author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. LARRY RIGGSBEE
    (AC 29002)
    Bishop, Gmendel and Borden, Js.

      Argued November 20, 2008
    officially released February 24, 2009

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Larry Riggsbee, appeals from the judgments of conviction, rendered after a trial to the court, of assault in the third degree in violation of General Statutes § 53a-61 and criminal violation of a protective order in violation of General Statutes § 53a-223 (a), and from the judgments of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly failed to consider, sua sponte, consent as a defense to criminal violation of a protective order and (2) the evidence was insufficient to disprove beyond a reasonable doubt that he acted in self-defense in regard to the charge of assault in the third degree. We affirm the judgments of the trial court.

The court reasonably could have found the following facts. The defendant was placed on probation on February 3, 2006, following his conviction of two counts of assault in the third degree. The convictions stemmed from prior incidents between the defendant and the victim, Willie Frazier.

On June 8, 2006, Officer Richard Larock responded to a domestic violence complaint in the area of the New Haven green. Larock observed that Frazier was visibly shaken and had a bleeding, swollen lip, scratches, and grass and blood stains on her pants. Frazier and the defendant both testified that the defendant pushed her several times, cutting her lip and causing her to fall to the ground. Frazier sought medical treatment for her injuries. The defendant was arrested and charged with assault in the third degree as a result of this incident.

On June 9, 2006, in conjunction with the defendant’s arraignment on the assault charge from the previous day, the Superior Court issued a protective order against the defendant pursuant to General Statutes § 46b-38c (e) and ordered him to refrain from (1) entering Frazier’s dwelling, (2) having any contact in any manner with her and (3) coming within 100 yards of her.

On the evening of November 23, 2006, New Haven police were sent to Frazier’s residence on the report of a domestic complaint. While there, Officer Francisco Ortiz located the defendant hiding in a bathroom closet. Upon discovering the defendant, Ortiz asked for his name so that he could perform a warrant check. The defendant gave Ortiz a false name. While the warrant check of the false name revealed no record, a record check regarding Frazier revealed that an active protective order had been issued against the defendant in a matter in which Frazier was the alleged victim. After Ortiz requested and obtained a description of the defendant, he determined that the description matched the man he had found in the closet. Ortiz then asked the defendant if he was Larry Riggsbee. The defendant acknowledged his identity and claimed that he had initially lied because he was aware of the protective order. The defendant was, thereafter, arrested and charged with violating the outstanding protective order.

On the basis of the June 8 and November 23 incidents, the state charged the defendant with two counts of violation of probation in violation of § 53a-32, one count of assault in the third degree in violation of § 53a-61 and one count of criminal violation of a protective order in violation of § 53a-223. The defendant filed a motion for joinder of the charges, which was granted, and requested a court trial, which also was granted. On June 5, 2007, after a consolidated trial to the court, the defendant was found guilty on the charges of assault and violation of the protective order, and the court made a finding on both probation charges that he had violated his probation. The court sentenced the defendant to a total effective term of two and one-half years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly failed to consider, sua sponte, consent as a defense to criminal violation of a protective order. The defendant concedes that he failed to preserve this claim at trial and seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The defendant’s claim fails to satisfy Golding, and, therefore, he cannot prevail.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

In the present case, the defendant’s claim fails under the first prong of Golding because the record is inadequate for review. “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Necaise, 97 Conn. App. 214, 219, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006). In this instance, we cannot discern from the record whether the court considered consent as a defense to the charge regarding the protective order. Nowhere in its memorandum of decision does the court mention consent as a defense. Nowhere in the transcript do we find a claim by the defendant that Frazier’s consent to his presence in her home should be considered as a defense to the charge. Indeed, the defendant conceded at oral argument in this court that he did not raise consent as a defense at trial. Finally, because the defendant did not file a motion for articulation regarding the issue of consent and whether the court considered it to be a defense; see Practice Book § 66-5; we have no basis for knowing whether the court simply disregarded or failed to credit the defendant’s claim that Frazier had invited him to her home. Accordingly, because the defendant’s claim has no foundation in the record, it fails to satisfy the first prong of Golding.

In addition to the defendant’s request for Golding review, he claims that the court’s failure to consider consent as a defense was plain error. “Under Practice Book § 60-5, an appellate court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the [trial, but an appellate court] may in the interests of justice notice plain error not brought to the attention of the trial court. . . . The defendant cannot prevail under . . . [Practice Book § 60-5] however, unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Marrero, 66 Conn. App. 709, 720, 785 A.2d 1198 (2001). “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Martin, 100 Conn. App. 742, 749-50, 919 A.2d 508, cert. denied, 282 Conn. 928, 926 A.2d 667 (2007).

The defendant’s claim utterly fails in this regard. Other than the bald assertion of plain error, the defendant has not offered any evidence from which we could conclude that the court failed to embrace his defense of consent. We therefore will not afford plain error review to this claim. See State v. Kemler, 106 Conn. App. 359, 365, 942 A.2d 480 (court refused to consider plain error where defendant failed to adequately explain why claim merited such review), cert. denied, 286 Conn. 920, 949 A.2d 482 (2008).

II

The defendant next claims that because he asserted a claim of self-defense in regard to the assault charge, the evidence adduced at trial was insufficient to disprove beyond a reasonable doubt that he acted in self-defense during his altercation with Frazier. We do not agree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense . . . .” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 563, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007). Further, “[u]nder our Penal Code . . . the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 571.

The following additional facts are relevant to our discussion. Evidence adduced at trial demonstrated that on June 8, 2006, the defendant and Frazier argued at her apartment. The defendant then left the apartment with Frazier’s house keys and took a bus toward downtown New Haven. Frazier followed the bus with her car. Once the defendant exited the bus, Frazier approached him and requested that he return her keys. The defendant replied, “No, get away from me, bitch.” Thereafter, the defendant knocked her down three times and hit her in the face with his elbow, splitting her lip and causing her to bleed. During the altercation, Frazier struck the defendant, but the defendant testified that her “licks don’t bother me.” He further testified that he thought that the entire incident was “funny.” This evidence does not support the defendant’s contention that he acted in self-defense.

Connecticut’s self-defense statute, General Statutes § 53a-19 (a), provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .” The state, therefore, had to prove that the defendant did not believe that Frazier was using or would imminently use physical force on him or that he did not reasonably believe that the amount of force he used was necessary to defend himself.

The evidence at trial belies the defendant’s claim that he was in imminent danger of injury or that the use of force was necessary. Instead, he testified that he found the entire incident to be comical. Additionally, police officers who were called to the scene observed that Frazier had a swollen, bleeding lip, scratches, and grass and blood stains on her pants. The defendant, on the other hand, had no marks on his person. On the basis of the foregoing testimony, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant did not act in self-defense.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-38c (e) provides in relevant part: “A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, ipjury or intimidation by the defendant, including, but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the family dwelling or the dwelling of the victim. Such order shall be made a condition of the bail or release of the defendant and shall contain the following language: ‘In accordance with section 53a-223 of the Connecticut general statutes, any violation of this order constitutes criminal violation of a protective order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars, or both. . . .” (Emphasis added.)

