author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. WILLIE GARVIN
    (15092)
    Dupont, C. J., and Landau and Heiman, Js.
    Argued June 11
    officially released September 17, 1996

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

The issues on appeal are (1) whether the defendant’s conviction on two counts of failure to appear in violation of General Statutes § 53a-172 violated his federal constitutional right to be free of double jeopardy and (2) whether the trial court had an affirmative obligation to tell the defendant that he could withdraw his plea of guilty at his sentencing proceeding.

The record reveals the undisputed facts and procedural history that follow. Two separate incidents caused the state to charge the defendant by way of two separate informations. One information charged the defendant with the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), and the other with the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21. The robbery charge stemmed from an incident on or about June 28, 1993, and the sexual assault and risk of injury charges stemmed from an incident on or about December 6, 1992.

On February 5, 1994, bail in each case was set at $15,000, and on November 7,1994, the defendant, pursuant to a plea agreement with the state, pleaded guilty to all charges under the Alford doctrine in exchange for a recommendation of a total effective sentence of fifteen years incarceration suspended after eight years with three years probation. The trial court informed the defendant that if he failed to appear at the sentencing hearing scheduled for January 6, 1995, the trial court would no longer follow the agreement and could impose the maximum sentence allowed for all three charges, which totaled forty years. The trial court also informed the defendant that if a sentence greater than the bargained sentence was imposed, he could withdraw his guilty pleas.

The defendant failed to appear for both his presen-tence investigation interview and his January 6 sentencing hearing. At that time, the trial court noted that the defendant failed to appear for sentencing and that it was not obliged to impose the bargained sentence. The trial court ordered each bond from each case forfeited and issued two bench warrants for the defendant’s arrest. The defendant was apprehended and the state charged him with two additional felony counts of failure to appear in the first degree in violation of General Statutes § 53a-172 for his wilful failures to appear for sentencing for the charges against him in each case.

On July 10, 1995, the defendant appeared before the trial court and was sentenced on both his outstanding convictions and his failure to appear charges. At the commencement of the hearing, the trial court reminded the defendant of the effect of his failure to appear, namely, that the court was no longer bound by the plea agreement. The defendant then moved to withdraw his guilty pleas on the sole ground that he was under the influence of drugs at the time he entered those pleas. The trial court denied the motion for lack of evidentiary support and, following sentencing arguments, imposed a total effective sentence of eighteen years incarceration, execution suspended after twelve years, with three years probation. The defendant did not attempt to withdraw his guilty pleas during the sentencing hearing on the ground that the court failed to follow the plea agreement.

The defendant then pleaded guilty to both counts of failure to appear, and the trial court sentenced him to one year incarceration on each count, to run concurrently with each other and with the sentences imposed arising from the previous pleas.

I

DOUBLE JEOPARDY CLAIMS

A

Two Counts of Failure to Appear

The defendant claims that his convictions on two counts of failure to appear, both in violation of § 53a-172, violated his federal and state constitutional rights against double jeopardy because the counts arose from the single act of failing to appear at the January 6 sentencing hearing. The defendant failed to raise this issue to the trial court and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The record is adequate for review, and this claim implicates a constitutional right prohibiting one’s life or limb to be put twice in jeopardy for the same offense. We, therefore, turn to the question of whether a violation of such right clearly exists.

“ ‘The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).’ . . . State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985).” (Emphasis in original.) State v. Freeney, 228 Conn. 582, 587-88, 637 A.2d 1088 (1994). “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, supra, 120.

A plain reading of § 53a-172 and a review of Connecticut case law are necessary to resolve this issue. General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.” Section 53a-172 is classified as a class D felony.

In State v. Candito, 4 Conn. App. 154, 161, 493 A.2d 250 (1985), we determined that the existence of an underlying felony charge in connection with the failure to appear was a necessary element of the crime of failure to appear in the first degree. In that case, the state charged the defendant with failure to appear in violation of § 53a-172 as a result of his failure to appear in court on the day of his scheduled sentencing for five felonies to which he had pleaded guilty. Id., 156. The defendant was convicted of the crime of failure to appear after a jury trial. On appeal, he claimed that the trial court improperly admitted into evidence the specific felonies for which he had been found guilty at the time he failed to appear. Id. We concluded that because the state had to prove beyond a reasonable doubt that the defendant “ ‘while charged with the commission of a felony,’ ‘wilfully’ ” failed to appear, the underlying felony charges to which the defendant had pleaded guilty were relevant and material to the elements of the crime of failure to appear. Id., 161. The elements of § 53a-172, therefore, require that the state prove beyond a reasonable doubt that while charged with the commission of a felony and out on bail or released by procedure of law, the charged person wil-fully fails to appear when legally called.

Failure to appear pursuant to the statute requires proof of an underlying crime. The statute pertains to the punishment of individuals who wilfully defy a court’s authority to require them to appear in court to answer to a specific criminal charge, not to the punishment of those who merely wilfully fail to appear in court when called. Had the legislature intended to punish only the act of failing to appear, it would not have added the element of “while charged with the commission of a felony.” General Statutes § 53a-172. Each failure to appear relates to the underlying charge for which the individual failed to appear. Another statute, General Statutes § 53a-173, punishes for failure to appear to answer to a misdemeanor. Thus, if the two separate crimes for which the defendant was to be sentenced were a misdemeanor and a felony, two separate charges of failures to appear would have been proper. These statutes, §§ 53a-172 and 53a-173, seek to punish the wilfulness of failing to appear to answer to a specific charge when legally called according to the terms of a bail bond or promise to appear. If the legislature merely intended to punish the act of failure to appear, it would not have created separate statutes and imposed different penalties for those individuals refusing to appear for a felony as opposed to a misdemeanor.

If § 53a-172 were interpreted as the defendant would have us inteipret it, the result would be an absurdity. If an individual wilfully failed to appear in court to answer to both a felony charge and a misdemeanor charge, each arising from separate incidents; Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); the individual could be charged with failure to appear under both §§ 53a-172 and 53a-173 because each statute requires proof of a different element. If, however, he failed to appear to answer two separate felony charges arising from separate incidents, both being serious crimes, the defendant’s argument would mean that he could be charged with only one count of failing to appear under § 53a-172.

The defendant relies on State v. Rawls, supra, 198 Conn. 121. In that case, the court concluded that there was a double jeopardy violation under the federal constitution where the defendant was punished twice under the same statute for the simultaneous possession of two different types of narcotic substances. The court stated: “If a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place. Braden v. United States, 270 F. 441, 443-44 (8th Cir. [1920]). Merely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts and designating only one of the persons or things in one count and designating only the other person or thing in the other count. Robinson v. United States, 143 F.2d 276, 277 (10th Cir. [1944]). State v. Cimino, 33 Conn. Sup. 680, 684, 366 A.2d 1168 (1976).” (Internal quotation marks omitted.) State v. Rawls, supra, 120-21.

