author: CRETELLA, J.

text:
    ROBERT MERCER v. COMMISSIONER OF CORRECTION
    (AC 17998)
    Lavery, SchaUer and Cretella, Js.
    Argued October 26, 1998
    officially released February 2, 1999

      Raymond J. Rigat, special public defender, for the appellant (petitioner).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

CRETELLA, J.

The petitioner appeals from the judgment of the habeas court dismissing his habeas corpus petition. On appeal, the petitioner claims that the habeas court (1) improperly dismissed his claim that he was denied effective assistance of counsel at his criminal trial and (2) failed to apply the correct legal standard when reviewing the petitioner’s claim that his attorney had a conflict of interest during the appeal. We affirm the judgment of the habeas court.

The trial court’s memorandum of decision and the record disclose the following facts and procedural history. Following a jury trial, the petitioner was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and on November 15, 1991, he received a total effective sentence of thirty years imprisonment. Following his sentencing, his court-appointed public defender filed an appeal. On January 7, 1992, four months after his conviction, the petitioner filed a pro se petition for a writ of habeas corpus, alleging that he was denied effective assistance of counsel. On January 27, 1992, trial counsel, who was unaware of the petition alleging ineffective assistance of counsel, filed an appellate brief. The appeal was argued on October 26, 1992, and in a decision dated December 15, 1992, this court affirmed the petitioner’s conviction. See State v. Mercer, 29 Conn. App. 679, 680, 617 A.2d 916 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

Although the petitioner’s original writ of habeas corpus was filed on January 7, 1992, prior to his trial counsel’s filing an appellate brief on January 27, 1992, the habeas trial on that initial petition was not held until five years after this court affirmed the conviction. More than four years after the conviction was affirmed on appeal, the petitioner amended his original habeas petition to add an additional claim of ineffective assistance of counsel at the appellate level. The habeas trial was held on the amended petition, and the petition was dismissed, giving rise to the appeal now before us.

I

As to his claim of ineffective assistance of counsel at the trial level, the petitioner argues that his trial counsel’s performance fell below acceptable standards of reasonable and professional competence. Specifically, the petitioner alleges that his trial counsel fatally prejudiced him by not adequately cross-examining witnesses, not adequately investigating the possible use of an alibi defense and not calling witnesses on his behalf.

“The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome. . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992).

“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, [supra, 466 U.S. 687], A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra [85-86]; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988). . . . Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990).

“We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378 (1993), on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995).” (Internal quotation marks omitted.) Beasley v. Commissioner of Correction, 47 Conn. App. 253, 261-62, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998). Here, the habeas court concluded from its review of the evidence that the petitioner was not deprived of effective assistance of counsel because his trial counsel effectively pointed out inconsistencies in the victims’ statements, pointed to the differences in testimony as to the time that the robbery took place, attempted to discredit witnesses’ testimony by noting inconsistencies with statements given to the police, pointed out statements of the two victims regarding their relationship and was diligent in obtaining witnesses for trial.

The habeas court, in addressing the petitioner’s habeas petition, applied the two-prong test enunciated in Strickland which our courts have steadfastly embraced. See, e.g .,Bunkley v. Commissioner of Correction, supra, 222 Conn. 454-55; Commissioner of Correction v. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992). The habeas court found that the petitioner had not satisfied the first prong of Strickland by establishing that his trial counsel’s performance fell below an objective standard of reasonableness. In fact, the habeas court went on to find that the petitioner’s trial counsel provided a thorough and diligent cross-examination of the victims and that his performance exceeded the Strickland standards, which were adopted by our Supreme Court. See e.g., Bunkley v. Commissioner of Correction, supra, 455; Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Dams v. Warden, 32 Conn. App. 296, 302, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993). Accordingly, the habeas court properly dismissed the habeas petition insofar as it related to the alleged ineffective assistance of counsel at the trial level.

II

The petitioner next asserts that trial counsel had a conflict of interest that rendered his assistance ineffective in pursuing the petitioner’s appeal. Specifically, the petitioner claims that the habeas court improperly applied the correct legal standard with respect to his claim. The petitioner concedes that the habeas court correctly found that the legal standard to be applied to allegations of ineffective assistance of counsel based on an alleged conflict of interest differs from that previously set forth relating to the trial level. As noted by the habeas court, effective assistance of counsel requires that a criminal defendant be represented by an attorney free from conflicts of interest. State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987).

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where, however, the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breachfed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance. . . . Phillips v. Warden, 220 Conn. 112, 132-33, 595 A.2d 1356 (1991).

“On appellate review, the historical facts found by the habeas court may not be disturbed unless they were clearly erroneous . . . . Id., 131. When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review. See id.; McIver v. Warden, 28 Conn. App. 195, 203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992) (Citation omitted; internal quotation marks omitted.) Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 583-84, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998).

An actual conflict of interest exists when the aim or goal of trial counsel diverges from the interests of the client. In the present matter, the petitioner alleges that his prior filing of the initial habeas petition after trial and prior to counsel’s filing his appellate brief, created an actual conflict requiring counsel to withdraw from representation. At the habeas trial, however, the petitioner acknowledged that he had no animosity toward counsel, that he filed a petition only to prevent going to jail and that he did not request that counsel withdraw from representation. Furthermore, the record reveals that counsel consulted with the office of the chief public defender on the issue of continuing with representation in view of the petitioner’s action and was advised that the filing of the habeas petition by the petitioner was not an uncommon occurrence.

The first question addressed by the habeas court was whether an actual conflict of interest existed. The habeas court concluded that there was none because when counsel argued before the Appellate Court on behalf of the petitioner, his primary goal was to win the appeal and to overturn the petitioner’s robbery conviction, which was the same goal sought by the petitioner when he took the first step of filing a habeas petition claiming ineffective assistance of counsel. Had trial counsel been successful in overturning the conviction, the petitioner’s goal would have been achieved and the claim of ineffective assistance of counsel would have become moot.

We also point out the caution from the United States Supreme Court that “ ‘the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.’ (Emphasis added.) Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). ‘To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit of another party.’ (Emphasis added.) Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987), cert. denied, 484 U.S. 1012, 108 S. Ct. 713, 98 L. Ed. 2d 663 (1988).”Blakeney v. Commissioner of Correction, supra, 47 Conn. App. 584-85.

The record reveals no evidence produced by the petitioner that in any way would suggest that counsel did not produce effective representation. A conclusory allegation of ineffective assistance, without specific details, does not create a conflict of interest on the part of the accused attorney. Our review of the record convinces us that the habeas court properly found that there was no actual conflict of interest and, therefore, no ineffective assistance of appellate counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court’s memorandum of decision aptly noted that “[i]n fact the petitioner’s counsel was diligent in his efforts to get witnesses to the trial. An important witness for the petitioner was Sharard Robinson, whom trial counsel had subpoenaed to the hearing. Robinson failed to appear when scheduled to do so and counsel sought a capias. Robinson did, in fact, testify on behalf of the petitioner and provided testimony that he was not present on the evening of the crimes as alleged by the victims. Additionally, he testified as to a previous incident between one of the victims and the petitioner that, if believed, could have provided an explanation as to why that victim had made the allegations leading up to the petitioner’s arrest on the charges.” Furthermore, trial counsel testified that he spoke with the potential alibi witness whose name was provided by the petitioner; however, that witness was unable to provide support for the petitioner’s alibi defense.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RODNEY M. PETERSON
    (AC 16689)
    O’Connell, C. J., and Sullivan and Daly, Js.