       Although we do not reach the question of whether consent could be a defense to the charge of criminal violation of a protective order, nothing in this analysis should be read to suggest that this court embraces such a notion. We note, moreover, that in the criminal context, protective orders are issued not only for the protection of the alleged victims but also to promote the public peace. Indeed, many such orders are issued against the express wishes of the victims.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    WILLIAM BLACKER, JR., ET AL. v. MARK S. CRAPO
    (AC 28703)
    McLachlan, Haiper and Schaller, Js.

      Argued December 3, 2008
    officially released March 3, 2009

      James H. Lee, for the appellant (defendant).

      Patrick E. Power, for the appellees (plaintiffs).
   Opinion

McLACHLAN, J.

The defendant contractor, Mark S. Crapo, appeals from the judgment of the trial court determining that he breached his contract with the plaintiff homeowners, William Blacker, Jr., and Terri Blacker, violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and committed a trespass against the plaintiffs. The defendant claims that the court improperly (1) concluded that he violated CUTPA, (2) concluded that he breached his contract with the plaintiffs and (3) found that he received a certified letter from the plaintiffs’ attorney before beginning work on the plaintiffs’ roof. We affirm the judgment of the trial court.

The plaintiffs commenced this action in October, 2005, with a three count complaint alleging (1) numerous violations of CUTPA, (2) breach of contract and (3) trespass. The defendant filed an answer, together with a claim of setoff and a counterclaim. In his claim of setoff and counterclaim, the defendant alleged that the plaintiffs had breached their contractual obligations. The claims and counterclaim were tried to the court on January 18 and 23, 2007.

The court found the following undisputed facts. The plaintiffs hired the defendant to add a sunroom with screened windows to their home, to replace some siding and to install some windows and doors. When the parties first met in April, 2004, the plaintiffs indicated to the defendant that they wanted work to start in June, 2004. Approximately one week after the contract was signed in June, 2004, the plaintiffs gave the defendant three checks totaling $23,000 as a deposit on the contract price of $84,758.

No work was performed by the defendant in 2004, and, after numerous discussions, the parties executed an “Additional Work Authorization/Change Order” on May 3, 2005, adding to the defendant’s repair work and increasing the contract price to $103,686. Still, no work was performed by the defendant. On July 15, 2005, the plaintiffs’ attorney sent two copies of a letter, by regular and certified mail, to the defendant, stating that the plaintiffs considered the defendant to be in breach of their agreement and demanding the return of their deposit. The letter further stated that all communications should be directed to the plaintiffs’ attorney and that any entry by the defendant onto the plaintiffs’ property would be considered a trespass. On July 18, 2005, the defendant and his employee, Ryan Basso, arrived at the plaintiffs’ home and began ripping shingles off the roof.

The court found William Blacker’s testimony credible, noting that he responded to questions naturally and credibly, and that he was honest, guileless and patient. The court also found that the defendant was untruthful, evasive and manipulative of both facts and people and that his testimony “was evasive and not at all credible." (Emphasis added.) The court stated that the defendant’s “lack of honesty so permeated his testimony that the court disbelieves all of his testimony regarding the date of the original contract, that it was okay with the [plaintiffs] that he not begin work on their home until July 18, 2005, or his explanation of different start and completion dates on various versions of the contract and change orders.”

The court then made the following relevant factual findings. The operative contract was plaintiffs’ exhibit one, executed June 12, 2004. The contract included a typed start date of August, 2004, which was struck at a later time and a handwritten notation added: “On or around July 1st 2005 (June 15th at the soonest).” That notation was written with a different ballpoint pen from that used for the signatures dated June 12,2004. William Blacker testified that he made it known in June, 2004, that he wanted the work to start as soon as possible, with most of it completed before winter, a reasonable expectation considering the date of the contract and the amount of the deposit required. Plaintiffs’ exhibit two is not the original agreement; it lacks the plaintiffs’ signatures on page one and lacks the defendant’s signature on page two.

The court also found that the parties contracted for the sale of consumer goods and services and that the transaction was a “home solicitation sale” as provided by General Statutes § 42-134a. The defendant failed to provide the notices of cancellation required by the Home Solicitation Sales Act, General Statutes § 42-134a et seq. A two line notice provided in plaintiffs’ exhibit one did not advise the plaintiffs of that which they were required to execute and to deliver to the defendant if they wanted to cancel the contract, and it did not advise them that they would receive a refund of their deposit upon timely cancellation. No notice of cancellation was left with the plaintiffs in June, 2004.

Moreover, the court found that the defendant received the letter from the plaintiffs’ attorney by regular mail on either July 16 or 18,2005. There was no other explanation for the defendant’s sudden appearance at the plaintiffs’ home, without any notice, shortly before his plans to travel to Latvia for one week. The defendant’s receipt of the letter also was corroborated by the deposition testimony of Basso. Basso testified that the defendant stated more than once during the morning of July 18,2005, that upon arrival at the plaintiffs’ house, they should immediately get on the roof and start ripping off shingles because the defendant believed that the plaintiffs wanted to back out of the contract and once the job was started, the plaintiffs could no longer do so. In addition, the defendant and Basso continued to work after William Blacker came out of the house on July 18, 2005, and told the defendant to get off his roof and property and stated that the plaintiffs’ attorney had written the defendant a letter. After police responded to William Blacker’s call, they arrived to find both men still on the roof and William Blacker yelling at them to come down. The defendant denied receiving any letter and explained his refusal to stop work by stating that there was “weather coming in” and he had a “job to do.” William Blacker told the police officer that he did not want the defendant arrested but that he did not want the defendant to continue to remove shingles and that he wanted the unprotected roof covered. The defendant did not stop working “until dark” and continued to remove shingles from the roof and unload equipment from his truck onto the plaintiffs’ property. In addition, the defendant left piles of debris on the plaintiffs’ lawn.

Furthermore, the court found that the defendant “came to the home when he did knowing [that William Blacker] believed him [to be] in breach of the contract and, once convinced [that William Blacker’s] patience had finally been exhausted, [the defendant’s] refusal to stop work was an effort to ‘save’ a contract [William Blacker] no longer wished to honor.” The defendant’s insistence that he did not receive the letter prior to beginning work was not credible in light of his impending trip to Latvia the following week, his failure to give the plaintiffs notice that he intended to start work on their home, his conduct on July 18, 2005, including his instructions and statements to Basso and his refusal to stop work when first William Blacker and then a police officer instructed him to leave the property.

Additionally, the court found that the defendant struck the original start date of “August 2004” on the contract after the parties agreed on the change order on May 3, 2005. The defendant then added the June and July, 2005 start dates and a completion date of August, 2005, because no work had been started. The plaintiffs expected that work would begin after they paid the defendant $23,000 in June, 2004. The defendant had no credible excuse for not beginning work in 2004, which was unreasonable because he retained the deposit. The defendant breached his contract with the plaintiffs, and, by “any objective standard,” the time to cure had expired by July 18,2005. The plaintiffs could be compensated only by a return of the full amount of the deposit.