In this case, however, the defendant has not stolen four horses, each of a different color, from the same bam, but rather he has, in effect stolen one horse from one bam and another horse from another barn, each act occurring in different years, and then has failed to answer to each of these felony charges in which separate bonds issued, by wilfully failing to appear in court. The defendant’s criminal violations of § 53a-172 arise as a derivative of two previous, underlying felonies that arose from separate transactions.

Because § 53a-172 seeks to punish the act of wilfully failing to appear when called to answer to a specific crime charged, we conclude that, in this case, no double jeopardy violation exists where the defendant pleaded guilty to two counts of failure to appear on the same day for sentencing on two separate felony charges, stemming from two distinct incidents, in which separate bonds were issued. In order for double jeopardy to exist there must be a dual punishment of the same offense arising out of the same act. Here, there was one act, a failure to appear on a given day, but two offenses because each charge of failure to appear involved an element that the other did not, namely, being charged with the commission of separate felonies. State v. Coleman, 41 Conn. App. 255, 275-77, 675 A.2d 887, cert. granted, 237 Conn. 931, 677 A.2d 1372 (1996). The defendant’s constitutional right to be free of double jeopardy was not violated, and he cannot prevail under Golding.

B

Sentencing on Felony Charges and Failure to Appear

The defendant also claims that his convictions on two counts of failure to appear in the first degree violated his federal and state constitutional rights not to be put twice in jeopardy because the trial court had already punished him for his failure to appear by revoking the plea agreement and sentencing the defendant to a prison term of greater duration for the underlying felony charges. The defendant failed to raise this issue to the trial court and, therefore, seeks review under State v. Golding, supra, 213 Conn. 239-40. The first two elements of Golding are satisfied because the record is adequate for review, and the defendant bases his claim on the constitutional right to be protected against multiple punishments for the same offense. We, therefore, turn to the question of whether a violation of such right clearly exists.

Three separate guarantees are embodied in the double jeopardy clause. “It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-307, 104 S. Ct. 1805, 80 L. Ed. 2d 311 (1984).

This case does not involve the first guarantee because the defendant was not acquitted of a crime and subsequently prosecuted for the same offense; nor does this case involve the second guarantee because this claim does not involve a second prosecution for the same offense after a conviction. Rather the defendant is attempting to invoke the third guarantee by arguing that he has received multiple punishments for the same offense.

“Sentencing is an individualized procedure in which the court has the grave responsibility to determine and impose, within applicable statutory limits, the appropriate punishment for a particular defendant. Williams v. New York, 337 U.S. 241, 246-49, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).” State v. Candito, supra, 4 Conn. App. 158. “Punishment must fit the criminal as well as the crime.” Id., 159.

Justice requires that courts be able to review the criminal’s conduct outside the four comers of the particular case in order to provide a punishment that fits the criminal. “For the determination of sentences, justice generally requires consideration of more than the particular acts for which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 82 L. Ed. 43 (1937); see also State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). Included as part of this consideration is conduct arising subsequent to the conviction of the underlying crime and prior to final sentencing. Although this subsequent conduct may result in separate criminal charges, numerous federal courts have held that such subsequent action is not barred by the double jeopardy clause. See United States v. Carey, 943 F.2d 44 (11th Cir. 1991); United States v. Mack, 938 F.2d 678 (6th Cir. 1991); United States v. Garcia, 919 F.2d 881 (3d Cir. 1990); United States v. Troxell, 887 F.2d 830 (7th Cir. 1989); Sekou v. Blackburn, 796 F.2d 108 (5th Cir. 1986); United States v. Brown, 785 F.2d 587 (7th Cir. 1986); United States v. Wise, 603 F.2d 1101 (4th Cir. 1979).

The defendant attempts to distinguish these federal cases by arguing that in this case the trial court had already determined the defendant’s appropriate sentence and then enhanced it solely due to the defendant’s failure to appear. In this case, however, the trial court had not definitively determined the defendant’s sentence and had reserved final consideration for a later date. Furthermore, these federal cases make no distinction as to when the conduct must be discovered before final sentencing in order to be considered by the trial court without implicating double jeopardy, and we refuse to do so.

“[T]he prohibition against double jeopardy is not implicated when a defendant is indicted for an incident of conduct previously used to increase the length of his sentence for a separate offense.” United States v. Mack, supra, 938 F.2d 679. “The Double Jeopardy Clause is no more implicated here than when a sentencing judge considers prior criminal activity (or convictions) in imposing a sentence. Consideration of criminal conduct as an aggravating circumstance does not convert the sentencing proceeding into a trial, conviction, or punishment for the criminal activity so considered. . . . [Consideration of other crimes at sentencing does not implicate the Double Jeopardy Clause because the defendant is not actually being punished for the crimes so considered. Rather, the other crimes aggravate his guilt of, and justify heavier punishment for, the specific crime for which [the] defendant has just been convicted.” (Emphasis in original.) Sekou v. Blackburn, supra, 796 F.2d 111-12.

The trial court in this case properly reviewed the conduct of the defendant in order to impose a suitable sentence once the original bargained sentence became improper due to the defendant’s subsequent conduct. See State v. DeJesus, 10 Conn. App. 591, 603-604, 524 A.2d 1156 (1987). In doing so, the trial court properly exercised its discretion to impose an appropriate punishment that fit the criminal and the crime.

It is not unusual to condition the acceptance of a recommendation for a plea agreement on factors, other than the elements and circumstances of the crimes to which a defendant has pleaded guilty, such as a presen-tence investigation report. Because the presentence report has the purpose of making certain that a penalty will fit the criminal and crime; State v. Gullette, 3 Conn. Cir. Ct. 153, 167, 209 A.2d 529 (1964); and includes many factors, including the desire of the defendants to rehabilitate themselves and including the input of victims, we have held that a trial court cannot definitively promise a particular and certain sentence until it has reviewed a presentence investigation report. State v. DeJesus, supra, 10 Conn. App. 603. “The role of a trial judge at sentencing is such that public policy considerations bear against the specific performance of any promise regarding sentencing made by a judge. Modern precepts of penology require that the discretion of a sentencing judge to impose a just and appropriate sentence remain unfettered throughout the sentencing proceedings. . . . [U]ntil sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate.” (Citations omitted; internal quotation marks omitted.) Id., 603-604.

At the time of the plea agreement in this case, a presentence report had not yet been prepared, and therefore, the court’s agreement could not be binding until such report was reviewed. See id. General Statutes § 54-91a, as interpreted by Connecticut case law, permitted the trial court in this case to consider the defendant’s conduct subsequent to the original agreement.

