author: Spear, J.

text:
    Farmers and Mechanics Savings Bank v. Durham Realty, Inc., et al.
    (11863)
    Foti, Freedman and Spear, Js.
    Argued January 7
    decision released April 26, 1994

      Peter W. Benner, with whom were Keith E. Krusz and, on the brief, Gregory T. DAuria, for the appellant (plaintiff).

      Edward G. Lang, for the appellees (defendants).
   Spear, J.

This is an appeal by the foreclosing plaintiff, Farmers and Mechanics Savings Bank, from the denial of its motion for a deficiency judgment. The plaintiff claims that the trial court was required to determine the market value of the subject property and to find a resulting deficiency where there was no evidence of a value in excess of the debt and the undisputed evidence showed a value far less than the debt. The defendants deny that there was such undisputed evidence and claim that General Statutes § 49-14 does not place an affirmative duty on the trial court to determine the fair market value of real property in a deficiency judgment proceeding when the court determines that the parties presented no credible evidence to establish that value.

We affirm the judgment of the trial court. Our review of the record and the transcript of the hearing shows that there was no evidence presented as to the value of the subject property as of the date title vested in the plaintiff. Although this point was not raised by the parties, it was addressed in the trial court’s order denying the motion for a deficiency judgment and it is dispositive of this appeal.

The following facts are relevant to our review. On December 6, 1988, the defendants, Durham Realty, Inc., and Norbert Pomeranz, executed a promissory note in the principal sum of $2,070,000 payable to the plaintiff. To secure the note, Durham Realty, Inc., executed a mortgage to the plaintiff on a parcel of land in East Haddam. The plaintiff brought a foreclosure action by a complaint dated December 12,1991, based on the defendants’ failure to pay the note in accordance with its terms. The plaintiff filed a motion for judgment of strict foreclosure on June 19,1992. Attached to the motion was an appraisal report and an affidavit of the appraiser, stating that he had valued the property at $500,000 as of March 20,1992. On July 6,1992, the trial court rendered a judgment of strict foreclosure. The first law day was set for July 29, 1992.

Neither defendant redeemed and, consequently, the title to the property vested absolutely in the plaintiff on July 31,1992. On August 25,1992, the plaintiff filed a motion for a deficiency judgment, pursuant to General Statutes § 49-14 (a). After a hearing on September 14, 1992, the court denied the motion, stating in its order of September 15, 1992: “The court having heard evidence offered by the parties concerning the subject motion for deficiency judgment hereby denies said motion. The movant has failed to satisfy its burden of proof by establishing by a fair preponderance of the evidence the reasonable market value of the premises as of the date of the transfer of title to it. Costs are not allowed.” (Emphasis added.)

The court later filed an articulation in which it explained why the appraisal evidence was not credible enough to establish value. Although the plaintiffs expert witness testified as to his opinion of the value of the subject property, he did not tie his opinion to any particular date. The defendants’ expert witness testified as to the value of the property in 1989 and October, 1991, but did not testify to the value of the property on July 31,1992, the date title vested in the plaintiff.

“The rule of law in Connecticut since 1833, when Connecticut first enacted a deficiency judgment statute, is that the value of the property foreclosed shall be the actual value thereof as of the date when title vested in the plaintiff under the foreclosure decree.” City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 33, 467 A.2d 929 (1983); see also Di Diego v. Zarro, 19 Conn. App. 291, 294, 562 A.2d 555 (1989). “The value of the premises on the date that title becomes vested in the mortgagee determines whether the mortgagee is entitled to a deficiency judgment.” Eichman v. J & J Building Co., 216 Conn. 443, 449, 582 A.2d 182 (1990), quoting Di Diego v. Zarro, supra, 294. The plaintiff bears the burden of presenting sufficient evidence for the trial court to determine the value of the property on that date. Eichman v. J & J Building Co., supra, 451. It failed to do so here.

In its order denying the plaintiffs motion for a deficiency judgment, the trial court stated that the plaintiff had failed to establish the fair market value of the property as of the date title vested in the plaintiff. In its articulation, the trial court again referred to the plaintiffs failure to establish the value of the property as of the date of transfer of title to it. We conclude that the trial court’s order and articulation address the plaintiff’s failure to prove value as of the date title vested in a sufficient manner for us to affirm the judgment on that ground.

Even if we were to conclude from reading the trial court’s articulation that the court based its decision to deny the plaintiff's motion for a deficiency judgment solely on the lack of credible evidence, we are “authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . .” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 693, 617 A.2d 921 (1992).

Because we affirm the judgment of the trial court on the ground that the plaintiff failed to prove value as of the date title vested, we need not reach the issues involving the credibility of the expert witnesses who testified as to value. Nor do we have to decide the plaintiffs claim that the court was required to establish a value for the property and a resulting deficiency because there was no evidence of a value higher than the debt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       The trial court stated: “The court articulates its order of September 15, 1992, only to the limited extent of unequivocally expounding the bases for its conclusion that the movant had failed to satisfy its burden of proof of establishing by a fair preponderance of the evidence the reasonable market value of the premises as of the date of transfer of title to it. . . . The appraisal testimony offered to the court on behalf of the plaintiff was of no value to the court in ascertaining market value. He was unable to explain the bases for the use of various components that allegedly went into the computation of his opinion as to value. . . . Further, the testimony offered by the witness produced on behalf of the defendant was neither credible enough nor relevant enough for the court to place any reliance thereon in utilizing it to ascertain the fair market value at the appropriate time.” (Emphasis added.)

       At the hearing on the motion for a deficiency judgment, the plaintiff’s counsel unsuccessfully offered as evidence the appraisal report that was submitted with the motion for strict foreclosure. The trial court sustained an objection to that report. At the conclusion of the appraiser’s direct examination, the plaintiff’s counsel, referring to the appraisal report, asked, “is your testimony based on this exhibit?” The witness answered, “Yes.” “It is irrelevant to the determination of a deficiency under [General Statutes] § 49-14 that the court had placed a prior value on the premises for purposes of the earlier foreclosure proceeding.” Di Diego v. Zarro, 19 Conn. App. 291, 295, 562 A.2d 555 (1989).

       See footnote 2.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Shippan Point Association, Inc., et al. v. Charles McManus et al.
    (12338)
    O’Connell, Foti, Laveey, Heiman, Freedman, Schaller and Spear, Js.
    Argued January 5
    decision released April 26, 1994

      Robert W. Green, for the appellants (plaintiffs).

      Leo Gold, for the appellees (defendants).
   O’Connell, J.

The plaintiffs appeal from the denial of their request for an injunction in their action to enforce a covenant prohibiting the construction of more than one dwelling on the defendants’ property. The defendants pleaded special defenses of changed circumstances, the statute of limitations, laches and comparative hardship. The plaintiffs claim that the trial court improperly (1) concluded that the history of their property did not establish a basis for an injunction and (2) refused to enforce a restrictive covenant under the retained land theory. We affirm the judgment of the trial court.