      Argued November 5, 1998
    officially released February 2, 1999

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia B. Wiederhold, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Rodney M. Peterson, appeals from the judgments rendered following the denial of his motion to withdraw his guilty plea. On appeal, the defendant claims that the trial court improperly (1) rejected his motion to withdraw his guilty plea without holding an evidentiary hearing and (2) advised him of the minimum sentences for the crimes to which he pleaded guilty. We affirm the judgments of the trial court.

The following facts are necessary for a proper resolution of this appeal. The defendant was arrested on two separate occasions and charged each time with sexual assault in the first degree for forcing two different women to submit to sexual intercourse at knifepoint. On October 26, 1994, the defendant failed to appear for the scheduled court date for the first case. The defendant was subsequently apprehended and arraigned on December 13, 1995. On August 16, 1996, the parties entered into a plea agreement for two counts of first degree sexual assault and one count of failure to appear in the first degree. The defendant entered a guilty plea to those counts under the Alford doctrine.

Subsequently, the defendant attempted to withdraw his guilty plea through a letter addressed to the trial court claiming, inter alia, that his attorney (1) had failed to inform him about evidence, (2) had failed to visit him in prison and (3) had not allowed him to consult with his family before entering his plea. In his letter, the defendant also requested new counsel. The defendant made a second attempt to withdraw his guilty plea through a letter to the court clerk, dated September 3, 1996, giving as a reason that he was on medication at the time he entered into the plea agreement. On September 18, 1996, the defendant’s attorney withdrew from the case, with the court’s permission, after the defendant filed a grievance against him; thereafter, a new special public defender was appointed to represent the defendant.

On September 27, 1996, the trial court treated the defendant’s second letter requesting a withdrawal from the plea agreement as a pro se motion to withdraw his guilty plea. The trial court denied the defendant’s motion to withdraw his plea, and the defendant was sentenced in accordance with the plea agreement. Also, that same day, the trial court sentenced the defendant to a total effective sentence of twenty-five years, execution suspended after fourteen years, and five years probation. This appeal followed. Other facts will be discussed where relevant to the issues in the case.

I

The defendant first claims that the trial court improperly denied his motion to withdraw his guilty plea without affording him an evidentiary hearing. We disagree.

We must first address whether this unpreserved claim is reviewable. The defendant’s letter, treated by the court as a pro se motion to withdraw his guilty plea, did not request an evidentiary hearing. Prior to the commencement of the defendant’s sentencing hearing, the trial court addressed the defendant’s motion to withdraw his guilty plea. The defendant was represented at this hearing by counsel. No request for an evidentiary hearing, however, was made by the defendant or his attorney.

On appeal, the issue of whether the trial court acted within its discretion in failing to hold an evidentiary hearing before ruling on the defendant’s motion to withdraw his plea is reviewable despite the defendant’s failure to request an evidentiary hearing. See State v. Watson, 198 Conn. 598, 612, 504 A.2d 497 (1986); State v. Safford, 22 Conn. App. 531, 534, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). In Safford, we rejected the state’s argument that the trial court’s failure to hold an evidentiary hearing was not reviewable because the defendant did not request an evidentiary hearing on his motion to withdraw his plea. State v. Safford, supra, 534. In Safford, the state cited State v. Watson, supra, 598, as support for its argument that the issue is not reviewable. We found the state’s argument in Safford to be meritless because Watson “can be read to suggest no more than that the defendant’s failure to request an evidentiary hearing is a consideration to be weighed by the reviewing court.” State v. Safford, supra, 534. In Safford, we reviewed the defendant’s claim because the defendant “preserved this claim by moving to withdraw the plea, and adequately briefed the issue in this court.” Id. Similarly, in this case, even though the defendant did not request an evidentiary hearing, because the defendant moved to withdraw his guilty plea and adequately briefed this issue on appeal, the defendant’s claim is reviewable by this court.

We next turn to whether the trial court’s failure to provide the defendant with an evidentiary hearing constituted an abuse of the trial court’s discretion. Prior to the acceptance of a guilty plea, a defendant may withdraw it as a matter of right. Practice Book § 39-26. After a plea has been accepted by the trial court, but before the defendant’s sentencing, the trial court is obligated to permit the defendant to withdraw a guilty plea only upon proof of one of the grounds set forth in Practice Book § 39-27.

“Where the record of the plea proceeding and other information in the court file conclusively establish that the motion is without merit, the trial court may dispose of the motion without holding an evidentiary hearing. State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980), citing Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973); see also State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140 [cert. denied, 215 Conn. 818, 576 A.2d 547] (1990).” State v. Safford, supra, 22 Conn. App. 534-35.

In the present case, the defendant, in moving to withdraw his plea, alleged that he “was coerced by [his attorney]” and that he “was on medication” and “wasn’t actually in [his] right mind” when he made his plea agreement. The defendant, through his new counsel, asserted that due to the effects of the medication that he had been prescribed in relation to a hernia operation, he did not voluntarily, knowingly, and intelligently enter into the plea agreement.

In denying the defendant’s motion to withdraw, the trial court relied on the defendant’s responses during his plea canvass. Moreover, in its memorandum of decision, the trial court reasoned that the defendant’s plea agreement was voluntary on the basis of “(1) the defendant’s responses to the court’s questions during the plea canvass that occurred on August 16, 1996, (2) counsels’ statements on the record that there was no reason why the plea should not be accepted and (3) the trial court’s observations of the defendant during the plea canvass.” Moreover, “[i]n considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique.” State v. Torres, supra, 182 Conn. 185. In the present case, the defendant failed to offer any factual support for his allegation that he was under the influence of medicine. Thus, the defendant’s allegations that he was under the influence of drugs and involuntarily entered into the plea agreement were conclusory and not supported by specific facts.

Our Supreme Court has held that a defendant’s “bare assertion that he was using drugs and that he therefore did not understand the questions asked or the nature of the plea was insufficient for the court to have ordered an evidentiary hearing.” State v. Lloyd, 199 Conn. 359, 363, 507 A.2d 992 (1986). In the present case, no evidence was offered to the trial court to support the defendant’s allegations; the trial court was offered only the defendant’s bare assertion that he was using drugs at the time of his plea agreements.

After reviewing the record of the plea canvass and the proceedings on the motion to withdraw the defendant’s guilty plea, we conclude that the trial court acted within its discretion in not holding an evidentiary hearing before ruling on the defendant’s motion to withdraw his plea. The defendant’s allegations that he was under the influence of drugs and involuntarily entered into the plea agreements are conclusory and are not supported by specific facts.

II

The defendant next claims that the trial court inadequately advised the defendant as to the minimum sentences for the charges to which he pleaded guilty. The defendant argues that his plea agreement was not knowingly and voluntarily made and, therefore, he should be allowed to withdraw his guilty plea and proceed to trial. We disagree.

On appeal, the defendant claims that the trial court improperly failed to inform him that the one year mandatory minimum sentence that accompanied the crime of sexual assault in the first degree was not suspendable. Further, the defendant argues that the trial court tailed to inform him that the failure to appear charge to which he pleaded guilty required the imposition of a one year sentence.* The defendant concedes that this claim is not properly preserved for appellate review and seeks review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine.

“The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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. . . . When any one of these conditions is not met, the defendant cannot prevail.” (Citation omitted; internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20-21, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993).

“The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). In this case, the first prong of Golding is satisfied, as the record is adequate to review the alleged claim of error.