Because a trial court is under no obligation to fulfill a promise made prior to the review of a presentence investigation report; State v. DeJesus, supra, 10 Conn. App. 603; the fact that the court refused to accept the agreement as a result of the defendant’s failure to appear for sentencing does not give rise to a double jeopardy violation. See State v. Ryerson, 20 Conn. App. 572, 579-80, 570 A.2d 709, cert. denied, 214 Conn. 806, 573 A.2d 318 (1990). The ability of a trial court to refuse a sentence agreed upon prior to a review of the presentence investigation report does not serve as punishment for the act that gives rise to the refusal, but rather the refusal concerns the original crime for which the defendant was charged. See id.

Finally, the defendant argues that the reasoning of United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), controls this issue. In that case, the Supreme Court found a double jeopardy violation where the defendants were convicted on substantive criminal charges based on the same conduct for which they previously had been held in criminal contempt of court and where the substantive criminal charges did not include any element not already contained in the previously tried contempt charges.

In this case, unlike in United States v. Dixon, supra, 509 U.S. 688, no prosecution, trial or proceeding prior to the defendant’s convictions for failure to appear were commenced to punish the same conduct that the prosecution for failure to appear sought to punish. The fact that the defendant’s conduct of failing to appear resulted in a refusal to accept the plea agreement does not amount to a double punishment for the same offense. The defendant has failed to show that a constitutional violation clearly exists, and, therefore, he cannot prevail under Golding.

II

RIGHT TO WITHDRAW PLEAS

The defendant claims that the trial court exceeded its authority when, in return for the defendant’s guilty pleas, it agreed to accept the plea agreement that imposed a maximum sentence of fifteen years incarceration suspended after eight years with three years probation, but conditioned its acceptance of the sentence on the defendant’s appearance in court on the scheduled sentencing date. The defendant did not raise this issue to the trial court when it accepted the defendant’s plea or when it sentenced the defendant, and he seeks review under State v. Golding, supra, 213 Conn. 239-40.

When the trial court accepted the pleas, the defendant was told that if the court imposed a sentence greater than the agreed upon recommendation, the defendant would be allowed to withdraw his pleas. See footnote 3. When the trial court accepted the defendant’s pleas, the court also advised the defendant that if he did not show up on the scheduled sentencing date, the court could impose a sentence up to the maximum allowed on all charges. On the date of sentencing, the trial court did exactly what he had previously told the defendant he would do. Because the defendant failed to appear at the scheduled hearing, the trial court rejected the plea agreement and imposed a longer sentence than that previously agreed upon.

The defendant argues that, according to State v. Schaeffer, 5 Conn. App. 378, 498 A.2d 134 (1985), the trial court had a mandatory obligation to afford him the opportunity to withdraw his guilty pleas once it concluded that it could not impose a sentence previously agreed upon. In State v. Schaeffer, supra, 379, the defendant entered a plea of nolo contendere in exchange for a recommendation of a sentence of one year. The defendant was not told by the trial court that if the sentence imposed exceeded the recommendation that he would be allowed to withdraw his plea. Id., 380. The trial court also did not inform the defendant that if the case was continued for sentencing, a different sentence might be imposed. Id. At sentencing, the trial court did not advise the defendant that it would not follow the plea agreement before it imposed a greater sentence. Id. Written motions to withdraw the plea and to correct the sentence were made two days after sentencing, and the trial court denied both motions after a hearing. Id., 381.

In Schaeffer, the state argued that Practice Book § 720 prohibited the defendant from moving to withdraw his plea after the sentencing proceeding. We found that the defendant was not informed “by the court in accordance with Practice Book § 697 that since his case was being continued for sentencing, he might be sentenced by another judicial authority who might impose a different sentence from that which was the subject of the plea agreement, and, if so, that he would be allowed to withdraw his plea . . . .” Id., 387. As a result of this failure, we recognized that the plea canvass was defective and that “[a] plea which is invalid ab initio because of a deprivation of due process does not become any more valid after sentence is imposed and the sentencing proceeding has concluded.” Id., 386. We, therefore, concluded that “Practice Book § 720, relating to the finality of sentencing hearings, did not prevent the trial court from granting his motion to withdraw his plea at a subsequent time.” Id., 388.

We concluded in that case that the trial court had a mandatory obligation to inform the defendant of his right to withdraw his plea because of the imposition of a “surprise” sentence in which the defendant had not previously been informed of the possibility of an increased sentence or of his right to withdraw his plea if a sentence in excess of the plea agreement was imposed. “When the defendant’s reasonable expectation that his sentence will not exceed a particular term is to be defeated because of the trial court’s decision, in the proper exercise of its discretion, that a sentence in excess of an agreed term is appropriate, the defendant must be given the opportunity by the trial court to withdraw his plea. Practice Book § 698 is couched in mandatory terms. The words ‘afford the defendant the opportunity then to withdraw his plea’ imply action by the court in order to provide the mechanism for withdrawal. There is an affirmative obligation on the court. Practice Book § 698 is not fulfilled by placing the onus on the defendant to make amotion to withdraw his plea after the imposition of a ‘surprise’ sentence and before the conclusion of the proceedings.” Id., 390-91.

In the present case, the defendant had been informed of his right to withdraw his plea if the trial court refused to accept the agreement, and he was informed that certain subsequent bad conduct, specifically failing to appear, could result in a refusal to accept the plea agreement. Unlike State v. Schaeffer, supra, 5 Conn. App. 378, a review of the record does not illustrate any defect in the plea canvas. On the day that the defendant was actually sentenced, he was aware that his failure to appear would likely nullify the plea agreement and possibly result in an increased sentence. The trial court at the sentencing on July 10, 1995, stated that it was refusing to accept the plea agreement, unlike the court in Schaeffer.

Because Practice Book § 720 precludes a defendant from withdrawing his plea after the conclusion of sentencing, “[t]he failure of the defendant to make amotion to withdraw his plea before the conclusion of the proceeding at which the sentence was imposed ordinarily precludes review of claimed infirmities in the acceptance of a plea. State v. Martin, 197 Conn. 17, 21, 495 A.2d 1028 (1985); State v. Kiss, 3 Conn. App. 400, 488 A.2d 845 (1985).” State v. Schaeffer, supra, 5 Conn. App. 385. In this case, the defendant failed to move to withdraw his pleas prior to the conclusion of sentencing.

“A criminal defendant has the capacity to waive many of his or her fundamental procedural rights. The defendant can waive the right to counsel; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992); the right to remain silent; Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Roseboro, 221 Conn. 430, 442, 604 A.2d 1286 (1992); the right, to be present during trial; State v. Simino, 200 Conn. 113, 125-29, 509 A.2d 1039 (1986); and, by entering a guilty plea, the rights to trial by juiy and to confrontation, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).” State v. Patterson, 230 Conn. 385, 392, 645 A.2d 535 (1994).

“Timely objection selves to avoid prejudicial error by permitting the trial court and the prosecutor to reconsider and perhaps change their courses of conduct while that is still possible. Government of Virgin Islands v. Forte, 806 F.2d 73 (3d Cir. 1986). ... As the United States Supreme Court has stated, [n]o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right. Peretz v. United States, 501 U.S. 923, 936-37, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991), quoting Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 2d 834 (1944).” (Citation omitted; internal quotation marks omitted.) State v. Patterson, supra, 230 Conn. 392-93.