The case was referred to an attorney trial referee who found facts on which he concluded that each of the special defenses had been established. The trial court did not challenge any of the facts found by the referee but held that the law pertaining to those facts required conclusions opposite to those drawn by the referee. Its opinion notwithstanding, the trial court then proceeded to reach the same eventual result as the referee (i.e., that an injunction should not issue) but did so on the ground that the retained land theory did not apply to nonadjacent parcels. This appeal followed. The defendants filed a “cross appeal” claiming that the trial court improperly failed to rule that they should have prevailed on one or more of their special defenses.

The properties that are the subject of this action are located in the Shippan Point area of Stamford. The plaintiffs’ and the defendants’ parcels were both originally part of approximately twenty-five lots formed in 1909 by a dredging and landfill operation conducted by the owners, Shippan Point Land Company (SPLC). After building private roads on this newly created property, SPLC began transferring title to individual lots in 1911. All of the deeds were substantially similar and contained restrictive convenants limiting each parcel to “a dwelling house arranged for and occupied by a single family.” The defendants’ property was originally conveyed by SPLC to Ella W. Bohannon in 1912. The Bohannon lot was combined in 1913 with an adjacent lot and a thirty foot strip of land not suitable for a building. The adjacent lot had been previously conveyed by SPLC to Homer S. Cummings. In 1914, these three unimproved parcels totaling three acres were sold as a single lot to Emilie Stein, who erected a house on the former Bohannon lot around 1915. Numerous mesne conveyances of the Stein property took place between 1946 and 1979 and each made the premises subject to the restrictions in the deeds to Cummings, Bohannon and Stein.

In 1981, the planning board of the city of Stamford approved an application to subdivide the single tract created by Stein. On July 1,1991, Spring Realty Corporation, as successor in title to Stein, conveyed the northernmost lot of the subdivision to the defendants by a deed containing the restrictive convenants recited above. Title to the two remaining lots, both of which now contain single-family houses, were also conveyed to their respective owners in 1991. The defendants intend to build a single-family dwelling on their lot either by destroying the existing structure on the property or by seeking a variance permitting the building of another house on the rear of the lot. The plaintiffs seek to prevent the defendants from building their house on the lot because they claim the deed restriction permits the presence of only two houses on what was originally two lots. The plaintiffs’ property is not adjacent to the defendants’ property but is part of the land originally retained by SPLC during its original conveyances.

In Contegni v. Payne, 18 Conn. App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989), this court considered the same area of Shippan Point and the same restrictive covenant that is at issue in this case. Contegni recognized three classes of restrictive covenants: “(1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains.” Id., 51.

The Contegni court held that the covenant could not be enforced under the uniform plan of development theory because the evidence did not sufficiently establish the boundaries of the area that was claimed to be affected by the plan of development. Id., 61. In the present case, the parties accepted Contegni as ruling out enforcement of the restrictive covenants under the uniform plan of development theory. The plaintiffs rely instead on the third class of restrictions, i.e., those imposed by the grantee for the benefit of adjoining land that the grantor retained. The Contegni court enforced the covenant in that case under this theory, which is commonly referred to as the retained land theory.

The defendants argue that the retained land theory does not apply when the retained and granted parcels are not adjacent, which is the situation here. The parcels in Contegni were adjacent. In the present case, the trial court declined to enforce the covenant because it felt that Contegni required that the two parcels be adjacent as a condition precedent to employing the retained land theory.

We do not reach the “adjacent land” issue, however, because we conclude that enforcement is barred by one of the special defenses. The defendants affirmatively pleaded that the restriction sought to be enforced was no longer effective due to changed circumstances. The attorney trial referee found that twelve of the twenty-five original lots had been implicated either in subdivision or in having more than two residential buildings appearing on individual lots. On the basis of these findings, the referee concluded that there had been a substantial change in circumstances. The trial court rejected the referee’s conclusions and limited its consideration to changes that had taken place after the Contegni decision in 1988. The defendants argue that the trial court improperly limited its analysis to only those changes occurring in the area subsequent to Contegni.

“Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the referee.” Bernard v. Gershman, 18 Conn. App. 652, 656, 559 A.2d 1171 (1989); Practice Book § 4061. Here, we do not agree with the trial court’s legal conclusion that analysis of the defendants’ special defense of changed circumstances was limited to changes in the area occurring after the Contegni decision. In fact, our decision in Contegni instructs otherwise.

In its analysis of whether SPLC intended to create a uniform plan of development, the Contegni court looked to four factors. Contegni v. Payne, supra, 18 Conn. App. 54-55. One factor was whether the actual development of the claimed tract occurred in accordance with a uniform plan. In holding that the actual development of the area reflected an intent to establish a uniform plan, the court rejected the defendants’ attempt to show changes in the character of the neighborhood that had taken place long after the original conveyances. In a passage foreshadowing this case, the court stated that “[e]vents too distantly removed in time from the original SPLC conveyances to reflect SPLC’s intent one way or another are not relevant to [the issue of establishing a uniform plan], although they would bear on the equitable issue of enforceability of the covenants due to changed circumstances.” (Emphasis added.) Id., 55. Accordingly, we hold that any changes in the character of the Shippan Point area occurring subsequent to the original conveyances, and not just those since the Contegni decision, are relevant in determining changed circumstances.

We note that the trial court did not dispute any of the attorney trial referee’s factual findings regarding changed circumstances. The trial court’s reversal of the referee’s recommendation was the inevitable result of its conclusion that only those changes in the area since the Contegni decision were relevant. Because we conclude that the trial court improperly limited the scope of its analysis to post-Contegni changes, we must determine whether the factual basis of the trial referee’s decision to deny injunctive relief — changed circumstances — was supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts were clearly erroneous. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987); Fortier v. Newington Group, Inc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). In doing so, we recognize that “[wjhere evidence is in conflict, its probative force is for the trier of fact to determine.” Bernard v. Gershman, supra, 18 Conn. App. 656.

“The standard applicable to the defendants’ claim of change in circumstances . . . is that [wjhen presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable. . . . Change in circumstances, such as use of the benefited property for purposes other than those contemplated by the original covenant, may justify the withholding of equitable relief to enforce a covenant. . . . Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved.” (Citations omitted; internal quotation marks omitted.) Grady v. Schmitz, 16 Conn. App. 292, 301-302, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988).