Finally, the court found that the defendant’s breach of contract was accompanied by additional actions and circumstances that established CUTPA violations. The defendant deceived the plaintiffs into believing that the work would be done on the schedule they desired but did not begin work until more than one year had passed. Even after that time, and after they had to contract with another person to complete the roof the defendant opened, the defendant withheld the plaintiffs’ deposit. The plaintiffs initially contacted the defendant in response to his advertisement, and the resulting transaction, ahorne solicitation sale, made his conduct violations of both the Home Solicitation Sales Act and the Home Improvement Act, General Statutes § 20-418 et seq. The defendant’s conduct in violating both statutes and in failing to return the plaintiffs’ deposit was offensive to Connecticut’s expressed commitment to shield consumers from the “deceitful and high-handed, high-pressure tactics” the defendant used on July 18, 2005.

Accordingly, the court rendered judgment in favor of the plaintiffs on all of the claims and the counterclaim. On the first count, the court awarded the plaintiffs $23,000 with statutory interest of 10 percent from July 16,2005, until the date of payment. On the second count, the court awarded punitive damages of $10,000 and costs to the plaintiffs. On the third count, the court ordered the defendant to pay nominal damages of $1.

I

The defendant first claims that the court improperly concluded that he violated CUTPA. Specifically, the defendant claims that the court improperly found that he had not provided the plaintiffs with a notice of cancellation rights as required by General Statutes § 42-135a (2). We disagree.

William Blacker testified at trial that he did not recall the defendant’s giving him or Terri Blacker a notice of cancellation in June, 2004. He testified, however, that the defendant brought a notice of cancellation on May 3, 2005, “because [the plaintiffs] didn’t get it the year before.” William Blacker testified that plaintiffs’ exhibit four was the notice of cancellation that he received on May 3, 2005. Additionally, he testified that he had written “6/12/04” on the notice because that was the date the defendant wrote above, but then noted “(5/3/05)” in pencil next to that because he “wanted to write the date down that [he] actually signed it.” Furthermore, he testified that he believed he wrote “6/12/04” on May 3, 2005, but was not positive. William Blacker also testified that plaintiffs’ exhibit four was the “pink copy” of a multilayer form. Defendant’s exhibit three contains the white and yellow copies of the notice of cancellation. After comparing both exhibits, William Blacker testified that the pink copy did not have his original signature but a “carbon” copy that had carried down from the top layer. He testified that his and Terri Blacker’s original signatures were on defendant’s exhibit three. William Blacker testified that the white and yellow copies contained only the date “6/12/04” because he wrote “5/3/ 05” on the pink copy when he received it from the defendant on May 3, 2005.

Terri Blacker testified that she did not recall ever receiving a notice of cancellation in June, 2004. She testified that she remembered receiving a notice of cancellation only on May 3, 2005, despite the fact that it is dated June 12, 2004. Terri Blacker testified that her original signature was on the white copy and that when she signed it, the only date present was June 12, 2004. Terri Blacker also testified that the top two copies were kept by the defendant.

The defendant testified that the white, yellow and pink sheets were together when they were signed by the plaintiffs on June 12, 2004. The defendant also testified that after it was signed, he tore off the pink copy and gave it to the plaintiffs. Finally, the defendant testified that he retained physical possession of the white and yellow copies until trial.

The court stated in its memorandum of decision that credibility determinations greatly influenced the court’s findings and orders. The court found William Blacker credible and stated that his “testimony that no [n]otice of [c]ancellation was left with him in June of 2004 [established] . . . a violation of [§ 42-135a (2)].” Additionally, the court found the defendant “evasive and not at all credible.” (Emphasis added.) Thus, the court found that the defendant violated the Home Solicitation Sales Act and consequently the Home Improvement Act and CUTPA.

The court’s finding that the defendant failed to provide the plaintiffs with a notice of cancellation is subject to a clearly erroneous standard of review. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Francisco R., 111 Conn. App. 529, 535-36, 959 A.2d 1079 (2008). The court, as the sole arbiter of credibility, is “free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008).

The defendant challenges the court’s findings regarding his violation of the Home Improvement Act. General Statutes § 20-429 (a) of the Home Improvement Act provides in relevant part that “[n]o home improvement contract shall be valid or enforceable against [a homeowner] unless it: (1) [i]s in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor’s registration number, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of [the Home Solicitation Sales Act], (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . .” “Because § 20-429 (a) (6) incorporates the provisions of the [Home Solicitation Sales Act] by reference, it is also necessary to consider those provisions. The section of the [Home Solicitation Sales Act] that pertains to notice of cancellation is § 42-135a. That section provides in relevant part that it is the duty of the seller of the services to furnish [to] each buyer ... a completed form in duplicate, captioned NOTICE OF CANCELLATION, which shall be attached to the contract . . . and to complete both copies of the latter form, before furnishing them to the buyer, by entering [onto the forms] the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation. . . . Thus, the plain language of these sections requires home improvement contractors to furnish two copies of the notice of cancellation to the homeowners with whom they contract to undertake home improvement services by attaching two copies of the notice to the back of the homeowner’s copy of the contract and that each of the copies specifies the date of the transaction and the date by which the contract may be canceled. . . .

“In construing § 20-429 (a), this court consistently has held that the requirements of that section are mandatory and that a contractor is precluded from enforcing a home improvement contract that does not satisfy its requirements.” (Emphasis added; internal quotation marks omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 227-28, 720 A.2d 235 (1998).

The defendant claims that the court improperly found that he failed to provide the plaintiffs with the notice of cancellation rights required by the Home Solicitation Sales Act. The defendant argues that the evidence does not support this finding because (1) each party put its copy of the notice of cancellation into evidence, (2) the notices of cancellation in evidence were dated June 12, 2004, (3) William Blacker testified that the plaintiffs may have seen the forms on June 12, 2004, but he could not find one and the defendant brought the pink copy to his house on May 3, 2005, and (4) Terri Blacker did not testify that she had not received a notice on June 12, 2004, but only that she did not recall receiving one. The defendant thus argues that “the plaintiffs’ testimony was not that they had not been given the notice of [cancellation] in June, 2004, but that they did not remember. This is not enough to support a finding that they had not been given the notice.” We disagree.

The court’s finding was well supported by the plaintiffs’ testimony. The court had before it evidence that the defendant had withheld the three signed copies of the notice of cancellation until May 3, 2005. The plaintiffs testified that they did not recall receiving a copy of the notice of cancellation on June 12,2004, the defendant testified that there were three copies of the original notice of cancellation and that he kept two of the copies until the date of trial, the plaintiffs testified that they received the pink copy on May 3, 2005, and the pink copy carried the date May 3, 2005, written next to the date June 12, 2004. The court was free to disbelieve the defendant’s testimony that he presented the plaintiffs with the pink copy on June 12, 2004, and to believe that the plaintiffs had not received that copy until May 3, 2005. See Somers v. Chan, supra, 110 Conn. App. 530. The evidence before the court was sufficient to sustain the court’s finding that the plaintiffs received no notice of cancellation rights in June, 2004. We cannot say that “there is no evidence in the record to support it . . . [or that we are] left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Francisco R., supra, 111 Conn. 535-36.