In this case, the trial court informed the defendant, during the course of taking his plea, of his right to withdraw his guilty pleas if the plea agreement was not followed and an increased sentence imposed. At the sentencing hearing, the trial court stated that it would not follow the plea agreement because of the defendant’s subsequent conduct of failing to appear, which was the exact conduct that the trial court had warned could result in a refusal to accept the plea agreement. The defendant failed to make any motion to withdraw his pleas on the ground that the trial court imposed a sentence in excess of the plea agreement, but rather the defendant moved to withdraw his pleas on the ground that he was under the influence of drugs when he entered those pleas. Because the defendant had been advised that he could withdraw his pleas if the sentence were greater than the bargained sentence and because he had been told at the time the court accepted his pleas that a greater sentence could be imposed if he failed to appear, we conclude that the defendant waived his right to withdraw his pleas. The defendant has failed to show that a constitutional violation clearly exists, and we conclude that he cannot prevail under Golding because no constitutional violation clearly exists.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant characterizes this second issue as follows: The trial court exceeded its authority when it conditioned a plea agreement on the defendant’s appearance in court on the scheduled sentencing date.

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

       The following colloquy occurred:
      “The Court: I’m going to sentence you on January 6. Understand that?
      “The Defendant: Yes, sir.
      “The Court: Now, if I give you more than fifteen [suspended] after eight and three probation, you can take your plea back. Understand that? As long as I give you that sentence you can’t take your plea back by saying I violated the plea agreement. Your understand that?
      “The Defendant: Yes, sir.
      “The Court: Now, if you don’t show up on January 6, I’m going to order a rearrest, and they are going to come and they will find you, and they’ll arrest you. Now you are charged with failure to appear, you could get five years and or $5000 on that. You understand that?
      “The Defendant: Yes, sir.
      “The Court: But, I’m not going to be bound by the plea agreement of fifteen years suspended after eight years and three years probation. You understand that?
      “The Defendant: Yes, sir.
      “The Court: If you don’t show up, when they catch you, I could give you anywhere from nine months to forty years on the robbery, risk of injury, and the sexual assault second degree, plus you have the failure to appear to worry about. You understand that?

        “The Defendant: Yes, sir.
      “The Court: Any misunderstanding about that?
      “The Defendant: No, sir.”

         The double jeopardy clause of the fifth amendment to the United States constitution provides in relevant part that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
      The Connecticut constitution does not include a specific double jeopardy provision, but the due process guarantee of article first, § 9, has been interpreted to provide one. State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

       The defendant has offered no separate analysis under the state constitution. We, therefore, choose to consider the claim solely under the federal constitution. See State v. Blackwell, 20 Conn. App. 193, 195-96, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989).

       The defendant can prevail only by satisfying all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       The defendant has offered no separate analysis under the state constitution and we choose to consider the claim solely under the federal constitution. State v. Blackwell, supra, 20 Conn. App. 195-96.

       The trial court had evidence of the defendant’s extensive criminal past, dating back to 1976. The court stated: “Looking at your record, Mr. Garvin, this is about your ninth felony conviction going back to 1976. Burglary, burglary, burglary, again, assault two. You had gotten sentences, probation, where you could have had a drug program. The facts of the cases here, one, the commercial robbery, firearm being threatened or the use of it being threatened, people being herded into a freezer. Then we have a young girl being forced to subject herself to forcible vaginal intercourse. Serious offenses. Based upon that and based upon your record, sir, based upon the fact that you failed to appear for sentencing as agreed on the robbery charge, you are committed to the custody and care of the commissioner of correction for a period of eighteen years, suspended after twelve years, placed on probation for three years. On the sex two, five years to run concurrent. On the risk of injury, five years to run concurrent. The total effective sentence is eighteen after twelve and three years of probation. The conditions of probation are full-time employment within thirty days you are released from jail. Substance abuse evaluation and treatment is recommended.”
      The trial court was also made aware of the defendant’s failure to appear for his presentence investigation and of the defendant’s arrest for burglary in the second degree on or about December 22, 1994, after his Alford pleas to the underlying charges in this case.

       General Statutes § 54-91a provides for a written report of investigation by a probation officer whenever punishment for a crime for which a defendant may be sentenced exceeds one year.

       Practice Book § 720 provides in relevant part, that “[a] defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STACIA ROBERTO v. HONEYWELL, INC., ET AL.
    (14870)
    Dupont, C. J., and Landau and Hennessy, Js.
    Submitted on briefs June 7
    officially released September 17, 1996

      William R. Moller filed a brief for the appellant (plaintiff).

      Andrew J. O ’Keefe and Maureen Sullivan Dinan filed a brief for the appellees (defendants).
   HENNESSY, J.

This negligence action arises from an automobile collision in October, 1988. The matter was first tried to a jury in 1992 and resulted in a verdict for the defendants. The plaintiff appealed from the judgment, and we reversed the trial court and remanded the case for a new trial. Roberto v. Honeywell, Inc., 33 Conn. App. 619, 637 A.2d 405, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). After a new trial, the jury returned a verdict for the defendants, and the trial court denied the plaintiffs motions to set aside and for judgment notwithstanding the verdict. This appeal ensued. On appeal, the plaintiff claims that the trial court improperly (1) limited the plaintiffs cross-examination of the defendant Shannon Garrett regarding motive, (2) admitted testimony on Garrett’s prior consistent statements, (3) permitted the defendants’ expert to testify, (4) admitted testimony on the plaintiffs alleged admission by silence and (5) limited the plaintiffs expert testimony in rebuttal.

The jury could reasonably have found that on October 7, 1988, the plaintiff, Stacia Roberto, was driving an automobile with Garrett as her passenger when the vehicle slid off the road and struck a fence and a tree.

On August 15,1990, the plaintiff brought a negligence action to recover damages for the injuries she sustained in the collision. Her complaint alleged that Garrett was the driver of the car and that Garrett’s negligent operation of the vehicle caused the plaintiffs injuries. In an amended answer, Garrett denied that she was operating the car at the time of the collision. During the new trial on remand, the parties presented testimony and expert evidence regarding who was driving the automobile. The jury returned a verdict for the defendants, and the trial court denied the plaintiffs motion to set aside the verdict.