Our review of the record discloses that the trial referee’s factual findings were supported by the evidence and were correct in law. In its report, the trial referee found that several lots within the original twenty-five lot area have been subdivided and now contain, in violation of the covenant, two houses. Moreover, the trial referee found that many of the properties in the area have carriage houses that have been rented out to tenants in violation of the restrictive covenant. On the basis of these findings, which are supported by the evidence, we conclude that because of substantial change in conditions the intent of the original covenant has now been completely frustrated and it would be inequitable to enforce it.

We reach our result for reasons different from those set forth by the trial court, but the practical effect is to affirm the trial court’s judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Shippan Point Association, Inc., a Connecticut non-stock corporation composed of property owners and residents of Shippan Point in Stamford, and Verna Green and Robert Green, property owners at Shippan Point. The Greens are also members of the Shippan Point Association, Inc. Two other plaintiffs, Allen Silverman and Eleanora Silverman, were dropped from the litigation for failure to appear for trial.

       The defendants are the owners of property at Shippan Point.

       Technically, this was not a cross appeal, but an argument setting forth alternate grounds for affirmance of the trial court’s decision and we will treat it as such. See Practice Book §§ 4013 (a) (1) and 4005.

       The Stamford planning board’s approval of a four lot subdivision of the property was followed by an appeal brought by several adjacent and nearby property owners. During this appeal, the property in question was sold to Faye Dunaway who agreed to reduce the subdivision from four to three lots in exchange for the withdrawal of the appeal.

       The existing structure on the defendants’ property is an outbuilding, which was constructed in conjunction with the single-family house built on the Stein property in 1915.

       The plaintiffs in this case were also plaintiffs in Contegni v. Payne, supra, 18 Conn. App. 47.


author: Lavery, J.

text:
    Clyde R. Tyler v. Ruth K. Schnabel et al.
    (12298)
    La very, Freedman and Spear, Js.

      Argued February 24
    decision released May 3, 1994

      Kathleen Eldergill, for the appellant (plaintiff).

      Scott M. Karsten, for the appellees (defendants).
   Lavery, J.

The plaintiff, Clyde R. Tyler, appeals from the trial court’s denial of his motion for a prejudgment remedy pursuant to General Statutes § 52-278d. On appeal, the plaintiff asserts that the trial court improperly denied his motion in light of its factual findings. We agree.

This appeal arises from the lengthy litigation between the plaintiff and the defendants, Ruth K. Schnabel and Philip Schnabel. On February 20, 1990, the plaintiff sued Philip for false imprisonment, intentional infliction of emotional distress, abuse of process and violations of 42 U.S.C. § 1983. On December 19,1991, the plaintiff obtained a judgment against Philip for $493,660.60. This court affirmed the judgment in August, 1993. Schnabel v. Tyler, 32 Conn. App. 704, 723B, 630 A.2d 1361, cert. granted, 227 Conn. 932, 632 A.2d 708 (1993).

On September 14,1992, the plaintiff sued the defendants alleging that a transfer of funds from Philip to his wife, Ruth, was a fraudulent conveyance. Pending trial, the plaintiff moved for a prejudgment remedy. The trial court denied the motion after a hearing.

In its memorandum of decision, the trial court found the following facts: Philip received $113,725 from the settlement of a lawsuit in November, 1990, at least eight months after the plaintiff filed suit. Philip transferred all of these funds to Ruth, and thereby rendered himself insolvent. In this transaction, Ruth was an “insider” under General Statutes § 52-552b (7). The trial court also found that this transfer was not a repayment of a debt.

The trial court applied the Uniform Fraudulent Transfer Act; General Statutes §§ 52-552a through 52-5521; to these facts and ruled that probable cause did not exist to sustain the plaintiffs claim that the transfer was fraudulent. The trial court applied General Statutes § 52-552Í (b), which controls creditors whose claims had matured at the time the suspect transfer occurred. The trial court concluded that (1) Ruth was an insider, (2) Philip was insolvent, and (3) a fact finder could conclude that Ruth knew of Philip’s insolvency when she accepted the transfer. See General Statutes § 52-552f (b). Nonetheless, the trial court stated that the plaintiff would have to prove fraud by clear and convincing evidence. Because the trial court could not find probable cause that the plaintiff would be able to prove fraud by that standard, it denied the prejudgment remedy.

Section 52-278d permits a court to grant a prejudgment remedy if “the plaintiff has shown probable cause to sustain the validity of his claim . . . .” Sellner v. Beechwood Construction Co., 176 Conn. 432, 434, 407 A.2d 1026 (1979). Prejudgment remedy proceedings do not address the merits of the action; they concern only “whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action.” Id., 435-36.

“In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs’ claim. . . . [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs’ claim by weighing probabilities.” (Citations omitted; internal quotation marks omitted.) Haxhi v. Moss, 25 Conn. App. 16, 18-19, 591 A.2d 1275 (1991); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975). Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action. One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn. App. 524, 525, 589 A.2d 892 (1991). “The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim.” Id.; Fischel v. TKPK, Ltd., 34 Conn. App. 22, 26, 640 A.2d 125 (1994).

“This court’s role in reviewing the trial court’s ruling on a prejudgment remedy motion is limited. ‘It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” [Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977)].’ ” Haxhi v. Moss, supra, 25 Conn. App. 19.

In reviewing the trial court’s determination, we must first consider what law applies. Pursuant to No. 91-297 of the 1991 Public Acts, Connecticut adopted the Uniform Fraudulent Transfer Act on October 1, 1991. Prior to that adoption, General Statutes § 52-552 governed fraudulent conveyances. Although repealed by Public Acts 1991, No. 91-297, General Statutes (Rev. to 1989) § 52-552 was in effect when Philip made the disputed transfer.

“[T]he applicable substantive law is that in effect at the time that the action accrues.” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 522, 562 A.2d 1100 (1989). “In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm. Cats v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986).” Id., 521. “The only exception to this rule is when the legislature enacts substantive legislation and unequivocally declares that the new legislation is to be given retroactive effect. State v. Lizotte, 200 Conn. 734, 740-41, 517 A.2d 610 (1986); Hunter v. Hunter, 177 Conn. 327, 331, 416 A.2d 1201 (1979). . . . [Tjhere is no indication that the legislature intended the act to apply to actions that accrued before its effective date.” (Citations omitted.) Champagne v. Raybestos-Manhattan, Inc., supra, 522. Therefore, this action must be considered under General Statutes (Rev. to 1989) § 52-552.

Under that statute, a party seeking to set aside a conveyance as fraudulent must prove “either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990); Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984); Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983). The party seeking to set aside the conveyance need not satisfy both alternatives. Tyers v. Coma, supra, 11; Bizzoco v. Chinitz, supra, 312.