II

The defendant also claims that the court improperly concluded that he breached his contract with the plaintiffs. Specifically, the defendant claims that the court improperly found that (1) the date for his performance was not changed by agreement and (2) time was of the essence. The plaintiffs assert that the court did not improperly conclude that the defendant committed a material breach of contract and, in the alternative, that the court’s order of $23,000 plus interest could be affirmed on the alternate ground that the contract was invalid and unenforceable against the plaintiffs under §§ 20-429 (a) (6) and 42-135a due to the defendant’s failure to provide the plaintiffs with the required notice of cancellation. Having concluded in part I that the court properly found that the defendant failed to provide the plaintiffs with a notice of cancellation in June, 2004, we agree with the alternate ground suggested by the plaintiffs, and we need not address the court’s analysis of the breach of contract.

“Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).” (Internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, 373, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008). We “may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 553-54 n.14, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004). Affirmance on alternate grounds is possible, however, only when the “result is required by law.” Shaw v. L. A. Socci, Inc., 24 Conn. App. 223, 227, 587 A.2d 429 (1991).

As we noted previously, § 42-135a required the defendant to provide the plaintiffs with notice of cancellation, completed in duplicate, at the time of the execution of the home solicitation sale agreement. Section 42-135a provides that unless that requirement is satisfied, “[n]o agreement in a home solicitation sale shall be effective against the buyer . . . .” Accordingly, the plaintiffs’ letter to the defendant indicated their intention not to be bound by the home solicitation sale and created in the defendant the responsibility to return the plaintiffs’ deposit. This conclusion necessarily follows from the court’s findings that (1) the defendant failed to provide the plaintiffs with the required notice of cancellation, (2) the plaintiffs gave the defendant a $23,000 deposit in June, 2004, (3) the plaintiffs requested their deposit back from the defendant in July, 2005, because of the defendant’s failure to begin work after more than thirteen months from the original start date, (4) the defendant had not returned the deposit as of the date of judgment and (5) the plaintiffs could be made whole only by the defendant’s return of the deposit.

Ill

Finally, the defendant claims that the court improperly found that “the defendant had received the plaintiffs’ attorney’s certified letter of July 15,2005 by regular mail on the 16th or the morning of the 18th . . . and the conclusions that depend on it must fall.” Specifically, the defendant claims that the court’s findings that (1) he had received the letter via regular mail either on July 16, 2005, or the morning of July 18, 2005, and (2) the defendant’s and his wife’s testimony that they did not receive the letter via certified mail until the afternoon of July 18, 2005, was not credible are clearly erroneous.

The court found, “[the defendant’s] protestations to the contrary, that [the defendant] received counsel’s letter by regular mail either on Saturday, July 16, 2005, (when [William Blacker] received his copy) or early on the morning of Monday, July 18,2005.” When addressing the plaintiffs’ third count, however, the court stated that “[a] fair reading of the third count makes clear [that] the plaintiffs base their cause of action in trespass on the defendant’s refusal to leave the property once requested to leave by both [William Blacker] and the investigating officer.” (Emphasis added.) The court, therefore, addressed the plaintiffs’ trespass claim solely on that ground. Thus, whether or not the challenged finding is clearly erroneous, it is not material to the challenged conclusion. See Colliers, Dow & Condon, Inc. v. Schwartz, 88 Conn. App. 445, 446 n.2, 871 A.2d 373 (2005). The defendant has not challenged any of the factual findings on which the court decided the trespass claim and has not otherwise challenged the court’s legal conclusions. Accordingly, even if we assume that the court’s finding is clearly erroneous, we can offer no relief.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant asked the plaintiffs for three checks in the amounts of $8000, $8000 and $7000. In 2004, the defendant had a business account at his bank but did not deposit the checks into his account, choosing instead to present each check for cash at the plaintiffs’ bank in the same town, on June 23, 24 and 29, 2004.

       The court found, in response to the defendant’s counterclaim, that the plaintiffs had more than sufficient cause and justification to order the defendant off of their property, the plaintiffs were not in breach of contract, the defendant was responsible for any damages he suffered by starting the roof work, the defendant’s conduct on July 18, 2005, was wilful and unprofessional and, therefore, the defendant was not entitled to any recovery under the contract.

       The court made no explicit credibility determination as to Terri Blacker, whose testimony was largely cumulative of William Blacker’s testimony.

       The plaintiffs entered two contracts as full exhibits, plaintiffs’ exhibits one and two. The defendant also entered two contracts as full exhibits, defendant’s exhibits one and two.
      The pair of exhibits one are copies of the same “Proposal/Contract,” evidently executed in duplicate by the plaintiffs and the defendant. Plaintiffs’ exhibit one consists of only one page, signed and dated June 12, 2004, by all three parties. Defendant’s exhibit one consists of two pages; the first page is signed and dated June 12, 2004, by all three parties, and the second page is signed and dated June 12, 2004, by the plaintiffs only.
      Similarly, the pair of exhibits two were both copies of another “Proposal/ Contract.” Plaintiffs’ exhibit two bears the defendant’s signature dated June 12, 2004, on only page one and the plaintiffs’ signatures dated May 3, 2005, on only page two. Defendant’s exhibit two contains all three signatures on the first page, but only the defendant’s signature is dated June 12, 2004, and only the plaintiffs’ signatures dated June 12, 2004, are on the second page.

       The court awarded attorney’s fees of $5000 on April 2, 2007, after an additional hearing.

       The defendant also challenges the court’s findings that he (1) breached his contract with the plaintiffs, (2) deceived the plaintiffs about when he would complete work under the contract and (3) refused to return the plaintiffs’ deposit within ten days of their demand. The defendant, however, failed to provide appropriate references to facts and legal analysis. See Practice Book § 67-4 (d). “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. ... It is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately.” (Citations omitted; internal quotation marks omitted.) Mundell v. Mundell, 110 Conn. App. 466, 478, 955 A.2d 99 (2008). Accordingly, we decline to review these claims.

       General Statutes § 42-141 (b) provides in relevant part: “Violation of any of the provisions of sections 42-135a ... or failure to honor any provisions of the notice of cancellation required by this chapter shall constitute an unfair or deceptive act or practice as defined by [CUTPA].”

       The defendant does not challenge the legal conclusion that his transaction with the plaintiffs was subject to the Home Improvement Act and the Home Solicitation Sales Act. Nor does he challenge the legal conclusion that a failure to provide any notice of cancellation constitutes a violation of those acts. The defendant challenges only the factual finding of the court that he failed to provide such a notice.

       The defendant argues in his reply brief that the court could have determined, under the reasoning of Wright Bros. Builders, Inc., that at least one but fewer than four copies of the notice of cancellation were sufficient to satisfy § 42-135a (2). Because we conclude that the court’s finding that no notice of cancellation was received in June, 2004, was not clearly erroneous, we decline to address his argument.

       The court set interest from the date it found “the defendant first learned of the plaintiffs’ demand” for the return of their deposit. The defendant did not challenge the award of interest. In the absence of such a challenge, we will not review the propriety of the court’s award of statutory interest.