In this appeal, the plaintiff claims that the trial court improperly made rulings in abuse of its discretion. We are unable to review the plaintiffs first two claims, however, because she has failed to comply with Practice Book § 4065 (d) (3). On these claims, her brief does not set forth the specific evidence that was excluded or admitted, the objections, the grounds for the objections, the claimed grounds of admissibility, or the evidentiary rulings by the court that allow for a review of these claims. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987). The mere assertion in a brief that evidence was improperly excluded, coupled with transcript page references, will not be sufficient. State v. Bagley, 35 Conn. App. 138, 145, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994); State v. Russell, 29 Conn. App. 59, 63, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992). For evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. State v. Russell, supra, 63; State v. Siller, 12 Conn. App. 395, 402, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

The plaintiff next contends that the trial court abused its discretion by allowing the defendants’ expert witness, Edward McDonough, to render opinions new and different from those that the defendants had disclosed pursuant to Practice Book § 220 (D) and those to which McDonough had testified in the previous trial. The plaintiff claims that the court improperly allowed McDonough to offer his opinions concerning whether the plaintiffs ankle injury would have prevented her from moving from the driver’s side of the car to the passenger side after the accident and whether the plaintiff received her head injury as a result of hitting the steering wheel. The gravamen of the plaintiffs complaint is that she did not have sufficient notice of these opinions to be able to address them at trial.

The defendants’ initial disclosure of expert witnesses disclosed McDonough as an expert witness. Before the second trial, on January 5, 1995, the defendants filed a supplemental disclosure of expert witnesses that addressed the proposed testimony of McDonough in the second trial. See Practice Book § 232. The disclosure states that McDonough’s prior deposition testimony, an accident reconstruction report, which had been disclosed to the plaintiff, and exemplars of a female and a vehicle, would serve as the premises for McDonough’s opinion testimony at trial. McDonough’s opinion remained that the plaintiff had been driving the vehicle. The trial court found that the disclosure addressed the testimony that McDonough would give at trial and that the plaintiff had ample opportunity to further depose McDonough concerning these matters. “[A] trial court enjoys broad discretion in deciding whether to exclude evidence based on failure to comply with a discovery request.” Berry v. Loiseau, 223 Conn. 786, 802, 614 A.2d 414 (1992). In view of these findings, we cannot conclude that the trial court abused its discretion.

We next address the plaintiffs claim that the trial court improperly admitted testimony of the plaintiffs alleged admission by silence. A witness testified that the plaintiff never denied that she was driving in response to statements made in her presence. The plaintiff argues that the defendants failed to lay a proper foundation for the introduction of the witness’ testimony and that the trial court, therefore, abused its discretion in admitting the hearsay statement.

In Connecticut, to admit as an admission evidence of the failure of a person to contradict or to reply to the statement of another person made in her presence and hearing, it is essential to establish that the person comprehended the statements made, that the person had the opportunity to speak, that the circumstances naturally called for a reply from that person and that the person remained silent. Obermeier v. Nielsen, 158 Conn. 8, 12, 255 A.2d 819 (1969); see also State v. Dan iels, 18 Conn. App. 134, 138, 556 A.2d 1040 (1989). Our Supreme Court has held in numerous cases that, where the facts contained in testimony admitted into evidence by an improper ruling are established by other evidence, the ruling will not be set aside unless the trial court abused its discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). The ultimate question in such a situation is whether the improper ruling of the court would have been likely to affect the result. Guerrieri v. Merrrick, 145 Conn. 432, 435, 143 A.2d 644 (1958).

In this case, we decline to set aside the trial court’s ruling to admit the testimony regarding the plaintiffs alleged admission by silence because the ruling, even if improper, would not have likely affected the result of the trial. The defendants established through other testimony that the plaintiff affirmatively stated that she was the driver. The court admitted the testimony as a statement against interest by the party opponent and the plaintiff did not object to its admissibility. We, therefore, conclude that even if the trial court improperly admitted testimony of the plaintiffs admission by silence, the plaintiff has failed to demonstrate a clear abuse of discretion on the part of the trial court.

The plaintiffs final claim asserts that the trial court improperly limited the plaintiffs expert’s testimony in rebuttal. During the presentation of its case, the defendants’ expert, McDonough, explained his theory of who was driving the vehicle based on the injuries. In rebuttal, the plaintiff sought to offer expert testimony from Steven Batterman concerning who was driving the vehicle and how the collision occurred in order to show the inconsistencies between Batterman’s theory and McDo-nough’s. The trial court allowed Batterman to testify that in his opinion the collision did not occur as McDo-nough had opined, but did not allow Batterman to testily concerning his theory of how the collision occurred. The plaintiff contends that the trial court abused its discretion by refusing to allow Batterman to testify on rebuttal as to his theory of how the collision occurred.

“The admission of rebuttal evidence lies within the sound discretion of the trial court. Shaham v. Capparelli, 219 Conn. 133, 134, 591 A.2d 1269 (1991)." Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 310, 645 A.2d 1044, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994). “The rule as to rebuttal evidence is thus stated in Hathaway v. Hemingway, 20 Conn. 191, 195 [1850]: ‘The rule upon this subject is a familiar one. When, by the pleadings, the burden of proving any matter in issue is thrown upon the plaintiff, he must, in the first instance, introduce all the evidence upon which he relies to establish his claim. He cannot, as said by Lord Ellenborough, go into half his case, and reserve the remainder. . . . The same rule applies to the defence. After the plaintiff has closed his testimony, the defendant must then bring forward all the evidence upon which he relies, to meet the claim on the part of the plaintiff. He cannot introduce a part, and reserve the residue for some future occasion. After he has rested, neither party can, as a matter of right, introduce any farther testimony which may properly be considered testimony in chief.’ Professor Wigmore states the rule as follows: ‘It is perfectly clear that the orderly presentation of each party’s case would leave the proponent nothing to do, in his case in rebuttal, except to meet the new facts put in by the opponent in his case in reply. Everything relevant as a part of the case in chief would naturally have been already put in; and a rebuttal is necessary only because, on a plea in denial, new subordinate evidential facts have been offered, or because, on an affirmative plea, its substantive facts have been put forward, or because, on any issue whatever, facts discrediting the proponent’s witnesses have been offered. To discriminate between the first of these classes and the opponent’s testimony merely denying the same facts that the proponent’s witnesses had originally affirmed, is no doubt often difficult, and it is then not easy to say whether the proponent’s testimony in rebuttal might or might not as well have been put in originally; yet the principle involved is clear. Moreover, practical disadvantages that would result from abandoning the natural order of evidence are, first, the possible unfairness to an opponent who has justly supposed that the case in chief was the entire case which he had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning.’ 4 Wigmore, Evidence (2d Ed.) § 1873.” DiMaio v. Panico, 115 Conn. 295, 297-99, 161 A. 238 (1932).

In the present case, the plaintiff offered expert testimony from James Kenny in her case-in-chief concerning how the collision occurred and who was driving. Bat-terman’s proposed testimony also sought to explain how the collision occurred and who was driving. The trial court properly allowed Batterman to testify in rebuttal that in his opinion the collision had not occurred as the defendants’ expert had explained, but the trial court did not abuse its discretion by precluding Batterman’s opinion testimony concerning how the collision occurred and who was driving the vehicle. The plaintiff was free to proffer Batterman’s theory during her case-in-chief and her failure to do so does not make the testimony proper in rebuttal. We conclude that the trial court did not improperly limit the plaintiffs expert testimony in rebuttal.