In this case, Philip claimed that the transfer was a repayment of a debt to Ruth. Because the trial court found that the transfer was not a repayment, the transfer was made without substantial consideration. Further, the trial court found that the transfer rendered Philip insolvent. If the plaintiff proves these facts at the trial on the merits, he will succeed in his action. By finding these facts at the probable cause hearing, the trial court found the existence of facts essential under General Statutes (Rev. to 1989) § 52-552 for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to advance the action. See One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., supra, 24 Conn. App. 525. Therefore, our review of the facts found by the trial court leads us to conclude that the trial court’s determination was not reasonable.

At the trial on the merits, the plaintiff will not be required to prove actual fraud. Tyers v. Coma, supra, 214 Conn. 11. Thus, the trial court improperly employed a more stringent standard at the probable cause hearing than would be required at trial. The trial court’s use of an improperly stringent standard was clearly erroneous; the trial court’s determination on probable cause was unreasonable in light of its own factual findings. Therefore, we must reverse.

Ordinarily, we would remand this case to the trial court for an evidentiary hearing to determine whether probable cause exists entitling the plaintiff to prejudgment relief. People’s Bank v. Bilmore Building Corp., 28 Conn. App. 809, 823-24, 614 A.2d 456 (1992). Where probable cause for an attachment obviously exists, however, we need not remand for a second determination. See id., 824. In this case, the facts found by the trial court obviously demonstrate probable cause to sustain the plaintiff’s case.

The judgment of the trial court is reversed and the case is remanded for a hearing to determine the appropriate value and nature of the prejudgment remedy.

In this opinion the other judges concurred.

       General Statutes § 52-278d (a) provides in pertinent part: “If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted . . . .”

       The plaintiff also argues that the trial court improperly denied his motion because the facts found by the trial court established a resulting trust. We need not consider this issue in light of our conclusion on the plaintiff’s first claim.

       The plaintiff advanced these claims in a counterclaim to Philip’s defamation action against the plaintiff.

       The plaintiff prevailed on his counterclaim and on Philip’s claim.

       The plaintiff sought to attach property Ruth bought with the funds.

       General Statutes § 52-552b (7) provides: “ ‘Insider’ includes: (A) If the debtor is an individual, (i) a relative of the debtor . . . .” General Statutes § 52-552b (11) provides that “ ‘[relative’ means . . . a spouse . . . .”

       General Statutes § 52-552Í provides in pertinent part: “transfers fraudulent as to present creditors. . . . (b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.”


author: Foti, J.

text:
    State of Connecticut v. Lonnie Walton
    (10492)
    Foti, Heiman and Cretella, Js.
    Argued November 29, 1993
    decision released May 3, 1994

      Estela I. Velez, certified legal intern, with whom were Todd D. Fernow, and, on the brief, Michael Taylor, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and attempted assault in the first degree in violation of General Statutes §§ 53a-8, 53a-49 and 53a-59 (a) (l). On appeal, the defendant asserts that (1) the charging document failed to set forth each essential element of the crimes charged, thereby depriving the court of jurisdiction, (2) there was insufficient evidence to sustain the convictions, and (3) the trial court improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of June 2, 1990, the defendant and a second male approached the victim, Angel Perez, as he was getting out of his automobile in Bridgeport. The second male pointed a gun at Perez and demanded his car key. When Perez refused, he was told by the defendant to “give it to him or we will shoot you.” Perez relinquished his car key and was told to sign over the title to the car or he would be shot. Perez agreed to do as commanded if they would allow him to remove some cans that he had collected for deposit money and stored in plastic bags in the car. While doing so, Perez pulled out a metal rod and hit the second male in the face several times. Perez then fled and was shot at by the second male. The defendant and the second male fled.

The police arrived and began a search of the area. The two assailants were observed walking together a short distance away and an officer ordered them to stop. The second male pulled a handgun from his waistband, handed it to the defendant, and fled. The defendant was seized. Shortly thereafter, Perez identified the defendant as one of the two men who had robbed him.

I

The defendant first claims that the information under which he was tried and convicted failed to charge him with all the essential elements of the two offenses. On April 10, 1991, the state filed a substitute long form information replacing an earlier long form information and the original short form information. At no time had the defendant requested either that a bill of particulars or a long form information be filed.

The defendant claims that the first count of the information failed to commit the state to proving that a larceny occurred by the use or threatened use of force. As to the second count, the defendant claims the information failed to commit the state to proving that the defendant possessed the mental state required for the commission of aiding in attempted assault. The defendant argues that because the information failed to charge all the essential elements of the crimes, the trial court lacked subject matter jurisdiction and should have sua sponte set aside the convictions and dismissed the offenses. We do not agree.

The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee that a criminal defendant has the right to be informed of the nature and the cause of the charge or charges brought against him with sufficient precision to enable him to meet them at trial. State v. Kyles, 221 Conn. 643, 652, 607 A.2d 355 (1992). If the information was sufficient to allow the defendant to prepare his defense, to avoid prejudicial surprise, and to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, then it has fulfilled its constitutional purpose. State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

In Connecticut, “ ‘it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.’ . . .” (Citations omitted.) State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984), quoting State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).

“When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. . . . [A] conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 250, 585 A.2d 677 (1991).

The original short form information set forth the crimes with which the defendant was charged by name and statutory references. The information was sufficient, therefore, to invoke the jurisdiction of the court. State v. Crosswell, 223 Conn. 243, 267, 612 A.2d 1174 (1992); see also State v. Ruiz, supra, 171 Conn. 270. The defendant concedes that the short form information originally filed put the defendant “on notice that he was being charged with all statutory alternative theories available for each offense.” The defendant argues, however, that by subsequently filing a long form information the court was deprived of jurisdiction. There is nothing in the record that would bring us to conclude that the court lost its jurisdiction by the filing of a substitute long form information. There was no jurisdictional defect.

Further, the substitute long form information did not fail to charge an essential element of the crimes. In both counts of the information not only was the statutory name of the offense provided, but also the place, the date, the time, the general nature of the acts, and the name of the victim. The information was, at most, imprecisely drafted. It did not completely omit to charge an essential element of the offenses charged. State v. McMurray, supra, 217 Conn. 252-53.

II

The defendant next contends that there was insufficient evidence to sustain either conviction. He contends that the state, by filing the substitute long form information, committed itself to proving its case in the manner described in the information. The defendant argues that because he was charged as a principal on the robbery count, the state must prove that he “stole” property from the victim in that he “physically seized, held, grasped, clutched, scratched or otherwise touched the victim’s property unlawfully.” The defendant claims that the absence of such proof requires a judgment of acquittal on the charge of robbery in the first degree. He also alleges that the state failed to prove that he engaged in any conduct, intentional or otherwise that in fact aided the second male’s act of attempted assault. He argues that the state did not prove the actus reus and, therefore, the second count must also be dismissed.