The defendant’s claim that his plea agreement was not knowingly and voluntarily made because of the trial court’s failure to advise him properly of mandatory minimum sentences is an appropriate claim for constitutional review pursuant to the Golding doctrine. See State v. Domian, 35 Conn. App. 714, 719, 646 A.2d 940 (1994), aff'd, 235 Conn. 679, 668 A.2d 1333 (1996); see also State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). Because the defendant’s claim is of constitutional magnitude and the record is adequate for review, we will review the claim. The defendant’s claim, however, fails under the third requirement of Golding.

“A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, 243; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Paulsen v. Manson, supra [489]; State v. Gilnite, [202 Conn. 369, 381, 521 A.2d 547 (1987)]. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one’s accusers. Boykin v. Alabama, supra [243]; McCarthy v. United States, supra [466]; State v. Gilnite, supra, 381 n.14. To ensure that a defendant is accorded due process, [therefore] the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, 243 n.5; McCarthy v. United States, supra [466]; Paulsen v. Manson, supra [489]; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, [200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)]; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985). State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).” (Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 686, 668 A.2d 1333 (1996).

“Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant’s ‘full understanding of what the plea connotes and of its consequence’; Boykin v. Alabama, supra, 395 U.S. 243-44; ‘the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights [implicated by the guilty plea].’ State v. Badgett, supra, 200 Conn. 418. To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§711 [now § 39-19] and 712 [now § 39-20], which enumerate the responsibilities of the court in conducting the plea canvass. However, because the ‘determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances’; State v. Wright, supra, 207 Conn. 287; the plea may satisfy constitutional requirements even in the absence of ‘literal compliance with the prophylactic safeguards of Practice Book §§ 711 [now § 39-19] and 712 [now § 39-20].’ State v. Badgett, supra, 418.” State v. Domian, supra, 235 Conn. 686-87.

Thus, to discern whether the defendant’s claims are sufficient to satisfy the third prong of the Golding test, we must determine “whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Internal quotation marks omitted.) Id., 688. The defendant first claims that failure of the trial court to inform him that the one year minimum sentence for sexual assault could not be suspended interfered with the knowing nature of his plea. The defendant further maintains that the failure of the trial court to inform him of the one year mandatory minimum sentence for the failure to appear charge also interfered with the knowing nature of his plea.

At his plea canvass hearing, the trial court ensured that the defendant’s plea was voluntary by personally addressing the defendant to ascertain whether he was under the influence of drugs or medication. Next, the trial court ensured that the defendant had sufficient time to talk with his lawyer and to think about his decision to plead guilty. The trial court then informed the defendant of the elements of the crimes of sexual assault and failure to appear. The trial court enumerated the rights that the defendant was giving up by pleading guilty to the charges and ensured that the guilty plea was of the defendant’s own free will. The trial court also advised the defendant that “on these three charges, you could face as long as forty-five years imprisonment, one year of which would be mandatory . . . .” The trial court accepted the defendant’s plea as knowing and voluntary, and found the plea to be supported by a factual basis.

We conclude that, even though the defendant was not specifically apprised of the mandatory minimum sentence for his failure to appear charge, nothing in the record or trial court proceedings suggests that the defendant was unaware of the actual sentencing possibilities in his case. Moreover, there is nothing in the record to indicate that any possible ambiguity in the record prejudiced the defendant. We conclude, therefore, that more information concerning the nonsuspendable one year minimum sentence for sexual assault and the one year minimum sentence for failure to appear would not have made any difference in the defendant’s decision to enter a guilty plea. Therefore, we conclude that the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

We next consider whether these issues are entitled to review under the plain error doctrine. The defendant argues, in the alternative to review under Golding, that plain error review is warranted. We disagree.

“Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review 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.” (Internal quotation marks omitted.) Id., 692. Plain error review is not warranted here because the defendant has failed to show that his guilty plea was not entered knowingly or voluntarily.

The judgments are affirmed.

In this opinion the other judges concurred.

         North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant pleading under the Alford doctrine neither admits his guilt nor protests his innocence. Instead, a defendant merely acknowledges that the state has evidence sufficient to obtain a conviction and therefore chooses to plead guilty in order to avoid the imposition of a possibly more serious punishment after trial.” State v. Ells, 39 Conn. App. 702, 703 n.2, 667 A.2d 556 (1995), cert. denied, 235 Conn. 940, 669 A.2d 577 (1996).

       Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       On appeal, the defendant confined his grounds for withdrawing his claim to the assertion that his pleas were not voluntarily, knowingly, and intelligently entered into due to the influence of medication. Thus, we will not discuss the allegation that his plea was the product of coercion.

       The trial court stated: “Mr. Peterson, I’ve got to take you at your word with respect to the answers that you gave me back in court on August 16 [the plea canvass hearing]. That’s why I ask you those questions. That’s why we spend the time to go through these plea canvasses carefully. I was satisfied then and both lawyers were satisfied that was a voluntary plea and that you understood the legal rights you were giving up when you entered it. And I just don’t see a basis to withdraw the plea. So the motion to withdraw the defendant’s guilty plea in each of these files is denied.”

       The following colloquy took place during the plea proceedings.
      “The Court: Okay, prior to coming into court today have you had any alcohol or drugs or medicine of any kind which interferes with your ability to understand what’s happening here?
      “The Defendant: No, sir.
      “The Court: Once I accept your plea, you’re not allowed to take it back unless there’s a legal reason why the pleas should be withdrawn. ... I haven’t accepted your plea yet, but once I accept it, simply changing your mind about this is not enough to withdraw your plea. Do you understand that?
      “The Defendant: Yes, I do.
      “The Court: That’s why I ask these questions so I am sure that I’m satisfied that you understand what you’re getting into and also you understand exactly what the plea agreement entails. All right, do you still wish to plead guilty under the Alford doctrine to these charges here?
      “The Defendant: Yes.”

       The following colloquy took place during the plea proceedings.
      “The Court: All right, do either lawyer know any reason why I should not accept the plea?
      “[Defendant’s Counsel]: No, Your Honor.
      “[Assistant State’s Attorney]: No, Your Honor.
      “The Court: The plea is found to be voluntary and understanding^ made with the assistance of competent counsel. There’s a factual basis for the plea. The plea is accepted and a finding of guilty may enter.”

       The record reveals that the trial court was familiar with the defendant because the same trial judge had presided over the plea hearing and the motion to withdraw. The same judge also presided over a bond hearing, two days before the defendant’s entry of his pleas, where the defendant personally addressed the court and persuaded it to lower his bond.

       At the hearing on the defendant’s motion to withdraw his guilty plea, the defendant stated: “On August 16, 1996, when I was, when I plead guilty, Your Honor, I was coerced by Mr. Aspinwall. And I was on medication and I brought the records right here from the facility. I had an operation prior to that date and I was prescribed medication. So I wasn’t actually in my right mind when I took the plea.”
      Although the defendant asserted that he was in possession of “records from the facility,” no records of any kind were offered into evidence to support the defendant’s claim. Moreover, no evidence of any land was offered by the defendant or his counsel as to the date of the alleged operation, the type or amount of medication prescribed to the defendant and the possible effects of the prescribed medication.

       General Statues § 53a-70 (b) provides in relevant part: “Sexual assault in the first degree is a Class B felony for which one year of the sentence imposed may not be suspended or reduced by the court . . .

       General Statutes § 53a-172 (b) provides: “Failure to appear in the first degree is a class D felony.”
      General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (7) for a class D felony, a term not less than one year nor more than five years . . .

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 39-20 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       See footnote 6.