       Because a homeowner may lose the protection of the Home Improvement Act if he or she invokes it in bad faith, “[o]rdinarily, a new trial would be required to afford the [contractor] the opportunity to prove that the [homeowner] repudiated the contract in bad faith. The bad faith exception, however, is intended to preclude a homeowner from unfairly invoking the [Home Improvement Act] [t]o deny the contractor any opportunity of recovery after he has completed his end of the bargain. . . . Because the bad faith exception may not be used by a contractor to recover on a restitutionary theory when . . . the contractor has not performed any of the home improvement services contemplated by the contract, the [contractor] cannot recover even if it can establish that the [homeowner] repudiated the contract in bad faith.” (Citations omitted; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 681-82, 657 A.2d 1087 (1995).
      Thus, because the defendant performed work on the plaintiffs’ roof only after he received notice that they would not be bound by the agreement, no remand is required in this case. We also note that the court found that the plaintiffs had more than sufficient cause and justification to order the defendant off of their property and that his damages, if any, “were as a result of his own undertaking of the roof work when told he was to leave the property, conduct that was wilful and unprofessional.”

       The defendant makes no reference in his argument to which conclusions must fall, but we find the necessary reference in his conclusion: “On the third count, the judgment should be reversed because the supporting finding that the defendant had received counsel’s letter is itself unsupported by the evidence.” Thus, we construe the defendant’s challenge to be directed at the third count.
      Because the defendant has provided no further analysis, he has abandoned challenges to the court’s other legal conclusions that may have found their support in the challenged factual findings. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims. . . . We decline, therefore, to review the plaintiffs claims and deem them abandoned.” (Internal quotation marks omitted.) State v. Linarte, 107 Conn. App. 93, 104-105 n.6, 944 A.2d 369, cert. denied, 289 Conn. 901, 957 A.2d 873 (2008).


author: BERDON, J.

text:
    CHARLES GREY ET AL. v. CONNECTICUT INDEMNITY SERVICES, INC., ET AL.
    (AC 29319)
    DiPentima, McLachlan and Berdon, Js.

      Argued November 17, 2008
    officially released March 3, 2009

      Joseph F. Merly, with whom, on the brief, was John R. Williams, for the appellant (defendant Roberta Spinnato).

      William P. O’Brien, for the appellees (plaintiffs).
   Opinion

BERDON, J.

The defendant Roberta Spinnato, who does business as Statewide Renovations, appeals from the judgment of the trial court in favor of the plaintiffs, Charles Grey and Margaret Grey, on their claim for breach of contract. On appeal, the defendant claims that the court improperly concluded that she had waived her contractual right to arbitration and that the plaintiffs had not waived their contractual claim for attorney’s fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The plaintiffs’ house was damaged by fire. Initially, they entered into a written contract with the defendant for the repair of their house, and subsequently they amended the contract to provide for the construction of an addition. The contract was a form agreement prepared by the defendant, which provided for arbitration in the event of a dispute between the plaintiffs and the defendant and an award of attorney’s fees to the prevailing party in the event of arbitration or litigation. Neither the original contract nor the addendum, however, provided specifications for the work that was to be completed.

In February, 2001, the defendant commenced work on the plaintiffs’ house. By June, 2001, however, the defendant stopped working on the house. On July 12, 2001, the plaintiffs wrote to the defendant, informing her that “because they had not received a budget detailing the scope of the project and the cost, had not received [specifications], [the defendant] had ceased work on the project, the house was exposed to the elements, [and the defendant] could not meet the completion date provided for in the contract, they were terminating the relationship.” Thereafter, the plaintiffs retained a general contractor to complete the project and commenced this action against the defendant, alleging breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In their prayer for relief, the plaintiffs claimed compensatory damages, punitive damages, damages under CUTPA, costs of litigation, attorney’s fees and such other relief as the court deemed equitable.

The trial date was scheduled for May 10, 2006. On the afternoon of May 9, 2006, after almost three years of extensive pretrial litigation, the defendant moved to compel arbitration pursuant to the contractual arbitration provision. The court denied the defendant’s motion, finding that she had waived her right to arbitration, and the case proceeded to trial. The court initially rendered its decision, awarding the plaintiffs approximately $81,000 on their claim for breach of contract. The court, however, declined to award the plaintiffs any punitive damages or attorney’s fees under CUTPA. Thereafter, both parties moved for reconsideration. The plaintiffs argued that the court failed to address the issue of attorney’s fees under the contract. The defendant argued that the court improperly refused to grant her motion to compel arbitration and that the plaintiffs had waived their claim for attorney’s fees under the contract. After reconsideration, the court found that the plaintiffs had not waived their claim for attorney’s fees under the contract, and, therefore, they were entitled to recover their attorney’s fees in the amount of $41,038.30. The court also reaffirmed its finding that the defendant had waived her right to arbitration. This appeal by the defendant followed.

We begin with our standard of review of a trial court’s finding of waiver. Whether a waiver has occurred is a question of fact. Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 239, 926 A.2d 1 (2007). “Our review of the trial court’s determination [therefore] is guided by the principle that, because waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous.” (Internal quotation marks omitted.) Id. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 60, 783 A.2d 1145 (2001), on appeal after remand, 85 Conn. App. 233, 857 A.2d 362 (2004).

I

The defendant claims that the court improperly found that she had waived her right to arbitration. “It is well established that an arbitration clause may be waived by the parties or by the one entitled to its benefit.” (Internal quotation marks omitted.) Stevens v. Hartford Accident & Indemnity Co., 39 Conn. App. 429, 436, 664 A.2d 826 (1995). “The essential question is whether, under the totality of the circumstances, the . . . [party claiming arbitration] has acted inconsistently with the arbitration right.” Id. On appeal, our inquiry is whether the record contains evidence from which the court reasonably could have found that the defendant acted inconsistently with her right to arbitration. See Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, supra, 102 Conn. App. 239.

The plaintiffs filed their complaint in July, 2003. The defendant filed several motions before answering the plaintiffs’ complaint. Thereafter, the parties conducted written discovery, sought depositions, conducted court annexed mediation and engaged in trial management conferences. During this time, the defendant sought numerous continuances. On the eve of trial, the defendant moved to compel arbitration after almost three years of litigation. The court found, after oral argument, that the defendant had waived her right to arbitration. We conclude that the court reasonably could have found that the defendant acted inconsistently with her contractual right to arbitration and waived that right.

II

The defendant next claims that the court improperly found that the plaintiffs had not waived their claim for attorney’s fees under the contract. The defendant argues that the plaintiffs waived their claim for attorney’s fees under the contract because they did not claim them until after the court had denied their claim for attorney’s fees under CUTPA. The defendant also argues that the plaintiffs’ posttrial brief, which stated that the “plaintiffs are entitled to recoup all of their attorney’s fees since they are recoverable for a violation of CUTPA,” is evidence that the plaintiffs did not seek attorney’s fees under the contract until after the court rendered its original decision.

In its memorandum of decision on the parties’ motions for reconsideration, the court stated that the reason why attorney’s fees initially were not awarded was that the court interpreted the plaintiffs’ posttriai brief as asserting CUTPA as the only basis for awarding attorney’s fees. Upon reconsideration, however, the court found that the “plaintiffs clearly proved their right to counsel fees pursuant to the contract.” Our review of the record supports the court’s finding. The plaintiffs’ complaint included a separate prayer for relief seeking attorney’s fees. The claim for attorney’s fees was no more associated with the CUTPA claim than it was with the breach of contract claim. Further, the plaintiffs’ counsel stated at trial that the plaintiffs’ damages included attorney’s fees. At that time, the court specifically asked the plaintiffs’ counsel whether the contract provided for attorney’s fees, to which he replied, “I believe so, Your Honor.” The court awarded attorney’s fees in the amount of $41,038.30. We conclude that the court reasonably could have found that the plaintiffs did not waive their claim for attorney’s fees under the contract.

