author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. MARTIN M.

    (AC 34246)
    Lavine, Beach and Schaller, Js.

      Argued February 6
    officially released June 4, 2013

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, was Maureen Platt, state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

LAVINE, J.

The defendant, Martin M., appeals from the judgment of the trial court denying his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that his sentence was imposed in an illegal manner because the court imposed sentence on the basis of (1) his kidnapping conviction in this action, which was reversed, (2) inaccurate information that sexual offenders collectively have relatively higher rates of recidivism and (3) an alleged postjudgment factual finding that he was a “sexual predator.” The defendant asks this court to reverse the judgment and remand the case with direction to order a new sentencing hearing as provided in Practice Book § 43-10. We affirm the judgment of the trial court.

The facts giving rise to this case are set forth in State v. Martin M., 115 Conn. App. 166, 168-69, 971 A.2d 828, cert. denied, 293 Conn. 908, 978 A.2d 1112 (2009). Over the course of about six years, the defendant repeatedly sexually assaulted the victim, who was approximately five years old when the assaults began. Id., 168. “After a trial to the jury, the jury found the defendant guilty of two counts of risk of injury to a child [in violation of General Statutes § 53-21], one count of sexual assault in the first degree [in violation of General Statutes § 53a-70 (a) (2)] and one count of kidnapping in the first degree [in violation of General Statutes § 53a-92 (a) (2) (B)]. The defendant was sentenced [by the court, Prescott, J.] to twenty years incarceration for sexual assault in the first degree, twenty years incarceration for kidnapping in the first degree and ten years incarceration for each count of risk of injury to a child. The terms of incarceration for the sexual assault and kidnapping were to be served concurrently and the terms of incarceration for each count of risk of injury were to be served concurrently to each other but consecutively to the sexual assault and kidnapping. The total effective sentence was thirty years incarceration.” Id., 169.

The defendant appealed to this court. Shortly after his conviction, our Supreme Court changed its interpretation of § 53a-92. See generally State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008). On the basis of that change in precedent, this court reversed the defendant’s conviction of kidnapping and remanded the case for a new trial on the kidnapping count. State v. Martin M., supra, 115 Conn. App. 180. On remand, the state elected not to retry the defendant on the kidnapping charge, and terminated the prosecution by entering a nolle pro-sequi as to that count. See Practice Book § 39-29 et seq.

Subsequently, the defendant filed an application with the sentence review division for review of his sentence, arguing for a sentence reduction in light of the nolle prosequi. See Practice Book § 43-23 et seq. The defendant raised essentially the same arguments as those he raises in the present appeal. The division, Alexander, B. Fischer and White, Js., affirmed the sentence, finding that the sentence was appropriate and not disproportionate. The defendant then filed a motion to correct an illegal sentence, raising the same arguments again. The court, Damiani, J., denied the motion. This appeal followed. Additional facts and procedural history are set forth as necessary.

I

The defendant’s first claim is that his sentence was imposed in an illegal manner because Judge Prescott relied on inaccurate information in imposing the sentence. In response, the state contends that the trial court properly denied the motion because Judge Prescott in fact did not rely on inaccurate information. We conclude that the trial court properly concluded that Judge Prescott did not rely on inaccurate information in imposing sentence.

We review the relevant legal standards. We review the court’s denial of the defendant’s motion to correct the sentence under the abuse of discretion standard of review. See State v. Olson, 115 Conn. App. 806, 811, 973 A.2d 1284 (2009). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Charles F., 133 Conn. App. 698, 705, 36 A.3d 731, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).

Practice Book § 43-22 sets forth the procedural mechanism for correcting invalid sentences, and its scope is governed by the common law. State v. Parker, 295 Conn. 825, 836, 992 A.2d 1103 (2010). A sentence is invalid if it is imposed in an illegal manner. See id., 837; see also Practice Book § 43-22. Within the definition of sentences imposed in an illegal manner, our jurisprudence includes sentences “which violate [a] defendant’s right . . . to be sentenced by a judge relying on accurate information . . . .” (Internal quotation marks omitted.) State v. Parker, supra, 839.

To prevail on a claim that a sentence is invalid because a sentencing court relied on inaccurate information, a defendant “must show . . . that the judge relied on that information.” (Emphasis in original; internal quotation marks omitted.) Id., 843; see also State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986). “A sentencing court demonstrates actual rebanee on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence.” (Internal quotation marks omitted.) State v. Parker, supra, 295 Conn. 843 n.12.

The evidence at trial supporting the kidnapping charge indicated as follows. At least once a week, the victim would wake up to find the defendant on top of him performing anal intercourse. State v. Martin M., supra, 115 Conn. App. 168. When the victim tried to get away, the defendant grabbed him by the arms, held him face down on the mattress and laid on top of him. Id. When the victim told the defendant to stop because it hurt, the defendant replied, “ ‘Shut up.’ ” Id. In denying the defendant’s motion for a judgment of acquittal, Judge Prescott concluded that the evidence of these facts supported the charge of kidnapping in the first degree pursuant to our Supreme Court’s construction of § 53a-92 (a) (2) (B) at that time.

At the sentencing hearing, Judge Prescott reviewed the presentence investigation report and heard from the state, the victim, the victim’s guardian ad litem, the defendant’s counsel and the defendant. Before imposing sentence, Judge Prescott explained his reasoning. Judge Prescott mentioned the kidnapping conviction twice, in rote recitation of the guilty verdict. See footnote 4 of this opinion.