       The (rial court advised the defendant as to the charges as follows: “The charges that you pleaded to, sexual assault in the first degree, under our law, a person is guilty of sexual assault in the first degree when such a person compels another person to engage in sexual intercourse by the use of force against such other person or a third or by the threat of use of force against such other person or against the third person which reasonably causes such person to fear physical injury to such person or a third person. That offense is a class B felony and it carries a maximum sentence of twenty years imprisonment, one year of which is mandatory, and a maximum fine of up to $15,000. Failure to appear in the first degree prohibits someone from willingly failing to come to court when they are charged with (he commission of a felony. A felony is an offense that carries a penalty of greater than one year and so the sexual assault in the first degree charge would qualify under a penally under Connecticut law as wilfully failing to appear in court. When you’re charged with a felony that is a class D felony which carries a maximum sentence of five years imprisonment and or a fine of up to $5000.”


author: LAVERY, J.

text:
    R. I. WATERMAN PROPERTY, INC. v. RICHARD MISIORSKI ET AL.
    (AC 17551)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs October 29, 1998
    officially released February 2, 1999

      Robert G. Skelton filed a brief for the appellants (defendants).

      Michael J. Auger filed brief for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendants appeal from the judgment of strict foreclosure, seeking plain error review of the trial court’s granting the plaintiff, R. I. Waterman Property, Inc., permission to file a motion for summary judgment after the case had been scheduled for trial and simultaneously granting the summary judgment without giving the defendant an opportunity to file affidavits and documents in opposition to the summary judgment motion. We reverse the judgment of the trial court.

The following facts are undisputed. This foreclosure proceeding was initiated in 1996. The defendants filed an answer and special defenses, and the case was claimed to the trial list in February, 1997. In May, 1997, the trial court scheduled the trial for October 9, 1997. On June 13, 1997, the plaintiff simultaneously filed a motion for permission to file a summary judgment motion and a motion for summary judgment. On June 30, 1997, the trial court simultaneously granted both motions. A judgment of strict foreclosure was rendered in August, 1997, from which this appeal was taken.

On appeal, the defendants claim that they did not oppose the granting of the plaintiffs motion for permission to file a summary judgment motion, but would have opposed the motion for summary judgment, and that their time for filing affidavits and documents in opposition did not start running until permission to file was granted. The defendants claim that the trial court’s simultaneous granting of the plaintiff’s summary judgment motion and the motion for permission to file a motion for summary judgment was plain error. We agree.

Practice Book § 17-44 provides in pertinent part that “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . .” Practice Book § 17-45 provides: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

We agree with the defendants that until the motion for permission to file a summary judgment motion is granted, § 17-45 does not come into effect. Once notice is given of the granting of permission to file a summary judgment motion, the motion for summary judgment should be placed on the short calendar not fewer than fifteen days from the giving of the notice. This gives the adverse party the opportunity to file opposing affidavits and other available documentary evidence as set forth in § 17-45.

Where the error is truly extraordinary and is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings, plain error review is warranted. See Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 194, 646 A.2d 195 (1994). This is such a case. Here, the trial court failed to abide by our rules of practice by granting the plaintiffs motion for summary judgment at the same time it granted the plaintiffs motion for permission to file a motion for summary judgment. The trial court’s rulings did not afford the defendants an opportunity to oppose the motion for summary judgment as provided by § 17-45. The trial court’s rulings, therefore, constitute plain error.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants are Richard Misiorski and Brenda Misiorsld. Fleet Bank, N.A., was named as a subsequent encumbrancer in the trial court and is not a party to this appeal.


author: SPALLONE, J.

text:
    LAWRENCE S. BRICK v. JAMES CYR ET AL.
    (AC 17710)
    Spear, Sullivan and Spallone, Js.
    Argued December 14, 1998
    officially released February 2, 1999

      Mark Shapera, with whom, on the brief, was Steven H. St. Clair, pro se, for the appellant (defendant).

      Holly Abery-Wetstone, with whom were Lawrence S. Brick, pro se, and, on the brief, Linda C. Lehmann, for the appellee (plaintiff).
   Opinion

SPALLONE, J.

The defendant Steven H. St. Clair appeals from a summary judgment rendered in favor of the plaintiff. St. Clair claims that (1) the trial court lacked jurisdiction to enforce a workers’ compensation commissioner’s (commissioner) finding and award of counsel fees and interest assessed against St. Clair, (2) the trial court improperly denied St. Clair’s motion to dismiss the plaintiffs application to confirm the commissioner’s award of attorney’s fees and interest and (3) the commissioner lacked jurisdiction to intervene and conduct informal and formal hearings four months after the commissioner’s approval of a full and final settlement that included the reasonableness of the plaintiffs attorney’s fees. The subject matter of this appeal was previously before this court. See Cyr v. Domino’s Pizza, 45 Conn. App. 199, 201-202, 695 A.2d 29 (1997).

The relevant facts are as follows. The plaintiff attorney, Lawrence S. Brick, represented James Cyr in a workers’ compensation claim that arose out of an injury that Cyr sustained on February 26, 1990, in the course of his employment. Through Brick’s efforts, Cyr received an award of $23,000 and the commissioner approved a legal fee for Brick in the amount of 20 percent of the award, to which Cyr agreed. On January 7, 1994, the insurer sent a settlement check to Brick. Brick turned the entire check over to Cyr. Although Cyr had agreed to pay the legal fees once the settlement check cleared, he did not do so. Instead, Cyr hired a new attorney, St. Clair, and placed the legal fees in an escrow account on St. Clair’s advice. St. Clair contacted Brick and asked him to explain the basis for his fee. Brick did so and informed St. Clair that the fee had been approved by the commissioner. Despite receiving detailed and comprehensive explanations, Cyr did not pay Brick, and Brick requested an informal hearing to resolve the issue. The day before the hearing, St. Clair informed the commissioner and Brick that he would not attend due to scheduling conflicts. St. Clair did not respond to the commissioner’s telephone calls on the day of the hearing or to a letter written by the commissioner. A properly noticed hearing was held two weeks later, and, despite the notice to Cyr and St. Clair, no one appeared on Cyr’s behalf.

In a decision dated August 15,1994, the commissioner concluded that the failure to pay the legal fees without an explanation amounted to an inexcusable and unreasonable delay. He ordered Cyr to pay $4600 to Brick within ten days of the order, together with interest at the rate of 12 percent from the date that the original settlement check was received by Brick. He further found that St. Clair’s conduct was unconscionable and unbecoming an officer of the court and member of the Connecticut bar. On the basis of that finding, the commissioner ordered St. Clair to pay Brick $2500 in attorney’s fees together with interest at the rate of 12 percent from the date of the order if payment was not made within ten days of the order. The commissioner

further recommended that Brick file a complaint against St. Clair with the statewide grievance committee.

On October 6,1994, St. Clair appealed to the workers’ compensation review board (board) from the commissioner’s August 15, 1994 decision claiming that (1) the commissioner had no statutoiy authority to enter the orders as to him, (2) he was not provided adequate notice of the subject matter of the hearing as it related to his behavior, (3) he had no appearance in the case on behalf of Cyr and (4) there was insufficient evidence to sustain the commissioner’s findings regarding communications between Brick and St. Clair as to the fees. Brick filed an objection to the appeal on the ground that it was untimely. The board determined that the appeal was untimely and found that its ruling on the timeliness issue divested the board of jurisdiction over the remaining claims of error. The board dismissed the appeal. This court upheld the decision of the board. Id., 199.