Accordingly, the court’s finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint also named as defendants Connecticut Indemnity Services, Inc., Neil Ranciato, Joseph Celotto and Peter Ranciato. These defendants are not parties to this appeal. All references to the defendant are to Roberta Spinnato.

       The court pointed out that in his affidavit, the plaintiffs’ counsel sought 541,038.30 for counsel fees. The court allowed the defendant fourteen days in which to contest this amount. The defendant did not do so.


author: DUPONT, J.

text:
    STEVEN NECAISE v. COMMISSIONER OF CORRECTION
    (AC 29285)
    Bishop, Harper and Dupont, Js.

      Argued December 10, 2008
    officially released March 3, 2009

      Martha Hansen, special public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner, Steven Necaise, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following the denial, the court granted the petition for certification to appeal to this court. On appeal, the petitioner claims that the court improperly concluded that he failed to produce sufficient evidence in support of his claims that he was deprived of effective assistance of counsel. We affirm the judgment of the habeas court.

The facts that provide the background for the petitioner’s appeal are restated from this court’s prior decision in State v. Necaise, 97 Conn. App. 214, 216-17, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006). “On September 14, 2001, at approximately 6:30 p.m., the victim, Samuel Rosa, was driving in the right lane of State Street Extension in Bridgeport and stopped at the intersection with Dewey Street. While the victim’s vehicle was stopped at the intersection, the [petitioner] drove his white Lexus next to the victim’s vehicle in the left lane of State Street Extension. As the victim began to turn right onto Dewey Street, the [petitioner] also turned right onto Dewey Street, thereby cutting in front of the victim and blocking his way. Both cars then came to a stop, and the two men exited their vehicles. The two men began to argue and engaged in a physical altercation. At one point, the two men separated, and the victim turned his back to the [petitioner], who then struck him from behind. The two men then resumed fighting, and the [petitioner] pulled a knife from his back pocket and slashed the victim across the face. After slashing the victim, the [petitioner] returned to his vehicle and fled the scene.

“Following an investigation by the Bridgeport police department, the state charged the [petitioner] in a substitute information with assault in the first degree in violation of [General Statutes] § 53a-59 (a) (1). On April 24, 2003, the jury found the [petitioner] guilty of this offense. On the basis of this incident, the [petitioner] also was charged with two counts of violation of probation in contravention of [General Statutes] § 53a-32. On April 30, 2003, the court found that the [petitioner] had violated the conditions of his probation and revoked both probations. On July 16, 2003, the court imposed on the [petitioner] a total effective sentence of twenty years incarceration followed by five years of special parole.”

On November 6,2006, the petitioner filed an amended habeas corpus petition, alleging that his trial counsel provided ineffective assistance on the basis of the following four omissions: (1) failure to pursue discovery properly as to the identification of the petitioner; (2) failure to protect the petitioner’s right to a fair trial by not informing the court that the petitioner heard two jurors discussing the case prior to deliberations; (3) failure to pursue discovery adequately as to the criminal record of the victim for impeachment purposes and (4) failure to file a motion to suppress the identifications of the petitioner made by the victim. The court denied the petition on the ground that the petitioner had failed to produce sufficient evidence in support of his claims at his hearing. On appeal, the petitioner claims that he set forth sufficient evidence that his trial counsel’s representation was deficient in (1) failing to file a motion to suppress the identifications of the petitioner and (2) failing to address the issue of possible juror misconduct with the trial court.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . .

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ....

“Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citations omitted; internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn. App. 509, 511-12, 948 A. 2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008). With these principles in mind, we address in turn the petitioner’s claims.

I

The petitioner’s first claim is that the court improperly concluded that he failed to present sufficient evidence to support his claim that his trial counsel’s representation was deficient in that counsel failed to file a motion to suppress the identifications of the petitioner made by the victim. We disagree.

The following additional facts are relevant to the petitioner’s claim and are restated from State v. Necaise, supra, 97 Conn. App. 214. “The victim made two out-of-court identifications of the [petitioner]. The first identification was made on September 14, 2001, shortly after the incident occurred. That night, Juan R. Gonzalez, a detective with the Bridgeport police department, went to the hospital where the victim was being treated. Gonzalez testified that he showed the victim a photograph of the [petitioner], and the victim identified the [petitioner] as the person who had been involved in the incident. At that time, Gonzalez was unable to take a statement from the victim because he was being prepared for surgery and already had been administered a sedative. The victim, however, testified that he had no recollection of being shown any photographs on the night of the incident.

“The second identification was made on October 9, 2001. At that time, Gonzalez interviewed the victim, who gave him a description of his assailant. Gonzalez then showed the victim an eight person photographic array. From this array, the victim identified the [petitioner] as the assailant. On October 16, 2001, Gonzalez again interviewed the victim, who affirmed his identification from the photographic array and stated that he recognized the [petitioner] as the person who assaulted him.” Id., 218.

The petitioner argues that the first prong of Strickland is satisfied because a reasonable attorney would have moved to suppress the identifications, as the theory of defense was misidentification. The respondent, the commissioner of correction, counters that the theory of the petitioner’s defense was actually self-defense, and, therefore, it would have been entirely frivolous for an attorney to move to suppress the identifications. At the petitioner’s habeas hearing, his trial counsel stated on direct examination that the theory of defense was self-defense but on cross-examination stated that he pursued the theory of misidentification. In our decision in State v. Necaise, supra, 97 Conn. App. 226 n.10, we stated that “[t]he crux of the [petitioner’s] case was that he was not the assailant,” i.e., misidentification. Thus, there is some confusion as to this issue. Nevertheless, even if this court assumes that the failure to file a motion to suppress was deficient performance, in satisfaction of the first prong of Strickland, the petitioner fails to satisfy the prejudice prong of Strickland because he did not provide proof at his habeas trial that such a motion had any chance, much less a reasonable probability, of success.

At his habeas proceeding, the petitioner testified that he asked his trial counsel to file a motion to suppress the identifications made by the victim because he thought the procedures were suggestive and the victim did not make a positive identification, but counsel refused to do so stating that “he didn’t need it.” The petitioner, however, produced no evidence as to how the identification procedures used by the police were unnecessarily suggestive and unreliable. Because no evidence was produced as to the suggestiveness or unreliability of the identification procedures, there was no evidence that had his trial counsel filed a motion to suppress the identifications, it would have been granted by the trial court. As there was no evidence as to whether the motion to suppress would have been successful, the petitioner has failed to show that there is a reasonable probability that the alleged deficiency affected the outcome of his case. The petitioner has not met his burden of proof with respect to the prejudice prong of the Strickland test. Therefore, his first claim of ineffective assistance of counsel fails.

