the general assembly, and for four days before the commencement and after the termination of any session thereof. And for any speech or debate in either house, they shall not be questioned in any other place.”