Subsequently, the plaintiff sought entry of judgment of the commissioner’s finding and award in the trial court in order to enforce the finding and award in Massachusetts, the resident state of St. Clair. St. Clair filed a motion to dismiss the plaintiffs request for judgment claiming that the trial court lacked subject matter jurisdiction. The plaintiff filed a motion for summary judgment. After refusing to dismiss the plaintiffs action, the trial court rendered judgment in favor of the plaintiff. This appeal followed.

We hold that the commissioner had no jurisdiction to impose any sanctions against St. Clair. The trial court should have decided the issue of jurisdiction in favor of St. Clair. The commissioner’s authority to act is defined by statute. The power of the commissioner to hold hearings is confined to three situations. First, in the case of voluntary agreements reached by the parties and approved by the commissioner, the employee may request a hearing upon notification that the employer intends to reduce or discontinue payments. General Statutes § 31-296. After such a hearing, § 31-296 permits the commissioner to require the employer to pay to the employee the amount reduced or discontinued plus interest on said amount and a reasonable attorney’s fee if he finds such reductions or discontinuances were made without his approval. Second, where no voluntary agreement is reached, General Statutes § 31-297 authorizes the commissioner to hear claims regarding the employer’s liability and to make awards. Finally, General Statutes § 31-297a allows the commissioner to hold informal hearings with regard to compensation under the provisions of chapter 568.

No statute authorizes the commissioner to award attorney’s fees to an employee’s prior attorney payable by a subsequent attorney for the same employee. In this case, the status of the subsequent attorney is not clear. Although he advised the employee as to the counsel fees, he never filed an appearance before the commissioner.

We hold that the statutory scheme outlining the powers of the commissioner anticipates a role as to determining liability and making awards as between employer and employee. The commissioner’s jurisdiction is “confined by the [Workers’ Compensation Act] and limited by its provisions.” (Internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 426, 541 A.2d 1216 (1988).

In this matter, the commissioner approved the attorney’s fees payable by the employee to his attorney in the amount of 20 percent of the award payable by the employer. Whether the commissioner may order the employee to pay his attorney is not before us. Rather, the question to be resolved is whether a workers’ compensation commissioner may sanction a subsequent

attorney for the employee for consultations concerning the payment of attorney’s fees previously approved by the commissioner. We hold that the commissioner cannot.

Nothing in chapter 568 authorizes a commissioner to assess attorney’s fees, by way of sanctions, in favor of the attorney whose fees were approved by the commissioner, against a subsequent attorney who was consulted by the employee.The commissioner was without jurisdiction to award such fees. Thus, the trial court should have granted St. Clair’s motion to dismiss the plaintiffs action to enforce the commissioner’s award. Our holding here is dispositive of the appeal.

The judgment against Steven H. St. Clair is reversed and the case is remanded with direction to dismiss the application to confirm as against the defendant Steven H. St. Clair.

In this opinion the other judges concurred.


author: SPEAR, J.

text:
    IN RE JESSICA S.

    (AC 17980)
    Lavery, Landau and Spear, Js.

      Argued November 10, 1998
    officially released February 2, 1999

      Scott Allan Sandler, for the appellant (respondent).

      Eliot D. Prescott, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Carolyn K. Querijero, assistant attorneys general, for the appellee (petitioner).

      Philip N. Walker, for the minor child.

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

   Opinion

SPEAR, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her child, Jessica. She claims that the trial court (1) lacked subject matter jurisdiction because of alleged procedural irregularities in the earlier neglect proceeding, (2) terminated her parental rights under circumstances in which her mental illness, in conjunction with the special needs of her child, made it impossible for her to rehabilitate herself sufficiently to assume a responsible position in the life of her child, (3) made clearly erroneous findings of critical facts, especially with respect to whether the requirements of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., had been met and (4) improperly refused to sequester the petitioner’s witnesses. We decline to review the claim with respect to the ADA because it was not raised in the trial court or made here as either a constitutional claim or plain error. We find the other claims to be without merit and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of these claims. Jessica was bom to the respondent on September 10,1989. Jessica’s father died on April 27, 1993. The respondent suffered from a mental illness and, after she and Jessica were found wandering on an interstate highway in Rhode Island in June of 1993, Jessica’s paternal grandfather filed a petition for termination of the respondent’s parental rights in the Probate Court.

On June 8, 1993, the Probate Court awarded temporary custody of Jessica to her grandfather. On August 12, 1993, the termination petition was transferred to the Superior Court on the motion of Jessica’s attorney. The petitioner, the commissioner of children and families, filed a neglect petition on August 19, 1993, and on August 24, 1994, the trial court, Barnett, J., found that Jessica was neglected and committed her to the custody of the department of children and families (department). Jessica’s grandfather and his wife had qualified under state guidelines to become foster parents during the time that the neglect proceedings were pending and thus Jessica was able to remain with them throughout the proceedings.

The petitioner filed a termination petition on September 22, 1995, and alleged that despite the reasonable efforts and assistance of the department, the respondent had failed to achieve sufficient rehabilitation so that she could assume a responsible position in Jessica’s life. The petition to terminate the respondent’s parental rights was granted on December 17, 1997, and this appeal followed.

I

The respondent claims that the trial court lacked subject matter jurisdiction to terminate her parental rights. First, she argues that the court had no authority to adjudicate a neglect petition filed against her because Jessica was in the custody of her grandfather, not the respondent, when the neglect and termination petitions were filed. The respondent then asserts that as a consequence of the improper judgment of neglect, the trial court had no subject matter jurisdiction over the petition to terminate the respondent’s parental rights.

Before addressing this claim, we note that “[jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 740, 699 A.2d 158 (1997).

The respondent’s claims amount to a collateral attack on the judgment of neglect and commitment to the department from which she took no appeal. She asserts that the petitioner has no right to file a neglect petition naming the parent as a respondent where the Probate Court has awarded temporary custody to a grandparent. She cites no authority in support of that proposition.1 ** As the petitioner notes in her brief, if physical custody by the respondent parent were a jurisdictional prerequisite to bringing a neglect petition, the department would be powerless in cases where a parent abandons a child. Such a result would be absurd. Our statutory scheme specifically provides for orders of temporary custody prior to the hearing of neglect petitions. See General Statutes § 46b-129 (b). The respondent gives no reason why the Superior Court lacked jurisdiction simply because the Probate Court ordered temporary custody rather than the Superior Court.

The Superior Court is authorized to adjudicate such petitions pursuant to General Statutes § 46b-129 (a). Section 46b-129 (a) provides in relevant part: “[T]he commissioner of children and families . . . having information that a child or youth is neglected, uncared-for or dependent, may file with the superior court which has venue over such a matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent . . . .” Nothing in § 46b-129 requires that the respondent parent in a neglect proceeding have custody for the court to adjudicate a neglect petition. Clearly, the court had subject matter jurisdiction.