The judgment is affirmed.

In this opinion the other judges concurred.

       In both the original trial and the trial on remand, the jury stated in special interrogatories that the plaintiff was the driver of the car.

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate . . . the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answ'er, if any; the ruling; and any exception. . . .”

       Practice Book § 220 (D) at the time of trial in this case provided: “In addition to and notwithstanding the provisions of subsections (A), (B) and (C) of this section, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds fox-each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosxxre of the name of any expert expected to testify at trial is not made in accox-dance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       While this court has held that the mere disclosure of an expert witness’ report, or deposition testimony is not sufficient to disclose an expert in the first, instance; Sung v. Butterworth, 35 Conn. App. 154, 158-59, 644 A.2d 395 (1994), appeal dismissed, 235 Conn. 400, 665 A.2d 893 (1995) (certification improvidently granted); this case does not involve the initial disclosure of an expert witness. This case concerns a supplemental disclosure of an expert already disclosed. This distinction arises from the text of Practice Book § 220 (D), which specifically states that if a party fails to disclose the name of an expert witness, the court may in its discretion preclude the expert’s tesümony.


author: SPALLONE, J.

text:
    DANIEL C. MACLEAN ET AL. v. TOWN OF DARIEN ET AL.
    (13356)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued April 29
    officially released September 17, 1996

      Ridgely W. Brown, for the appellants (plaintiffs).

      Randolph T. Lovallo, for the appellees (defendants).
   SPALLONE, J.

The plaintiffs appeal from the judgment of the trial court dismissing their challenge to the decision of the board of tax review of the town of Darien regarding a tax assessment on real property they own. On appeal, they claim that the trial court (1) improperly failed to consider disproportionate valuation questions when the decennial revaluation process, as set forth in General Statutes § 12-62, failed to conform to the statutory requirements for revaluation in violation of General Statutes § 12-119 and (2) placed a clearly erroneous assessment on the improvements on the property.

The trial court found the following facts. The plaintiffs own 2.88 acres of waterfront residential property at 25 Contentment Island Road, Darien, which they purchased in October, 1986, for $3,400,000. The subject property fronts on its own sandy beach and is improved by a residence built in 1916, consisting of ten rooms, including five bedrooms, plus five full baths and a half bath.

On October 1,1988, the defendants, pursuant to General Statutes § 12-62, performed a decennial revaluation of all of the real estate in the town of Darien. As a result of the revaluation, the tax assessor of the town of Darien determined that the fair market value of the subject property was $2,500,900 ($1,602,500 for the land and $898,400 for improvements), and the assessment value (at 70 percent of fair market value) was $1,750,630 ($1,121,750 for land and $626,880 for improvements). The trial court found that although “the method used by Sabre Systems, which was hired to conduct a town-wide, mass appraisal, was flawed in the sense that it fails to sufficiently take into account individual characteristics of a particular piece of property” “in this specific instance, Sabre Systems’ appraisal seems to be reasonably on target.” The court found that the defendants’ appraiser was more credible than the plaintiffs’ appraiser and that the assessment in question was neither “excessive” nor “manifestly excessive.” Accordingly, it rendered judgment in favor of the defendants.

We note that in the trial court’s original memorandum of decision dated December 15, 1993, the court found that the plaintiffs had failed to establish that the assessment was either excessive or manifestly excessive, and, therefore, “dismissed” the case for lack of aggrievement. The court’s own words in that memorandum, however, belie the finding of lack of aggrievement because the court heard evidence, made findings and rendered judgment on the merits in favor of the defendants, setting the amount of the assessment at the same amount as had been set by the assessor. Moreover, in its amended memorandum of decision dated February 2,1994, in response to the plaintiffs’ motion to reargue, the court did not refer to “dismissal” of the action for lack of aggrievement. It again unequivocally found in favor of the defendants on the merits and, accordingly, on the same date, rendered judgment on the merits. It is that judgment that we review herein.

In an appeal involving a decision of an administrative body, the trial court has subject matter jurisdiction only if the plaintiff has standing to bring the action by virtue of his being an “aggrieved party.” Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). The plaintiffs are statutorily aggrieved because § 12-119 provides that an owner may bring an action when he claims “that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property . . . .’’General Statutes § 12-119. The plaintiffs claim to be aggrieved because of this statutory provision and have standing to maintain this action. See General Realty Improvement Co. v. New Haven, 133 Conn. 238, 50 A.2d 59 (1946) (construing General Statutes [1941 Sup.], § 165f [a predecessor to § 12-119]).

I

The plaintiffs first claim that the trial court improperly failed to consider “disproportionate valuation questions where the trial court itself found that the mass appraiser failed sufficiently to take into account individual characteristics of particular pieces of property.”

“[Section] 12-119 allows a taxpayer to bring a claim [1] that the tax was imposed by a town that had no authority to tax the subject property, or [2] that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .” (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 340-41, 654 A.2d 1233 (1995). The plaintiffs’ claim falls into the second category.

On the face of § 12-119, as well as under Pauker v. Roig, supra, 232 Conn. 335, in order to prevail on a claim under the statute, the plaintiffs must demonstrate both a “manifestly excessive” assessment and disregard of the statutes in arriving at that assessment. “There is no mandatory formula for determining what is ‘manifestly excessive’ . . . and in any assessment case, the trial court is confronted with conflicting accounting methods; giving credence to one over the other is a proper exercise of its function as a trier of fact.” (Citations omitted.) Connecticut Coke Co. v. New Haven, 169 Conn. 663, 666, 364 A.2d 178 (1975).

“Courts must be cautious in choosing between conflicting systems [of assessment] since those calculations, although made in the best of faith, can lead to widely divergent results. ... At the same time, proper deference must be given to the judgment and experience of assessors. In reviewing valuations, we must bear’ in mind that the process of estimating the value of property for taxation is, at best, one of approximation and judgment, and that there is a margin for a difference of opinion. . . . The law contemplates that a wide discretion is to be accorded to assessors, and unless their action is discriminatory or so unreasonable that property is substantially overvalued and thus injustice and illegality would result, their opinion and judgment should control in the determination of value for taxation purposes.” (Citation omitted; internal quotation marks omitted.) Id., 667-68.

In making factual findings, “[t]he trier is not limited to arbitrating the differing opinions of the witnesses but is to make determinations in the light of all the circumstances, the evidence [and] his general knowledge . . . .” Filipetti v. Filipetti, 2 Conn. App. 456, 458-59, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). “The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part.” Id., 459. “[F]actual findings of a trial court . . . are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it. . .or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 420, 676 A.2d 405 (1996). “ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ ” Lukas v. New Haven, 184 Conn. 205, 208, 439 A.2d 949 (1981).