When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we “ ‘determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.’ ” State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151 cert. denied, 225 Conn 915, 623 A.2d 1025 (1993); State v. Salz, supra, 31. “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Salz, supra, 31. “The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

The trial court instructed the jury on accessorial liability. Those instructions were incorporated into the charge on robbery in the first degree. The defendant did not object to the substance of the accessory instruction as given by the court, but only to the application of the instruction to the robbery count because he claimed the state was limited by its information charging him as a principal. There was no exception taken to the accessory instruction as given on the assault charge.

“ ‘Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.’ ” State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991), quoting State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). There is no crime in this state of “being an accessory,” but rather the accessory statute, General Statutes § 53a-8, merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Gamble, 27 Conn. App. 1, 9, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). “[TJhere is no practical significance in being labeled as an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.” In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987). A defendant, charged with an offense, is on notice that he may be convicted as an accessory to that offense. State v. Steve, 208 Conn. 38, 43-44, 544 A.2d 1179 (1988); State v. Hopkins, 25 Conn. App. 565, 569, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991). The state was not limited to proving that the defendant committed robbery as a principal.

The defendant also asserts, as to both crimes, that the state failed to prove the necessary elements of accessorial liability — that he had both the intent to aid the principal and the intent to commit the offense with which the principal was charged. Further, he contends that there was no showing that he actually engaged in some conduct that did in fact aid the principal.

“To act as an accessory pursuant to § 53a-8, one must act ‘with the mental state required for the commission of the offense . . . . ’ The mental state required to commit robbery in the first degree is the intent to commit larceny and to do so by the use of force or the threatened use of immediate force for the purpose of: (1) preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct that aids in the commission of the larceny. General Statutes § 53a-133. Moreover, for conduct to be intentional, it must be one’s conscious objective to cause the result or to engage in such conduct. General Statutes § 53a-3 (11).” State v. Avila, 223 Conn. 595, 603-604, 613 A.2d 731 (1992).

“In order to convict the defendant as an accessory to attempted assault, the state had to prove that the defendant solicited, requested, commanded, importuned or intentionally aided the principal to engage in conduct constituting an offense and that the defendant acted with the intent to commit the offense. General Statutes § 53a-8 .... The crime of attempted assault requires proof of intent to cause serious physical injury. General Statutes § 53a-59 (a) (1). Intent can be inferred from the defendant’s verbal or physical conduct and the surrounding circumstances.” (Citations omitted.) State v. Russell, 29 Conn. App. 59, 64-65, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992).

Our review of the record shows that the evidence presented at trial and the inferences that reasonably could be drawn from that evidence were sufficient to have allowed the jury reasonably to conclude that the cumulative effect established the defendant’s guilt of both of the charged crimes beyond a reasonable doubt. The defendant’s actions reasonably could have led the jury to disbelieve his contention that he was coerced by the second male into being present at the scene and was only an inactive participant. The defendant accompanied the second male, who had a gun and who demanded the victim’s car key. The defendant told the victim, “Give it to him or we will shoot you.” (Emphasis added.) Both the defendant and the second male blocked the victim, preventing his escape. The defendant verbally assisted in the search for the title to the vehicle by instructing the second male to look in the glove compartment. When the two perpetrators fled, the defendant said to the second male, “Come on let’s go, let’s go,” and then they left the scene together.

“The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). It is not our function to determine if the jury was correct in its evaluation of the various witnesses. State v. Robinson, 213 Conn. 243, 256-57, 567 A.2d 1173 (1989). The evidence was sufficient to convict the defendant.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury. The defendant claims that the trial cburt improperly expanded the charge to include accessorial liability as a basis for the robbery conviction. The defendant alleges that the state affirmatively charged him in the substitute information as a principal and that he was entitled to rely on being charged as a principal. He argues that because the court did not instruct in substantial conformity with that allegation, the instructions were improper, and, therefore, he is entitled to a new trial on the robbery charge.

As discussed previously, the defendant, having been charged with one crime, as principal, was on notice that he may be convicted as an accessory to that crime. Since the evidence in the state’s case-in-chief was sufficient to prove that the defendant had acted as an accomplice, and absent a request for a bill of particulars, we conclude that the court’s instructions concerning accessorial liability were proper.

The defendant relies heavily on State v. Steve, supra, 208 Conn. 38, for his claim that the trial court improperly expanded the robbery charge. Steve is distinguishable. In Steve there was a bill of particulars that limited the state “ ‘to proving that the defendant ha[d] committed the offense in substantially the manner described.’ ” Id., 44. In addition, as the court noted that “[i]t is significant that the state presented no evidence in its case-in-chief suggesting that the defendant had acted as an accomplice.” Id., 46. In the present case, no bill of particulars was ever requested, and the state’s case-in-chief presented substantial evidence demonstrating that the defendant’s actions were those of an accomplice.

The defendant also alleges that the trial court’s instructions misled the jury and that there was a reasonable possibility that the defendant was convicted without proof beyond a reasonable doubt of each essential element of the crimes charged. The court fully instructed the jury on the elements of larceny, the elements of assault in the first degree, and the specific intent necessary to find the defendant guilty under theories of accessorial liability.

As we have previously noted, the defendant did not object to the substance of the accessory instruction as given by the court. He objected only to the application of that charge to the robbery count.

“When reviewing the court’s instruction, our role is to determine whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rule of law. ... If injustice was done, [t]he defendant is entitled to a new trial in such circumstances . . . where he can show that prejudice resulted from the court’s actions.” (Citations omitted; internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 104-105, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993). We must view the overall charge and not judge any portion in artificial isolation. State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988); State v. Kwaak, 21 Conn. App. 138, 160-61, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Our review of the charge and the supplemental instruction in its entirety clearly establishes that it is not reasonably possible that the jury was misled by the challenged instruction. The trial court properly explained the element of intent required to find the defendant an accessory, as well as the underlying intent necessary to establish the specific charges of robbery and attempted assault.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-8 provides in pertinent part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be . . . .”

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument
      The defendant was found not guilty of carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b).

       The substitute long form information dated April 10,1991, charged in pertinent part as follows:
      “[T]hat at the City of Bridgeport, Fairfield County, on the 2nd day of June 1990, at or about 6:30 a.m. outside 202 Maplewood Avenue, Bridgeport, the said LONNIE WALTON stole certain property from one ANGEL A. PEREZ, to wit: personal property, and in the course of the commission of the crime he or another participant was armed with a deadly weapon, to wit: a pistol, in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes.
      “AND SAID STATE’S ATTORNEY FURTHER ACCUSES the said LONNIE WALTON with the crime of ATTEMPTED ASSAULT IN THE FIRST DEGREE and charges that at the City of Bridgeport, Fairfield County, on the 2nd day of June, 1990, at or about 6:30 a.m. outside 202 Maplewood Avenue, Bridgeport, the said LONNIE WALTON did intentionally aid John Doe, while the latter, with intent to cause serious physical injury to ANGEL A. PEREZ, did attempt to cause serious physical injury to the said ANGEL A. PEREZ, by means of a deadly weapon, to wit: a pistol, in violation of Section 53a-8, Section 53a-49 and Section 53a-59 (a) (1) of the Connecticut General Statutes.”