II

The respondent next claims that § 17a-112 cannot be applied to terminate the parental rights of a person with a mental illness that, through no fault of her own, prevents her from achieving rehabilitation as required by the statute. The respondent cites no authority for this proposition and we have found none. This court has held that where a “trial court’s decision to terminate the respondent’s parental rights was made pursuant to the statutory requirements of General Statutes § 17-43a (b) [now § 17a-112], which makes no distinction between mentally ill and other persons,” there is no violation of article twenty-one of the amendments to the Connecticut constitution, which forbids discrimination based on a person’s mental condition. In re Nicolina T., 9 Conn. App. 598, 606, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987). Our Supreme Court has stated that “[i]n weighing the interests of the child against the hardship imposed on the parent, the legislature may properly strike the balance at the point where the mental . . . deficiency, even though involving no fault, is so great as to render the parent incapable of measuring up to the child’s needs as those are delineated in § 17-43a (a) (3) [now § 17a-112 (c)].” In re Juvenile Appeal (83-BC), 189 Conn. 66, 78-79, 454 A.2d 1262 (1983). The termination statute in effect at that time, General Statutes (Rev. to 1983) § 17-43a, contained a provision that allowed the court to grant a petition for termination of parental rights upon a finding “that over an extended period of time . . . the parents, by reason of continuing physical or mental deficiency . . . will be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . .” (Emphasis added.) That provision with respect to mental deficiency was deleted by Public Acts 1983, No. 83-478, § 1. We noted in In re Nicolina T. that the trial court properly terminated the respondent’s parental rights, not because of her mental condition, but because of her inability to function as a parent. We also said in In re Nicolina T. that “[t]ermination has been consistently recognized as being in the best interest of the child when the parent has a mental deficiency or illness which renders her unable to provide the child with necessary care.” In re Nicolina T., supra, 605.

Although we understand and appreciate the hardship suffered by the respondent mother, we conclude that the trial court properly found that the respondent had failed to rehabilitate herself pursuant to § 17a-112.

III

The respondent next claims that the trial court made clearly erroneous factual findings pursuant to the seven statutory factors enumerated in General Statutes (Rev. to 1995) § 17a-112 (d) and improperly failed to take into account the requirements of the ADA in considering those termination factors.

The respondent’s claim with respect to § 17-112 (d) (1), (2) and (6) are all based on the ADA and were not raised in the trial court. The respondent never requested that the trial court make factual findings as to whether the services rendered and efforts made satisfied the ADA requirements. She briefs no constitutional or plain error claim and we, therefore, decline to review this unpreserved claim. See State v. Jones, 50 Conn. App. 338, 347, 718 A.2d 470 (1998).

“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. . . . United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997).

With respect to § 17a-112 (d) (3), (4) and (7), the respondent’s basic claim is that the trial court should have weighed both the evidence and credibility differently. With respect to similar claims regarding weight and credibility we have said: “The respondent disputes much of the testimony presented at the hearing, and alleges that such testimony contained many uncertainties and discrepancies. . . . These claims relate to the weight to be given to the testimony, and are not appropriately directed to an appellate court. ... It is the trial court which has the benefit of having all the parties before it, and is thus in the best position to analyze the testimony and evidence and reach an ultimate conclusion regarding whether the statutory criteria for termination have been met.” (Citations omitted; internal quotation marks omitted.) In re Nicolina T., supra, 9 Conn. App. 604-605.

We have reviewed the record and the evidence in the case and we conclude that the trial court’s findings of fact were not clearly erroneous.

IV

The respondent’s last claim is that the trial court improperly refused her request to sequester the witnesses who testified for the petitioner. She acknowledges that sequestration under the circumstances here was discretionary but does not allege that the trial court abused its discretion. Her only complaint is that “[i]t is completely unnecessary that [the petitioner] have three (3) representatives present, especially when all have testified.” We conclude that the trial court acted properly, particularly as the respondent fails to allege an abuse of discretion and can point to nothing that happened during the hearing that would indicate that any witness benefited from the testimony of any other witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 17a-112 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families luis made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Review of unpreserved constitutional claims is available in civil cases under certain circumstances. See Hurtado v. Hurtado, 14 Conn. App. 296, 299-300, 541 A.2d 873 (1988).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court . . .

       If this claim did not raise a question of subject matter jurisdiction, we would not review it because it is inadequately briefed. See Brown v. Villano, 49 Conn. App. 365, 372, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d 513 (1998). A question of subject matter jurisdiction must be addressed and disposed of before moving on, if at all, to other issues. See Papa v. Thimble Creek Condominium Assn., Inc., 50 Conn. App. 139, 141-42, 716 A.2d 947 (1998).

       General Statutes § 46b-129 (b) provides in relevant part: “If it appears from the [allegations of a neglect petition] and other verified affirmations of fact accompanying the petition . . . that there is reasonable cause to find that the child’s . . . condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare, the court shall ... (2) vest in some suitable agency or person the child’s . . . temporary care and custody pending a hearing upon the petition . . . .”

       Article twenty-one of the amendments to the Connecticut constitution provides in relevant part: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of . . . mental disability.”

       See footnote 1.

       The respondent has no quarrel with § 17a-112 (d) (5) which determined the child’s age.

       With respect to § 17a-112 (d) (3), the respondent asserts that the trial court concluded that there had been therapeutic visits with the mother but that the record is devoid of any evidence to support this conclusion. Even so, we conclude that the trial court appropriately considered this factor and its conclusion is not clearly erroneous.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. SAMUEL MCMILLAN
    (AC 16731)
    Spear, Hennessy and Daly, Js.
    Argued October 28, 1998
    officially released February 9, 1999

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrice Palombo, assistant state’s attorney, for the appellant (state).

      Richard E. Condon, Jr., assistant public defender, for the appellee (defendant).
   Opinion

DALY, J.

The state appeals following the trial court’s denial of the state’s motion for permission to appeal pursuant to General Statutes § 54-96. The state claims that the trial court improperly (1) denied the state permission to appeal under § 54-96 and (2) dismissed the information against the defendant on the basis of the failure of the police incident report to establish probable cause for the arrest.

The pertinent background is as follows. On April 3, 1996, New Haven police officers made a warrantless entry of the defendant’s premises at 178 Hazel Street pursuant to a complaint that a woman was being assaulted. The police officers found narcotics on the premises and on the defendant’s person. On April 4, 1996, the defendant was arraigned and charged with six narcotics related offenses.

The trial court, after reading the police incident report, found no probable cause for the defendant’s arrest and dismissed the matter, suo moto. Although the state requested “one week” and argued that a finding of no probable cause could justify only releasing the defendant without bond, not dismissal of the case, the trial court refused to change its ruling or to grant the time requested.

On April 10, 1996, the state filed a motion for permission to appeal, which was denied on April 12, 1996. On April 22, 1996, the state filed a motion for review of the denial. On July 10, 1996, this court ordered the trial court to file an articulation of its decision, and the trial court complied in a memorandum of decision dated October 2, 1996. In its decision, the trial court stated that the record was insufficient to support an appeal, that the court lacked jurisdiction over the defendant and that the state failed to follow the proper procedures. On December 10, 1996, this court dismissed the state’s motion for review as improper and granted the state permission to file a late appeal within twenty days and, if such an appeal was filed, to raise as the first issue whether the trial court improperly denied the state permission to appeal under § 54-96. See State v. McMillan, 43 Conn. App. 698, 703, 685 A.2d 1138 (1996).

On December 23, 1996, the state filed this appeal. On March 2, 1997, the state filed a motion for rectification seeking to include the police incident report as part of the record. On March 11, 1997, the state moved for permission to file a late motion for rectification of the record. The trial court granted the motion for permission and following a hearing, denied the motion for rectification on July 31, 1997. The state moved for review of the denial and this court granted the motion and granted the requested relief on March 18, 1998.