The record, including the trial court’s twelve page memorandum of decision, reveals that the court conducted a trial de novo, at which it heard considerable testimony with regard to the value of the improvements on the property, including appraisal reports and testimony from several sources on the issue of relative property values, and that it carefully considered all of the evidence presented. The court’s memorandum of decision indicates that the trial court, in particular, considered the testimony presented by both the plaintiffs’ and the defendants’ experts on the issue of valuation, and found the testimony of the defendants’ expert more credible than that of the plaintiffs’ expert. The trial court also specifically found that the plaintiffs’ assessment was neither excessive nor manifestly excessive. The trial court, based on its review of all of the evidence before it, performed its own assessment, and the plaintiffs have not demonstrated any flaw in the assessment performed by the court. The court set a fair market value on the property of $2,500,900 ($1,602,500 for the land and $898,400 for the improvements) and an assessment value of $1,750,630 ($1,121,750 for the land and $628,880 for the improvements), which was the same as that determined by the defendants. Although the court found that “the method used by [the defendants to assess the property] was flawed in the sense that it fails to sufficiently take into account individual characteristics of a particular piece of property” the court stated that “[i]n this specific instance, [the] appraisal seems to be reasonably on target.”

We conclude that the trial court properly determined the value of the property, which valuation coincided with that of the defendants, and properly determined that the assessment was neither excessive nor manifestly excessive. Because the plaintiffs have failed to establish that their assessment was “manifestly excessive,” we do not reach the issue of whether the assessment method employed by the defendants violated the statutes. See Pauker v. Roig, supra, 232 Conn. 335.

II

The plaintiffs’ second claim is that the trial court’s fair market valuation of the improvements on the property at $898,400 was clearly erroneous. The basis of the plaintiffs’ claim is the trial court’s finding that the appraisal process was “flawed” and that testimony was given that the amount for which the property was insured was less than the value determined by the appraiser. We conclude that the trial court’s valuation was not clearly erroneous.

The burden is on the party claiming aggrievement to prove that “the assessor’s valuation [is] not the true and actual value of the property.” Executive Square Ltd. Partnership v. Board of Tax Review, 11 Conn. App. 566, 571, 528 A.2d 409 (1987). As discussed in part I, the plaintiffs have failed to carry that burden. Where the value placed on the property by the assessor is correct and “[t]he trial court has found the true and actual values of the property] to be the same as [that] determined by the assessors, and . . . these findings [of the trial court] . . . are obviously made . . . upon all the evidence in the case” there is no remedy. Slosberg v. Norwich, 115 Conn. 578, 581, 162 A. 772 (1932). The trial court, by its own independent valuation of the property based on the evidence placed before it at trial, found that the assessor’s valuation of the improvements was correct. Following our review of the record, discussed in part I, we cannot say that that finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiffs’ brief appeared to base this argument on both General Statutes § 12-118 (now § 12-117a) and § 12-119, counsel for the plaintiffs informed the court at oral argument in this appeal that the plaintiffs make no claim before this court under § 12-118. We therefore deem any § 12-118 claim abandoned and address only the § 12-119 claim.

       General Statutes § 12-119 provides: “Remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       The trial court equated lack of aggrievement with a failure to sustain the plaintiffs’ burden of proof that their property was overvalued. Aggrievement, instead, relates to the standing of a plaintiff to bring an action and is to be decided by a court before reaching the merits. “Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties.” (Internal quotation marks omitted.) Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996). The trial court’s reference to “standing” did not relate to jurisdiction. In any event, the court clearly had jurisdiction.

       Unlike a § 12-117a appeal, an appeal pursuant to § 12-119 is not an appeal from an administrative decision, but, rather, is a separate action to the trial court. The administrative decision is nevertheless the subject of the Superior Court action.

       Moreover, counsel ior the plaintiffs stated at oral argument that “the entire thrust of [their] case is that they are not claiming overvaluation” and, in fact, that “all of the properties [in this area] were undervalued.” Thus, the plaintiffs do not even claim the “manifestly excessive” valuation required to prevail under § 12-119.


author: O’CONNELL, J.

text:
    RALPH ABED v. COMMISSIONER OF CORRECTION
    (14782)
    Dupont, C. J., and O’Connell and Hennessy, Js.

      Argued March 18
    officially released September 17, 1996

      William Emmett Dwyer, for the appellant (petitioner).

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

The petitioner appeals from the habeas court’s granting of the respondent’s motion to quash and the dismissal of his habeas petition, claiming that the habeas court improperly concluded that (1) the prospective denial of good time credits does not deprive the petitioner of a liberty interest in his monthly accrual of good time credits, (2) the denial of statutory good time credits in this case did not constitute an improper prospective denial, and (3) the denial of good time credits was not prohibited by the ex post facto provisions of the United States and Connecticut constitutions. We affirm the judgment of the trial court.

The following facts and procedural history are pertinent to this appeal. The petitioner is serving a ten year sentence in the respondent’s custody. On December 10, 1993, the respondent implemented revised administrative directive 6.14 entitled “Security Risk Groups” to regulate and segregate prison gang member inmates. Directive 6.14 classifies inmates who have been found guilty of certain disciplinary offenses into two categories, one of which is security risk group safety threat members (safety threat). The directive restricts safety threat inmates to close custody units where they are observed at thirty minute intervals and denies them the opportunity to earn statutory good time credits pursuant to General Statutes § 18-7a (c).

On January 24, 1994, the petitioner was designated a safety threat pursuant to directive 6.14 and housed in the close custody unit at the Garner Institution, the community correction center in Newtown. The petitioner filed a pro se petition for a writ of habeas coipus challenging the prospective denial of statutory good time credits. The petitioner later obtained counsel, who filed an amended complaint on his behalf. The respondent filed a motion to quash the amended complaint on the ground that the court lacked subject matter jurisdiction to entertain the petition because the petitioner failed to raise a legally cognizable claim. The trial court concluded that it had jurisdiction to adjudicate the petition, and that the petitioner had “a justifiable expectation of earning good time credits based on the plain reading of [General Statutes § 18-7a (c)].” The trial court, however, granted the motion to quash, finding that the respondent provided the petitioner with constitutionally sufficient procedures before precluding him from earning good time credits.

I

We first address whether the trial court had subject matter jurisdiction to adjudicate the merits of the petitioner’s habeas petition. A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. Vincenzo v. Warden, 26 Conn. App. 132, 137, 599 A.2d 31 (1991). Subject matter jurisdiction for adjudicating habeas petitions is conferred on the Superior Court by General Statutes § 52-466, which gives it the authority to hear those petitions that allege illegal confinement or deprivation of liberty.

The petitioner argues that because he is precluded from earning good time credits as a consequence of his safety threat classification, his term of confinement has been effectively lengthened. In his habeas corpus application, the petitioner alleged that the prospective denial of good time credits will result in his illegal confinement. This allegation is sufficient to invoke the subject matter jurisdiction of the trial court.