       It was represented at oral argument that it is a policy of the state’s attorney for the judicial district of Fairfield to file a long form information in all matters, even absent a request.

       Although raised for the first time on appeal, “[ojnce the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented.’ Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966).” Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

       The defendant’s claim must also fail because he has not shown prejudice. In reviewing the denial by the trial court of a motion for a bill of particulars, our Supreme Court stated: “A ‘defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. . . .’’’(Citations omitted.) State v. Spigarolo, supra, 210 Conn. 382; see also State v. Kyles, supra, 221 Conn. 653.
      Here, the defendant did not request a bill of particulars or object to the substitute information. “If the defendant was not satisfied with the [information] as filed, he could have asked for a further bill [of particulars] and an amended or substitute information. . . . The defendant has not, as he must, demonstrated that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the state’s pleadings. . . .” (Citations omitted.) State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983).

       See footnote 2.

       Because the defendant’s conviction trader either theory of liability is sufficient to bar reprosecution, the defendant must demonstrate that the court’s instructions to the jury were deficient in some manner so as to cause him prejudicial surprise or to affect detrimentally the presentation of his defense. State v. Marra, 222 Conn. 506, 528, 610 A.2d 1113 (1992), citing State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). The defendant has made no showing that he was unfairly surprised by the trial court’s instruction. Evidence supporting the theoiy of accessorial liability was introduced by the state without objection from the defendant. The defendant has not demonstrated that he was burdened in the presentation of his defense.

       The court in Steve itself noted the significance of the bill of particulars as a distinguishing element of the case. State v. Steve, supra, 208 Conn. 45 n.4.

       In addition, in Steve, the bill of particulars charged that the defendant alone committed the acts claimed to comprise the robbery and the assault. In the present matter, the charging document clearly charged that the crime was committed while “he or another participant was armed with a deadly weapon.” (Emphasis added.)

       The court instructed as follows: “Now to summarize as to the crime of larceny. Although he’s not being charged with larceny, larceny must be proven to have been involved to justify a finding of guilty of robbery.
      “But to summarize then, in order for you to be satisifed that the defendant or a participant in the actions committed the larceny, you must be satisfied beyond a reasonable doubt that Mr. Walton or the participant had the intention to deprive another of property or to appropriate it to himself or to someone else — that they were acting with that intent, [and] that while acting with that intent they wrongfully took, obtained or withheld property from the owner.” (Emphasis added.)
      The court also instructed on the assault count: “Now, a person is guilty of assault in the first degree when, first with intent to cause serious physical injury to another person, he causes such injury to such person by means of a deadly weapon.
      “Actual physical injury must be inflicted to constitute an assault. A criminal assault can never consist of mere words or threats or even such words or threats accompanied by the immediate ability to consummate and effectuate the threat.
      “In order for you to find the defendant guilty of this offense the State must prove beyond a reasonable doubt the following elements.
      "First, that the defendant intended to cause serious physical injury to another person by means of a deadly weapon, and second, that the defendant did so with specific intent to cause such injury to that person.
      “Putting that in terms of what we have, in the evidence we have in this case, the State would have to prove that Mr. Walton or [the second male] intended to cause serious physical injury to another person by means — to Mr. Perez — by means of a deadly weapon, to wit: the pistol.
      “And secondly, that the defendant or [the second male] did so with the specific intent to cause such injury to that person.” (Emphasis added.)
      In a supplemental instruction the court stated: “Now, we’re dealing with charges here that the — on the Robbery and on the Assault charge . . . where the defendant is being charged, in effect, as a participant in the commission of the crimes. And at times when I am using the term ‘defendant’ it often should be interchanged with the word ‘person’ because we’re not always — he’s not actually charged with having specifically done certain acts, but that he, in participation with another who may have committed those acts. The State believes it has presented evidence that would prove him to be as culpable as the person who actually committed the acts.
      “So, if I had at any time only utilized the phrase or the term ‘defendant’ when it could be interchanged with the word ‘person,’ you have to do that for me in your deliberations. And I think you understand that. And throughout all you have to keep in mind the law relating to participants in crime and the elements that were required for you to determine whether or not the State proved beyond a reasonable doubt that the defendant was, in fact, a participant in the actions of another person that may have — that may have constituted criminal behavior.”


author: Freedman, J.

text:
    Angel David Baez v. Commissioner of Correction
    (11719)
    Freedman, Schaller and Spear, Js.
    Argued February 15
    decision released May 3, 1994

      John W. Watson, assistant public defender, for the appellant (petitioner).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (respondent).
   Freedman, J.

The petitioner appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner asserts that the habeas court improperly found (1) that the petitioner was competent at the time of his guilty pleas and (2) that the failure of the petitioner’s trial counsel to investigate the petitioner’s mental condition did not constitute ineffective assistance of counsel. We reverse the judgment of the habeas court in part and remand the case for further proceedings.

The habeas court found the following facts. The petitioner, a Vietnam veteran, was charged with murder, several narcotics violations and criminal possession of a firearm. He was represented by Attorney John Robert Gulash on the murder charge. Attorney David Malloy represented the petitioner on the narcotics and the weapons charges. Because the murder charge was the most serious, Malloy permitted Gulash to act as lead counsel in the pretrial discussions.

On May 31, 1984, a court-ordered examination for competency was performed on the petitioner by a team of diagnosticians. The team rendered a unanimous opinion that the petitioner was competent to stand trial at that time because he was aware of courtroom proceedings and was able to assist in his own defense. On May 29, 1985, the petitioner pleaded guilty under the Alford doctrine to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a), and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217. The petitioner was sentenced, under a plea agreement, to an effective term of twenty-five years.

After the petitioner had been in the corrections system for a period of time, he was transferred to a New Hampshire prison. At the New Hampshire prison, he attended group therapy sessions designed specifically for Vietnam veterans and was introduced to other inmates who were also Vietnam veterans. The petitioner identified with many of the symptomatologies of the other prisoners who had served in Vietnam. During this time, he learned that he suffered from an illness known as Post Traumatic Stress Disorder (PTSD). He acquired information from a group known as Vietnam Veterans of America. The petitioner also learned that some individuals suffering from PTSD had, on the basis of their illness, successfully defended criminal charges.