“The right to an appeal is not a constitutional one. Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). There is ... no common law right of appeal by the state in criminal matters. . . . The right of the state to appeal in criminal cases is granted only by statute. State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); see State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976); State v. Carabetta, 106 Conn. 114, 115, 137 A. 394 (1927). As we noted in State v. Carabetta, [supra, 119]: Statutes authorizing an appeal in a criminal case must be strictly followed. 17 Corpus Juris, 14; State v. Captan, 85 Conn. 618, 84 Atl. 280 [1912]. The conditions of the statute must therefore be met to have a valid appeal. State v. Audet, [supra, 340]. The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. [Id., 342]; Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589 [1948] aff'd, 337 U.S. 901, 69 S. Ct. 1046, 93 L. Ed. 1715 [1949]. State v. Curdo, 191 Conn. 27, 30, 463 A.2d 566 (1983).” (Internal quotation marks omitted.) State v. S & R Sanitation Services, Inc., 202 Conn. 300, 307, 521 A.2d 1017 (1987).

As in this case, “the right of appeal exists only by virtue of General Statutes § 54-96. That statute provides in part that appeals may be taken by the state, with the permission of the presiding judge. . . . The words of a statute are to be given their commonly approved meaning, unless a contrary intent is expressed. General Statutes § 1-1; State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). The term permission as used in § 54-96 needs no judicial gloss to demonstrate that it means the obtaining of consent and authority of the court; no automatic right to appeal is conferred upon the state. The statutory language unmistakably confers upon the trial court the choice of granting or withholding the appeal privilege depending upon the circumstances of each case. It is apparent from the permissive language of the statute that the legislature did not intend that permission to appeal be granted in every case in which it is sought.

“We have recently said: The provision that permission from the . . . judge be obtained was a limitation on the right of appeal granted the state. . . . This condition is generally considered to be a prerequisite to appeal by the state. . . . However, as the dominant intention of the legislature was to extend the right of appeal to the state, the limitation placed upon that right is one which must be so exercised as to avoid abuse and unreasonable consequences. State v. Avcollie, [174 Conn. 100, 109-10, 384 A.2d 315 (1977)]. The permission of the trial judge is a condition which is a prerequisite to the existence of the state’s right of appeal in a criminal matter under § 54-96. [Id., 109.] It follows, therefore, that without that permission there is no viable appeal unless the court’s denial of permission is so unreasonable as to constitute an abuse of discretion. Id., 110.” (Internal quotation marks omitted.) State v. S & R Sanitation Services, Inc., supra, 202 Conn. 307-308.

I

The state first claims that the trial court improperly denied it permission to appeal on the grounds, stated in that court’s articulation, that (1) the state did not offer the testimony of the arresting police officer or the arrest report, nor did it request that the arrest report be marked for identification, (2) the prosecutor failed to sign the information pursuant to Practice Book § 36-12 and (3) the state failed to indicate its intention to appeal on the date of dismissal of the charges. We agree that none of those reasons justified the trial court’s denial.

A

As to the first issue, the trial court maintained that the record consisted only of the unsigned information and that the state did not offer the testimony of the arresting police officer or the arrest report or ask that the report be marked for identification. The trial court concluded that the state did not prepare an adequate record to pursue an appeal. We disagree.

With regard to the absence of testimony, we note that the state need not present such evidence at an arraignment. Practice Book § 37-12 provides in relevant part that a determination of probable cause “shall be made in a nonadversary proceeding, which may be ex parte based on affidavits. . . .” While testimony may be presented at such a hearing, it is not required. Moreover, even though the state did not offer the police incident report or request that the report be marked for identification, our rules of practice establish a procedure for rectifying the trial court record to include necessary material for the proper presentation of the issues raised on appeal. See Practice Book § § 66-5 (motion for rectification) and 66-7 (motion for review of motion for rectification). As we have already noted, the state utilized this procedure to rectify the record to include that report, which neither side disputes was relied on by the trial court in its dismissal of the charges. In light of these circumstances, we conclude that the trial court was not justified in denying the state permission to appeal on the basis of the inadequacy of the record.

B

The trial court also maintained that there was a lack of jurisdiction over the defendant due to the failure of the prosecutor to sign the information pursuant to § 36-12. The trial court presumed that the prosecutor did not find probable cause to continue the action against the defendant because there are no charges pending against a defendant until the prosecutor signs the information pursuant to § 36-12. General Statutes § 54-46, however, does not require that an information be signed and our case law does not make the signature a jurisdictional requisite.

In Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998), we held that “[t]he more well reasoned and persuasive cases are those that hold that the lack of a required signature on an information or indictment is a waivable, nonjurisdictional defect. Moreover, when we consider the underlying purpose of signatures, the implausibility of the petitioner’s claim becomes even more apparent. The significance of a signature appearing on documents . . . lies in the fact that a signature is the name of a person written with his own hand to signify that the writing which precedes accords with his wishes or intentions. . . . The signature to a writing is placed there, moreover, for the purpose of authenticating it. . . . Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 491, 356 A.2d 117 (1975). Authentication of a document is the primary purpose of a signature requirement. . . . There is no claim here that the prosecuting official lacked authority. By the very act of pursuing the charges to conviction, the prosecutor authenticated the information even more effectively than his signature could have done.

“Absent a statutory or case law requirement that the information be signed by a prosecutor and where the actual authority of the prosecutor is unquestioned, common sense dictates that we treat such a lack of signature as a nonjurisdictional defect. That conclusion is further compelled by the rationale of the cases from our sister jurisdictions that so hold.” (Citations omitted; internal quotation marks omitted.) Blakeney v. Commissioner of Correction, supra, 47 Conn. App. 580-81.

In this case, the prosecutor whose name was stamped on the information was the same prosecutor who pursued the charges listed on that information at the arraignment. We conclude, therefore, that the prosecuting authority’s failure to sign the information did not deprive the trial court of jurisdiction.

C

The trial court’s final reason for denying the state permission to appeal is the state’s failure to indicate its intention to appeal on the date of the dismissal of the charges; instead, the state waited six days before making such a request. The trial court relied on State v. Carabetta, 106 Conn. 114, 137 A.2d 394 (1927), State v. Tucker, 23 Conn App. 559, 583 A.2d 139 (1990), and State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983), for the proposition that a request for permission to appear must be made at the time of judgment so that the accused shall not be forthwith discharged.

Neither § 54-96, nor any other statute or rule of practice, establishes any particular deadline within which the state must move for permission to appeal. We note that none of the cases relied on by the trial court involved a dismissal at arraignment.

In our review of the transcript of the arraignment, however, we find that the state had not only asked for “one week,” but also referred the trial court to State v. Middleton, 20 Conn. App. 321, 566 A.2d 1363 (1989), where the trial court gave the state one week to indicate its intention to appeal. In addition, the state’s request during the arraignment to “make a record, please” indicates that the state intended to appeal or at least to preserve a record in order to appeal; otherwise, there would be no reason to request permission to make such a record when the trial court had just dismissed the case.

“To acquire the right to appeal, the state must move for permission to appeal at the time of the judgment; State v. Avcollie, [supra, 174 Conn. 108]; or with ‘reasonable promptness’ thereafter, provided that it expresses its intent to appeal at the time of the judgment. State v. Ross, [supra, 189 Conn. 46-47]; State v. Middleton, [supra, 20 Conn. App. 326]. These cases limit the time period during which the state may move for permission to appeal.” State v. Tucker, supra, 23 Conn. App. 563. “The rationale given was that ‘[t]he evil perceived in granting a tardy request of the state to appeal was the injustice of dragging back into court a defendant who had reasonably assumed that his discharge meant that he was a free man no longer charged with a crime.’ ” State v. Middleton, supra, 326-27.