II

A court may entertain only those habeas petitions that address an illegal confinement or deprivation of liberty. General Statutes § 52-466 (a); Vincenzo v. Warden, supra, 26 Conn. App. 137. The proper vehicle for attacking the legal sufficiency of a petition for a writ of habeas coxpus is a motion to quash. Practice Book § 532; see also Santiago v. Commissioner of Correction, 39 Conn. App. 674, 678, 667 A.2d 304 (1995). In considering a motion to quash a habeas coipus petition, the allegations made in the petition are deemed admitted and the court does not look to facts outside those alleged in the petition. Id. We must therefore determine whether the petitioner has alleged a liberty interest in good time credits he has not yet earned so as to raise a legally cognizable claim in his petition.

The petitioner argues that, as a result of his custodial classification, he has been prohibited from accumulating good time credits that would automatically accelerate his release date. This argument, however, succeeds only if the awarding of good time in Connecticut is mandatory. We conclude that it is not.

Under the present statutory scheme, good time may be awarded in the amount of ten days per month to those inmates who warrant such diminution of sentence by good conduct and obedience to the rules. See General Statutes § 18-7a (c). Any act of misconduct or refusal to obey the established rules subjects the inmate to the loss of those credits already earned. General Statutes § 18-7a (c). Our Supreme Court has concluded that § 18-7a (c) is plain and unambiguous. Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988). According to the plain language of § 18-7a (c), the commissioner may award good time credits at his discretion. Thus, because § 18-7a (c) does not require the commissioner to award good time credits, that section cannot create a liberty interest on which the petitioner may predicate habeas corpus relief.

The petitioner, however, contends that § 18-7a (c) gives inmates a right to accrue good time credits automatically and that, because such good time cannot be prospectively forfeited, he has a liberty interest in those good time credits that he has not yet earned. Relying on Nichols v. Warren, supra, 209 Conn. 196, the petitioner correctly states that Nichols prohibits the forfeiture of good time credits that have not yet been earned.

Nichols, however, does not control this case. It does not interpret § 18-7a (c) to require that all inmates be given the privilege of earning good time credits. Instead, the Nichols holding applies only to those inmates who have become eligible to earn statutory good time credits. In such a case, Nichols mandates that those credits must not be denied prospectively. Id., 196-98. Nichols does not conclude that § 18-7a (c) compels the automatic award of good time credits, but rather concludes that once an inmate has become eligible to earn statutory credits, such credits cannot be surrendered before they are earned. We therefore conclude that § 18-7a (c) does not give the petitioner a liberty interest in good time credits he has not yet earned.

The petitioner similarly does not have a liberty interest in unearned good time credits because his release date is not specifically predicated on the calculation of those credits as they relate to his existing sentence. “Any of a host of administrative or disciplinary decisions made by prison authorities might somehow affect the timing of a prisoner’s release, but such effects have never been held to confer a constitutionally protected liberty interest . . . .” Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). We conclude that the decision to deny inmates classified as safety threats the opportunity to earn the good time credits specified in § 18-7a (c) does not rise to the level of a constitutionally protected liberty interest. Id.; see also Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995). In this case, the petitioner’s release date is not contingent on his future good time credits. Although the opportunity to earn statutory good time credits may have resulted in accelerating the petitioner’s release date, future failure to obey established prison rules may result in a forfeiture of any or all of these credits. Therefore, the possibility that the petitioner’s unearned good time credits would affect his ultimate release date “is simply too attenuated” to create a liberty interest. Luken v. Scott, supra, 193.

Because the petitioner has no liberty interest in unearned statutory good time credits, he has failed to raise a legally cognizable claim upon which relief may be granted.

Ill

The petitioner finally claims that directive 6.14 violates the ex post facto clause of article first, § 10, of the United States constitution and also constitutes a violation of the Connecticut constitution. This claim has no merit.

We have long held that “[a]n act ex post facto relates to crimes only; it is emphatically the making of an innocent action criminal. . . .” (Emphasis in original.) Bridgeport v. Hubbell, 5 Conn. 237, 240 (1824); see also Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). There is nothing in directive 6.14 that attempts to criminalize an otherwise lawful act. See DiNapoli v. Northeast Regional Parole Commission, 764 F.2d 143, 146 (2d Cir.), cert. denied, 474 U.S. 1020, 106 S. Ct. 568, 88 L. Ed. 2d 553 (1985) (parole guidelines are not laws within ex post facto prohibition). The ex post facto clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with prison administration, safety and efficiency. James v. Murray, 962 F.2d 302, 309 (4th Cir. 1992).

The Connecticut constitution does not contain an ex post facto clause. The petitioner, however, attempts to construct an ex post facto provision by reading article first, §§ 9 and 13, together. Article first, § 9, of the Connecticut constitution provides that no person shall be arrested, detained or punished except in cases clearly warranted by law. Article first, § 13, of the Connecticut constitution provides that “[n]o person shall be attainted of treason or felony, by the legislature.” We are not persuaded that these two provisions, when read in conjunction with one another, create an ex post facto prohibition.

Because the petitioner has failed to raise a cognizable claim on which to predicate relief, we conclude that the trial court properly granted the respondent’s motion to quash.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any potion of such reduction by the commissioner or his designee.”

       General Statutes § 52-466 provides in pertinent part: “(a) An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty . . .

       We recognize that some decisions have referred to a petitioner’s failure to raise a cognizable claim as the court’s subject matter jurisdiction to hear the case. More accurately, the issue before us is not whether the trial court had subject matter jurisdiction to hear the petition, but whether the petitioner raised a legally cognizable claim.

       Although the trial court found that § 18-7a (c) confers a liberty interest to the petitioner, it granted the respondent’s motion to quash on the grounds that the petitioner had received adequate due process before precluding him from earning good time credits. Thus, because the trial court ultimately reached the correct result, we affirm its decision on alternate grounds. State v. Lynch, 21 Conn. App. 386, 393, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990).

       Article first, § 10, of the United States constitution provides in pertinent part: “No state shall . . . pass any ... ex post facto Law . . . .”

       For a contrary view, the petitioner relies on Geraghty v. United States Parole Commission, 579 F.2d 238, 266 (3d Cir. 1978). The reasoning of Geraghty, however, “ ‘has been expressly or implicitly rejected by every other Circuit Court of Appeals that has assessed the ex post facto effect of the U.S. Parole Commission’s guidelines DiNapoli v. Northeast Regional Parole Commission, 764 F.2d 143, 147 (2d Cir.), cert. denied, 474 U.S. 1020, 106 S. Ct. 568, 88 L. Ed. 2d 55 (1985), quoting Paschal v. Wainwright, 738 F.2d 1173, 1181 (11th Cir. 1984). Accordingly, we decline to follow Geraghty’s reasoning.