On February 1,1990, the petitioner filed an amended petition for a writ of habeas corpus. On November 28, 1990, and October 2, 1991, the petitioner underwent court-ordered examinations to determine his competency. On both occasions, the petitioner was found capable of understanding the proceedings and of meaningfully assisting his counsel. After a hearing, the habeas court denied the petition.

I

The petitioner first claims that the habeas court improperly found that he was competent at the time he pleaded guilty. He asserts that because he was then suffering from PTSD, he was not competent within the meaning of General Statutes § 54-56d (a) to enter such pleas. He, therefore, contends that his pleas were not voluntary and intelligent and, accordingly, the trial court’s acceptance of them violated the due process guarantees of the fourteenth amendment of the constitution of the United States and article first, § 8, of the constitution of Connecticut. For the reasons set forth below we do not reach the merits of the petitioner’s claim.

The validity of a guilty plea can be challenged before sentencing pursuant to Practice Book § 720 and on direct appeal. Bowers v. Commissioner of Correction, 33 Conn. App. 449, 450-51, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994). Here, the petitioner failed to raise his claim regarding the validity of his guilty plea before sentencing or on direct appeal. It was raised for the first time before the habeas court. The appropriate standard for reviewability of a constitutional claim not raised before sentencing or on direct appeal is the Wainwright “cause and prejudice” standard. Jackson v. Commissioner of Correction, 227 Conn. 124, 133-34, 136, 629 A.2d 413 (1993); Johnson v. Commissioner, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991); Bowers v. Commissioner of Correction, supra, 451. “The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” Daniels v. Warden, 28 Conn. App. 64, 71, 609 A.2d 1052, cert. denied, 224 Conn. 924, 614 A.2d 820 (1992). Here, in order for the petitioner to obtain habeas review of this claim, he must demonstrate (1) good cause for his failure to raise his claim before sentencing or on direct appeal and (2) that he was actually prejudiced by the alleged constitutional violation. The habeas court made no finding regarding whether the petitioner had met his burden of establishing cause and prejudice.

This court is permitted to review the record to determine whether any evidence of cause and prejudice was provided by the petitioner. Giannotti v. Warden, 26 Conn. App. 125, 128, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). “Where . . . there has been evidence presented on the issues of cause and prejudice and the habeas court does not make a finding on the record that the petitioner has either met or failed to meet his burden of establishing cause and prejudice, we will not review the inadequately preserved constitutional claim on the merits. Rather, we will remand the case to the habeas court for it to determine whether the petitioner has satisfied his burden of establishing cause and prejudice. See Watley v. Commissioner, 219 Conn. 231, 592 A.2d 911 (1991); Jackson v. Commissioner, 219 Conn. 215, 592 A.2d 910 (1991). As our Supreme Court noted in Johnson v. Commissioner, supra, [218 Conn.] 419, it is the duty of the habeas court to make such a determination.” Daniels v. Warden, supra, 28 Conn. App. 72.

Our review of the record reveals that the petitioner presented evidence to the habeas court regarding his failure to raise this issue before sentencing or on direct appeal and the alleged prejudice arising therefrom. We, therefore, reverse the judgment denying the habeas petition of this petitioner and remand the case to the habeas court for further proceedings to determine whether the petitioner satisfied his burden of establishing cause and prejudice.

II

The petitioner’s second and final claim is that the habeas court improperly found that the failure of his trial counsel to investigate his mental condition did not constitute ineffective assistance of counsel. We do not agree.

When determining whether there was a “violation of the petitioner’s right to effective assistance of counsel.. . this court is not bound by [the clearly erroneous] standard of review, because such a determination is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. Veal v. Warden, [28 Conn. App. 425, 428, 611 A.2d 911 (1992)]; Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). The question of whether the historical facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is subject to plenary review by this court unfettered by the clearly erroneous standard. Phillips v. Warden, supra [131]; Daniels v. Warden, [supra, 28 Conn. App. 68].” (Internal quotation marks omitted.) Siano v. Warden, 31 Conn. App. 94, 96, 623 A.2d 1035 (1993).

“The right to the effective assistance of counsel is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel. . . . This right is equally applicable whether defense counsel is court-appointed [as in the present case], or . . . privately-retained counsel. (Citations omitted.) State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). The right to counsel, however, is the right to effective assistance and not the right to perfect representation. Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992); Williams v. Bronson, 21 Conn. App. 260, 263, 573 A.2d 330 (1990).

“To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Summerville v. Warden, 29 Conn. App. 162, 171, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172 (1992). To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. Bunkley v. Commissioner of Correction, supra, [455], quoting Strickland v. Washington, [supra, 466 U.S. 687]. The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. Strickland v. Washington, supra, 687-88; Daniels v. Warden, supra, [28 Conn. App.] 69. We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Daniels v. Warden, supra, 69-70.

“To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. Bunkley v. Commissioner of Correction, supra, [222 Conn. 455] quoting Strickland v. Washington, supra, [466 U.S.] 687. The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Bunkley v. Commissioner of Correction, supra, 454. The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Summerville v. Warden, supra [29 Conn. App. 171].” (Internal quotation marks omitted.) Siano v. Warden, supra, 31 Conn. App. 96-98.

In Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the United States Supreme Court held “that the two-part Strickland v. Washington [supra, 466 U.S. 694] test applies to challenges to guilty pleas based on ineffective assistance of counsel.” “The second, or ‘prejudice,’ requirement . . . focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, supra, 59. ‘‘[Wjhere the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea.” Id.

Here, the petitioner does not assert that, if Gulash had investigated and discovered the petitioner’s PTSD, the petitioner would not have pleaded guilty. The petitioner asserts only that “[i]f counsel had added to the mix an effective and sympathetic presentation of Mr. Baez’ PTSD, it is much more than ‘reasonably probable’ that the outcome of the proceeding would have been different — i.e. that the state or the sentencing court would have agreed to a more lenient (and appropriate) sentence for Mr. Baez.” “A more lenient sentence” does not amount to the change of plea required by Lock-hart. The petitioner’s allegations, therefore, are insufficient to satisfy the Strickland requirement of prejudice. Id., 60. Because the petitioner failed to allege the kind of prejudice necessary to satisfy Strickland, the habeas court properly found that the petitioner failed to prove ineffective assistance of counsel.

The judgment denying the habeas petition is reversed as to the petitioner’s claim that he was not competent at the time he entered his guilty plea and the case is remanded for a new hearing on the habeas petition consistent with this opinion. The judgment is affirmed as to the claim of ineffective assistance of counsel.

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).

       The petitioner had earlier filed a pro se habeas corpus petition. Following the appointment of a public defender to represent him, the amended petition was filed.

       General Statutes § 54-56d (a) provides: “A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”

       Practice Book § 720 provides in pertinent part: “A defendant may withdraw his plea of guilty ... as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

        Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

       This court has applied the same “cause and prejudice” standard of reviewability to a case involving a guilty plea as that applied in a case involving the failure to preserve a claim at trial. See Bowers v. Commissioner of Correction, supra, 33 Conn. App. 451.