II

The petitioner’s second claim is that the court improperly concluded that he failed to present sufficient evidence to show that his trial counsel’s representation was deficient in that counsel failed to address potential juror misconduct with the trial court. We disagree.

At the habeas proceeding, the petitioner testified that at his trial, during a recess prior to deliberation, he was seated near the jury room and heard three female jurors say that “if he knew how to fight, [he] wouldn’t be in the position . . . [he] is now.” The petitioner further stated that he shared this information with his trial counsel, who told him that “he did not want to inflame the jury” and so he would not bring it to the court’s attention. His trial counsel, however, testified at the habeas proceeding that he had no “independent recollection” of this event, but if a client had informed him about potential juror misconduct and he “thought it was of some significance to the integrity of the trial, [he] would have brought it to the attention of the [c]ourt and the state.” His trial counsel also testified that in his career as a defense attorney, he has been faced with many incidents of juror misconduct, which he has reported, and at least one ended in a mistrial, “[b]ut [he did not] have any recollection in this case that there was some aberration or something of any significance [occurring].” Trial counsel concluded that if something of significance had occurred, he would have utilized it to cause a mistrial and would currently remember it.

The court found counsel’s testimony to be more credible and, on this basis, stated that the petitioner had “failed to meet his burden of proof . . . for he has neither shown the requisite deficient performance and how he was prejudiced. The court’s confidence in the outcome of the criminal trial has in no way been undermined.” The petitioner argues that the court’s failure to credit his testimony is clearly erroneous and that had the court properly credited his testimony, it would have had sufficient evidence to arrive at the conclusion that his trial counsel’s representation was ineffective in failing to address potential juror misconduct with the trial court.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008). “Appellate courts do not second-guess the trier of fact with respect to credibility.” Vasquez v. Commissioner of Correction, 111 Conn. App. 282, 287 n.4, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). Accordingly, we will not disturb the habeas court’s determination that the petitioner was not a credible witness. Because the only evidence produced in support of the petitioner’s claim was his discredited testimony, the petitioner has not met his burden of proof with respect to either prong of the Strickland test; therefore, his second claim of ineffective assistance of counsel fails as well.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court treated the petitioner’s first and fourth claims as one, due to the fact that they both concerned the two identifications of the petitioner made by the victim. Thus, this claim embodies the petitioner’s first and fourth claims to the court.

       In this appeal, the petitioner makes no claim as to the court’s ruling that he failed to provide sufficient evidence to support his claim that his trial counsel’s representation was deficient in failing to pursue discovery as to the criminal record of the victim for impeachment purposes.

       At oral argument, the petitioner stated that the theory of his defense was self-defense, not misidentification. Because the petitioner adamantly argued in his brief that the theory was misidentification, we will assume that the petitioner misspoke at oral argument.

       “Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Parrott v. Commissioner of Correction, 107 Conn. App. 234, 237, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008).

       “To succeed on [a] motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” (Internal quotation marks omitted.) State v. Rivera, 74 Conn. App. 129, 144, 810 A.2d 824 (2002).


author: SCHALLER, J.

text:
    LAWRENCE PATTERSON v. COMMISSIONER OF CORRECTION
    (AC 28800)
    McLachlan, Harper and Schaller, Js.

      Argued December 3, 2008
    officially released March 3, 2009

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Lawrence Patterson, appeals from the dismissal of his petition for a writ of habeas corpus. The habeas court dismissed the petition on the ground that it lacked subject matter jurisdiction because the petitioner had no cognizable liberty interest at stake. Following its dismissal, the court granted the petition for certification to appeal to this court. On appeal, the petitioner claims that the court improperly dismissed the petition for lack of subject matter jurisdiction. The petitioner had claimed before the court that the board of pardons and paroles had improperly classified him as a “violent offender,” which carried the consequence of his being eligible for parole consideration after service of 85 percent of his sentence, as opposed to 50 percent of his sentence had he been properly classified as a nonviolent offender. The petitioner maintains that because this error has had the effect of lengthening his prison term, he has a liberty interest at stake sufficient for habeas jurisdiction. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our discussion of the petitioner’s appeal. On December 11,2002, the petitioner received a total effective sentence of six years of incarceration, followed by four years of special parole, for his convictions of possession of narcotics, interfering with an officer, burglary in the third degree and larceny in the fourth degree. The board of pardons and paroles subsequently classified the petitioner as a “violent offender” on the basis of the violent offenses in his criminal history. The petitioner, therefore, was ineligible for parole consideration until the service of 85 percent of his definite sentence. See footnote 1.

On July 6, 2006, the petitioner filed an amended petition for a writ of habeas corpus on the ground that his classification as a “violent offender” was erroneous. The petitioner argued that because not one of the four crimes for which he was currently serving time involved the use, attempted use or threatened use of physical force against another person, he should have been classified as a “nonviolent offender” and, therefore, eligible for parole consideration upon service of 50 percent of his definite sentence. On February 15, 2007, the court dismissed the petition, concluding that according to Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007), it lacked subject matter jurisdiction because the petitioner did not have a cognizable liberty interest in parole eligibility.

On April 12, 2007, the petitioner filed a petition for certification to appeal, which was granted by the court on the same day. The petitioner then filed his appeal to this court on May 9, 2007. The petitioner filed his brief on November 16, 2007, and filed a reply to the respondent’s February 22, 2008 brief on March 20,2008. On August 19, 2008, however, the petitioner was released from incarceration, after completing his sentence on that date. On the date of oral argument, December 3, 2008, the petitioner was no longer serving the sentence that serves as the basis of his claim.

As a preliminary matter, we must decide whether the expiration of the petitioner’s sentence renders his claim moot. “Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction .... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justicia-ble. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citation omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).

“The mootness doctrine is rooted in the first factor of the Nardini test. ... It is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. . . . This court recently reiterated that the standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . .

“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Id., 374.

In the present case, the petitioner claims that his case is not moot because this court can grant him practical relief. Yet, as we previously noted, the petitioner fully served the sentence on which his claim is based and was subsequently released from imprisonment. This court cannot provide any practical relief after the petitioner has served his sentence in its entirety. See Shays v. Local Grievance Committee, 197 Conn. 566, 570-71, 499 A.2d 1158 (1985); State v. Pressley, 59 Conn. App. 77, 81, 755 A.2d 929 (2000); State v. Anthony, 24 Conn. App. 195, 200, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991). Unless the petitioner’s claim falls under an exception to the mootness doctrine, we must dismiss his appeal for lack of subject matter jurisdiction. See Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821 (2008).

I

The petitioner first argues that the collateral consequences exception, as outlined in State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), acts as a surrogate for the lack of direct practical relief, and, therefore, his case is not moot. We disagree.

In McElveen, our Supreme Court recognized that even if relief from the actual injury is unavailable due to a change in circumstances, “a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.” Id., 205. The McElveen court further stated: “[F]or a litigant to invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future. The reviewing court therefore determines, based upon the particular situation, whether, the prejudicial collateral consequences are reasonably possible.” Id., 208.