It is true, as the defendant argues, that at the time of the judgment of dismissal the state did not explicitly express an intention to appeal. We conclude, nonetheless, that the state demonstrated its intention to appeal sufficiently to comply with § 54-96. The state immediately asked for “one week” in response to the court’s ruling. Furthermore, it requested permission to make a record and cited Middleton. In addition, the state impliedly expressed its intent to appeal when it stated to the trial court that “[i]t’s inappropriate to dismiss at this juncture.” Finally, only six days later, the state filed a motion for permission to appeal.

Under these circumstances, the defendant was on adequate notice that the state sought “one week” to appeal, and planned to file a motion for permission to appeal within that time period. Thus, the defendant had no reasonable basis to assume at the time of dismissal that his discharge meant that he was a free person no longer charged with crimes. See id., 327, citing State v. Ross, supra, 189 Conn. 46. He could reasonably assume only that he was being released from custody without bond. We conclude, therefore, that the trial court abused its discretion in denying the state’s motion for permission to appeal.

II

The state maintains that the trial court improperly dismissed the information on the basis of the failure of the police incident report to establish probable cause for the arrest. We conclude that the trial court improperly considered whether the evidence was legally obtained and we remand the case for a proper determination of probable cause.

“Dismissal of an information is a drastic action that is appropriate in cases where ‘there was a need either to eliminate prejudice to a defendant in a criminal prosecution, where it was impossible to do so by imposition of lesser sanctions, or to deter a pattern of demonstrated and longstanding widespread or continuous official misconduct.’ United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert. denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L. Ed. 2d 310 (1979); United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978), cert. denied, 442 U.S. 917, 99 S. Ct. 2838, 61 L. Ed. 2d 284 (1979).” State v. Bergin, 214 Conn. 657, 672, 574 A.2d 164 (1990).

The trial court indicated that “the officer’s statement of an assault [which] caused the officer to go to 178 Hazel Street [was] without foundation and not worthy of belief. The officers did not have a warrant; they did not see a crime being committed when they were on the street and this purported excuse for going to and entering this house was found to be a made-up excuse for breaking down the front door and entering the house. Nowhere in the report is there any investigation of an attack on a woman at 178 Hazel Street.”

The trial court did not, either in its ruling or in its subsequent articulation, state that it was suppressing the evidence obtained by the police from the warrantless entiy of the defendant’s premises because the evidence had been unconstitutionally seized. It is apparent, however, that the trial court, in effect, suppressed that evidence and that the dismissal flowed directly from that suppression.

“First, Practice Book § 650 [now § 37-12] contemplates that the probable cause determination ‘shall be made in a nonadversary proceeding, which may be ex parte, at which affidavits or testimony under oath may be received.’ Such a proceeding, which ordinarily takes place upon arraignment ... is hardly consistent with the process of constitutional adjudication required in deciding a motion to suppress evidence. Practice Book §§ 809, 811, 812, 813, 821 and 822 [now §§ 41-3, 41-5, 41-6, 41-7, 41-12 and 41-13] provide detailed procedures for implementing that process.

“Second, the purpose of Practice Book § 650 is to conform Connecticut’s procedure with the mandate of Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), by providing an incarcerated defendant with a prompt postarrest judicial determination of probable cause. See 4 L. Orland, Connecticut Practice, Superior Court Criminal Rules § 650. Such a proceeding is not a critical stage requiring appointed counsel. Gerstein v. Pugh, supra, 122. A judicial determination of the legality of a search or seizure is not within the scope of what that preliminary stage of the proceeding is intended to accomplish.

“Third, the purpose of the exclusionary rule is to deter illegal police conduct; see State v. Brown, 14 Conn. App. 605, 622, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); and the limits on its application that flow from that purpose, namely, that it does not apply where the cost of suppressing reliable tangible evidence outweighs its deterrent benefit; see United States v. Leon, 468 U.S. 897, 906-907, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S. Ct. 52,82 L. Ed. 2d 942 (1984); suggest its inapplicability to a hearing under Practice Book § 650. Since the interest in deterring illegal police conduct is sufficiently protected by excluding illegally seized evidence at trial, no such suppression is required at the detention hearing under § 650.

“Finally, our Supreme Court has very recently noted ‘the general rule . . . that constitutional questions are not properly raised in a probable cause hearing because such hearings are not adjudicatory in nature. See, e.g., Fed. R. Crim. Proc. 5.1, Notes of Advisory Committee on Rules; 2 W. LaFave & J. Israel [Criminal Procedure (1984) p. 263] § 14.4.’ In re Ralph M., 211 Conn. 289, 313, 559 A.2d 179 (1989). In that case, the court held that the trial court should not entertain motions to suppress at nonadjudicatory juvenile transfer hearings pursuant to General Statutes § 46b-127 (i). The same reasoning applies to a nonadjudicatory § 650 preliminary hearing.” State v. Middleton, supra, 20 Conn. App. 328-30. “On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984).

The judgment of dismissal is reversed and the case is remanded for a proper determination of probable cause and for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       The six counts charged violations of the following statutes: (1) possession of narcotics in violation of General Statutes § 21a-279 (a); (2) conspiracy to possess narcotics in violation of General Statutes §§ 53a-48 and 21a-279 (a); (3) sale of narcotics in violation of General Statutes § 21a-277 (a); (4) possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d); (5) sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (Jb); and (6) conspiracy to possess narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-48 and 21a-279 (d).

       The following colloquy took place during the arraignment.
      “The Court: Mr. McMillan, did you understand your rights as I explained them to you?
      “The Defendant: Yes.
      “The Court: I find no probable cause.
      “[Assistant State’s Attorney]: Can we have one week?
      “[Defense Counsel]: He qualifies, Your Honor.
      “The Court: Public defender is appointed.
      “[Defense Counsel]: May it be dismissed?
      “The Court: Granted.
      “[Defense Counsel]: May I ask the basis for that?
      “The Court: U.S. Supreme Court.
      “[Assistant State’s Attorney]: Which allows?
      “The Court: It says when no probable cause is found, if he moves to dismiss, he gets dismissed.
      “[Assistant State’s Attorney]: At the time of arraignment, Your Honor— If I may make a record, please. At the time of arraignment, the only issue before the court is as to probable cause. If there is no probable cause, under State v. Middleton [20 Conn. App. 321, 566 A.2d 1363 (1989)], I believe the appropriate remedy at that point is to release the defendant without bond, not dismiss the matter. It’s inappropriate to dismiss at this juncture.
      “The Court: I’ve ruled. Sir, technically, they went about this the wrong way.”

       Practice Book § 36-12 provides: “An information shall be signed by the prosecuting authority. When any person is arrested without a warrant or is issued a summons, the prosecuting authority shall, without unnecessary delay, review the acts complained of and determine whether it appears that there is reasonable cause to believe that an offense has been committed within the jurisdiction of the court and that the person arrested or the person to whom the summons was issued committed the offense. If the prosecuting authority determines that reasonable cause exists, it shall, in cases where an information is required, present an information to the court, pursuant to Section 36-11. If the prosecuting authority determines that reasonable cause does not exist, it shall not present the matter to the court, but an entry shall be made on the case papers indicating that prosecution was declined upon authority of this section, and a brief statement shall be made in open court. For purposes of erasure pursuant to the General Statutes, that action shall be deemed a dismissal.”

       General Statutes § 54-46 provides: “For all crimes charged by the state on or after May 26,1983, the prosecution maybe by complaint or information. For all crimes punishable by death or imprisonment for life charged by the state before May 26, 1983, the prosecution shall be by indictment.”

       See footnote 3.