       The petitioner also claims that, at the hearing regarding his petition for a writ of habeas corpus, he never asserted that Gulash’s failure to use PTSD as a defense constituted ineffective assistance of counsel, but rather, that Gulash’s failure to gather and present evidence of the petitioner’s PTSD in plea negotiations and at sentencing constituted ineffective assistance of counsel. The habeas court in its memorandum of decision focused on Gulash’s failure to use PTSD as a defense as determinative of whether the petitioner did not have effective assistance of counsel and found that such failure did not constitute ineffective assistance of counsel. The petitioner claims that we must remand for a new hearing because the habeas court did not decide the claim as presented by the petitioner. The petitioner concedes that the habeas court in its memorandum of decision did refer to the petitioner’s claim that Gulash’s failure to gather and present evidence of the petitioner’s PTSD in plea negotiations and at sentencing constituted ineffective assistance of counsel and found that this claim had not been proven. The petitioner claims, however, that the reference is inadequate. The petitioner further claims that, if we accept the ruling, we must conclude that it is not supported by the evidence and is wrong as a conclusion of law. We conclude that the habeas court adequately addressed the petitioner’s claim. Therefore, we address only the petitioner’s claim that the habeas court improperly found that the failure of the petitioner’s trial counsel to investigate the petitioner’s mental condition did not constitute ineffective assistance of counsel.

       “The sixth amendment to the United States constitution provides: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.’ ” Siano v. Warden, supra, 31 Conn. App. 96 n.1.

       “The fourteenth amendment to the United States constitution provides in pertinent part: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ ” Siano v. Warden, supra, 31 Conn. App. 96 n.2.

       “Article first, § 8, of the Connecticut constitution provides in pertinent part: ‘In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . ” Siano v. Warden, supra, 31 Conn. App. 96 n.3.

       “Our Supreme Court adopted the two-pronged analysis of Strickland v. Washington [supra, 466 U.S. 694], to determine if a counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, [supra, 222 Conn. 455]; Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).” Siano v. Warden, supra, 31 Conn. App. 97 n.4.


text:
    Connecticut Resources Recovery Authority et al. v. Connecticut Light and Power Company
    (12366)
    Lavery, Heiman and Spear, Js.
    Argued February 14
    decision released May 3, 1994

      William H. Narwold, with whom, on the brief, was David D. Legere, for the appellants (plaintiffs).

      Brian T. Henebry, with whom, on the brief, was Philip M. Small, for the appellee (defendant).
   Lavery, J.

The plaintiffs appeal from the trial court’s judgment ordering that the dispute between the parties be resolved in proceedings before the department of public utility control (department). On appeal, the plaintiffs argue that the trial court improperly characterized the nature of the parties’ dispute and therefore erroneously chose department proceedings instead of arbitration as the appropriate method to resolve the dispute. We affirm the judgment of the trial court.

This dispute arose out of an agreement among the parties under which the plaintiffs own and operate a waste-to-energy facility in Preston. The agreement described the facility as having “nameplate capacity, net of station use, of approximately 13.85 MW.” Under the agreement, the defendant, Connecticut Light and Power Company, agreed to buy the facility’s entire net electrical output.

After the facility commenced operation, the defendant discovered that the facility’s net electrical output exceeded 13.85 megawatts per hour several times for brief periods. The defendant refused to pay the agreed rate for more than 13.85 megawatts of electricity per hour. The defendant asserted that production of more than 13.85 megawatts was in excess of the nameplate capacity and, therefore, not governed by the agreement. The plaintiffs argued that the defendant agreed to buy the entire output of the facility at the rate established in the agreement.

After the defendant stopped paying the agreed rate for electricity in excess of 13.85 megawatts, the plaintiffs brought suit seeking to compel arbitration under § 28 (b) of the agreement. The plaintiffs argued that the defendant disputed the manner in which the plaintiffs were operating the facility. The defendant contended that the sole disputed issue was the appropriate rate applicable to the facility’s excess output and, therefore, the dispute fell under the jurisdiction of the department under § 28 (a) of the parties’ agreement. The defendant argued that, even if it did have information on which to claim that the facility was being operated in violation of the parties’ agreement, resolution of that issue would not affect the parties’ rate dispute.

After a hearing, the trial court found as a fact that the dispute between the parties was “what is the rate that [the defendant] is required to pay for excess electrical output, if any.” “It is not our function to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . [W]e are not permitted to reject a factual finding on appeal merely because we, as a reviewing court, might disagree with the conclusion or would have reached a different result had we been sitting as the factfinders.” (Citation omitted; internal quotation marks omitted.) Owens v. New Britain General Hospital, 32 Conn. App. 56, 71, 627 A.2d 1373, cert. granted, 227 Conn. 923, 632 A.2d 701 (1993). “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . 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. . . (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993).

The sole evidence in support of the plaintiffs’ characterization of the dispute is three letters from the defendant to the plaintiffs in which the defendant questions whether the plaintiffs were in breach of the parties’ agreement. The pleadings and evidence support the trial court’s findings and we are not persuaded that the findings are clearly erroneous. Therefore, the trial court properly characterized the parties’ dispute as a rate issue.

Section 28 (a) of the parties’ agreement requires that all disputes not enumerated in § 28 (b) be resolved by the department. Section 28 (b) applies only to disputes regarding engineering and technical issues relating to the construction, operation and maintenance of the facility. Thus, the rate applicable to excess energy does not fall within § 28 (b). Payment disputes, such as the present issue, are to be resolved by the department under § 28 (a).

In this regard, the parties’ intent as evidenced by their agreement aligns with the intent of the state legislature that the department regulate and supervise public utilities and establish reasonable rates. See Greenwich v. Dept. of Public Utility Control, 219 Conn. 121, 126, 592 A.2d 372 (1991). Both the parties’ agreement and public policy dictate that this dispute be resolved by the department.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in this action are the Connecticut Resources Recovery Authority, the Southeastern Connecticut Regional Resources Recovery Authority and the American Ref-Fuel Company of Southeastern Connecticut.

       Section 28 (b) of the parties’ agreement provides: “Any dispute under this Agreement involving Prudent Engineering and Operating Practices, electrical characteristics, construction, operation and maintenance of the Facility, or other engineering or technical issues shall be resolved by binding arbitration . . . .”

       Section 28 (a) of the parties’ agreement provides: “Any disputes regarding payments from [the defendant] to [the plaintiffs] or interpretation of this Agreement not covered by subsection (b) below . . . shall be presented to the [department] and the matters submitted to it shall be subject to appeal in the normal manner for appeals from decisions of the [department].”