“The array of collateral consequences that will preclude dismissal on mootness grounds is diverse . . . .” (Internal quotation marks omitted.) State v. Preston, supra, 286 Conn. 383. In the present case, the petitioner argues that the improper classification of him as a “violent offender” will adversely affect his future employment prospects, and in the event that his parole is revoked, or he receives a new conviction, will cause him to be classified once again as a “violent offender,” thereby lengthening his prison term. The petitioner maintains that a favorable decision in this appeal will prevent these harmful collateral consequences.

We acknowledge that future employment is a factor on which the application of the collateral consequences doctrine has been predicated. See State v. McElveen, supra, 261 Conn. 215-16. We cannot foresee a situation, however, in which the petitioner’s classification as a “violent offender” would affect his future employment. We realize that the petitioner would be obligated to disclose his criminal record to a potential employer, but he would not be obligated to disclose the fact that the board of pardons and paroles classified him as a “violent offender” for parole eligibility purposes. Moreover, the petitioner has failed to demonstrate how an employer could independently access this information.

With respect to the petitioner’s claim that his improper classification as a “violent offender” will result in the prejudicial collateral consequence that in the event of a revocation of his parole or a new conviction, he will “undoubtedly” be classified again as a “violent offender,” we recognize that “there is something unsettling about looking to future involvement with the criminal justice system as apredicate for our determination that a case such as the present one is not moot.” State v. McElveen, supra, 261 Conn. 215. The United States Supreme Court, however, “has relied upon collateral consequences that would arise in the event of future criminal behavior to conclude that an otherwise moot [claim] merits review.” Id.

We are not persuaded that the petitioner’s current classification as a “violent offender” carries the collateral consequence that he will be automatically classified as a “violent offender” upon future incarceration and, therefore, will serve a lengthier sentence because he will not be eligible for parole consideration until service of 85 percent of his sentence. In 1995, our legislature, through the enactment of Public Acts 1995, No. 255, effective, July 1, 1995, added subsection (c) to General Statutes § 54-125a, which mandated the board of pardons and paroles to establish regulations that included “guidelines and procedures for classifying a person as a violent offender that are not limited to a consideration of the elements of the offense or offenses for which such person was convicted.” General Statutes § 54-125a (c). Those regulations, enacted pursuant to § 54-125a (c), are located in the Regulations of Connecticut State Agencies, §§ 54-125a-l through 54-125a-6. The factors the board of pardons and paroles may consider in classifying an inmate as a “violent offender” are located in §§ 54-125a-4 and 54-125a-5 (b).

Section 54-125a-4 provides in relevant part: “(a) The board shall determine whether the statutory definition of the offense or any offenses for which an inmate is serving a sentence of imprisonment contains one or more elements which involve the use, attempted use or the threatened use of physical force against another person. . . . (b) In all other cases, the board shall determine whether the underlying act or acts constituting the offense or any offense for which the inmate is serving a sentence of imprisonment, or any other relevant information, demonstrate that the inmate is a violent offender. . . . (c) In classifying inmates under subsections (a) and (b) of this section, the board may consider any information which it deems to be relevant.”

Section 54-125a-5 (b) provides in relevant part: “Information may include, but not be limited to, presentence [reports, state] [p]olice criminal records check, sentencing dockets, [c]riminal [j]ustice [i]nformation [s]ystem information, police reports, out of state criminal records, parole and probation reports, victim(s) statement, witness statements [and the inmate’s] prior incarceration history. After reviewing this information, the panel will determine whether the inmate has a past history and/or a series or a pattern of convictions for an offense or offenses [involving violence].”

These regulations make it clear that the board of pardons and paroles considers many factors before classifying an inmate as a “violent offender.” Significantly, the regulations indicate that the most important factor is the nature of the current offense for which the inmate is serving a sentence of imprisonment. At the petitioner’s September 27, 2006 habeas hearing, an employee of the board of pardons and paroles testified that the board mainly looks at the offense at issue and any previous offenses committed within ten years of it. Accordingly, we do not agree that the petitioner’s previous classification as a “violent offender” will “undoubtedly” cause the board to classify him as “violent offender” again. Even if the board does so on the basis of these regulations, we cannot say that the classification will be solely due to the fact that the board had previously classified the petitioner as a “violent offender.”

The petitioner has failed to establish these two alleged collateral injuries by more than mere conjecture and, therefore, has not met his burden of showing that there is a reasonable possibility that prejudicial collateral consequences will occur as a result of the allegedly improper classification of him as a “violent offender” by the board of pardons and paroles. Accordingly, we reject the petitioner’s argument that his case is not moot under the collateral consequences doctrine.

II

The petitioner next argues that his case is not moot under the “capable of repetition yet evading review” exception. We disagree.

“The mootness doctrine does not preclude a court from addressing an issue that is ‘capable of repetition, yet evading review.’ ” Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 367. “[F]or an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995). We discuss these three requirements in turn.

“The first element in the analysis pertains to the length of the challenged action.” Id., 383. “If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.” Id., 383-84. “[A] party typically satisfies this prong if there exists a ‘functionally insurmountable time [constraint] . . . Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 367; or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383.

The petitioner argues that the first prong is satisfied because the effect of an erroneous classification as a “violent offender” is necessarily time limited. The petitioner maintains that “[a]n inmate who properly should be classified as 50 [percent] eligible but [is] improperly required to complete 85 [percent] of his sentence before being eligible for parole consideration will . . . miss the suitability review that the board . . . conducts at 50 [percent].” We are not persuaded.

Because a criminal defendant who has been classified for parole eligibility purposes may face a sentence that varies in length from two years to a great number of years, we cannot conclude that these classifications, by their very nature, are of an inherently limited duration or have an intrinsically limited lifespan. See State v. Boyle, 287 Conn. 478, 488 n.3, 949 A.2d 460 (2008) (because defendant may face probationary period that varies from few months to thirty-five years, probationary periods not of limited duration); Ruffin v. Commissioner of Correction, 89 Conn. App. 724, 728, 874 A.2d 857 (2005) (because issue of presentence time calculation could have been raised by inmates with lengthier prison terms, issue not likely to evade review). In other words, given the wide range of sentences, there is not a strong likelihood that the substantial majority of cases raising a question about the validity of the board of pardons and paroles’ classification of inmates will become moot before the conclusion of the appellate process. Thus, there is no impulsion to decide the merits of this appeal because the issue reasonably can be decided on another day in which there is an actual controversy in which the vindication of one’s rights is, in fact, at issue.” (Internal quotation marks omitted.) Carmona v. Commissioner of Correction, 110 Conn. App. 194, 200, 954 A.2d 265 (2008). The petitioner has failed to satisfy the first prong of Loisel, and, therefore, his claim does not qualify for review under the “capable of repetition, yet evading review” exception, as it is unable to meet each of LoiseVs three requirements.

Because we cannot afford the petitioner any practical relief and the petitioner has failed to establish an exception to the mootness doctrine, we must dismiss the case for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 54-125a (b) (2) provides in relevant part: “A person convicted of an offense . . . where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five percent of the definite sentence imposed.” Subsection (a) of § 54-125a provides in relevant part: “A person . . . who has been confined . . . for not less than [50 percent] of the . . . sentence . . . may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles . . . .”

       The petitioner is currently incarcerated on a new charge of escape in the first degree, in lieu of a $100,000 bond.