The defendant claims that his sentence falls within the definition of a sentence imposed in an illegal manner because Judge Prescott relied on incorrect information: the defendant’s conviction of kidnapping in the first degree, which this court reversed. See State v. Martin M., supra, 115 Conn. App. 180. We assume but do not decide that reliance on the subsequently reversed kidnapping conviction constitutes reliance on incorrect information. To prevail on the merits, the defendant must show that Judge Prescott gave explicit attention to the kidnapping count, or based the sentence at least in part on it, or gave specific consideration to it before imposing sentence. See State v. Parker, supra, 295 Conn. 843 n.12.

Given the facts of this case, we reject the claim that the sentence was imposed in an illegal manner because the record does not reflect that Judge Prescott relied on the reversed conviction of kidnapping when sentencing the defendant. The sentence imposed for kidnapping was to be served concurrently with the sentence imposed for sexual assault, giving the sentence imposed for kidnapping essentially no punitive effect. After conducting a careful review of the sentencing hearing, it is clear that Judge Prescott focused on the sex offenses and considered the danger the defendant posed as a recidivist sex offender—the kidnapping conviction was incidental. See footnote 4 of this opinion. Judge Prescott mentioned the kidnapping count only in rote recitation and never discussed any of its particulars. See id. Aside from a brief colloquy discussing the relevant penalties in the presentence investigation report and a brief mention in the state’s summation, the arguments presented at the hearing did not involve the kidnapping conviction. Rather, the arguments concerned the sexual offenses; prior misconduct, including other sex offenses, domestic violence, burglary and violation of a protective order; and the effect of the assaults on the victim and the interests of the victim. The defendant has not shown that Judge Prescott relied on the kidnapping conviction in imposing sentence. See State v. Parker, supra, 295 Conn. 843.

The defendant argues that State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), controls the present appeal and requires a resentencing hearing. In Raucci, the defendant, Michael Raucci, originally was convicted on four counts, two of which were conspiracy charges. The sentences on two of those counts were to be served consecutively to the sentences on the other two counts. Id., 558. In particular, the sentence imposed for conspiracy to commit burglary in the third degree was imposed consecutively to all of the other sentences. Id. Shortly after Raucci’s sentencing, this court clarified that if a defendant is tried on multiple conspiracy counts arising out of a single agreement, then the court must render judgment and impose sentence on only that conspiracy to commit the most serious offense. See State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987). Raucci filed a motion pursuant to what is now Practice Book § 43-22 to have his conviction of conspiracy to commit burglary in the third degree vacated and to have his sentence reduced. State v. Raucci, supra, 559. The court vacated the conviction, but instead of reducing the sentence, the court revised the sentences imposed on the conviction of the other three valid counts so as to reflect its original sentencing intent and imposed the same total effective sentence as before Raucci’s direct appeal. Id. Raucci appealed to this court from his revised sentence, claiming that the trial court did not have jurisdiction to increase his sentence on the conviction of the other three valid counts. Id., 560-65. This court disagreed. Id.

What distinguishes the present appeal from Raucci is that Judge Prescott did not rely on the reversed conviction of kidnapping in imposing sentence. Cf. State v. Parker, supra, 295 Conn. 843 (must show court relied on misinformation). In Raucci, it was clear that the court relied on the vacated conviction. The sentence that the court imposed on the vacated conviction was consecutive to the sentences on all of the other counts. State v. Raucci, supra, 21 Conn. App. 559. In addition, the record showed that the court depended on the vacated conviction in imposing the intended total effective sentence. Id., 559 n.2. By contrast, there is no indication that Judge Prescott relied on the kidnapping conviction to determine the total effective sentence.

Similarly, we are not persuaded by the defendant’s claim that he is entitled to a new sentencing hearing pursuant to the aggregate package doctrine. See id., 560-62. First, the defendant misapprehends the theory: the doctrine concerns review of a revised sentence; it does not apply to the present appeal, which concerns whether an original sentence was imposed in an illegal maimer. It is a tool “to determine the relative severity of successive multicount sentences”; United States v. Vontsteen, 950 F.2d 1086, 1092 (5th Cir.), cert. denied, 505 U.S. 1223, 112 S. Ct. 3039, 120 L. Ed. 2d 908 (1992); and thereby ensure compliance with the mandate of North Carolina v. Pearce, 395 U.S. 711, 723-26, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), by prohibiting a court from punishing a defendant for successfully having an original conviction set aside. See United States v. Vontsteen, supra, 1092-93; see also State v. Raucci, supra, 21 Conn. App. 561 (discussing competing theories). Second, the defendant does not cite any authority for the proposition that the aggregate package doctrine obviates the requirement that there must be a showing of reliance on misinformation for a court to have jurisdiction to modify a sentence. See State v. Parker, supra, 295 Conn. 843.

Given the facts in the record before us, we cannot say that the court relied on inaccurate information in imposing its sentence on the defendant. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence.

II

In the alternative, the defendant further claims that his sentence was imposed in an illegal manner because Judge Prescott relied on an inaccurate understanding that sexual offenders collectively have relatively higher rates of recidivism and an alleged postjudgment factual finding that the defendant was a “sexual predator.” The state argues that this court adjudicated these issues in the defendant’s direct appeal and that res judicata bars the claims. The defendant counters (1) that the state cannot raise a res judicata claim in the present appeal because (a) res judicata is a special defense that must be pleaded, which the state failed to do, (b) the state did not present its res judicata claim as an alternate ground to affirm the judgment pursuant to Practice Book § 63-4, and (c) the state implicitly waived its res judicata claim; and (2) the doctrine of res judicata is inapposite because the claims in the present appeal are not identical to those raised in the defendant’s direct appeal. We conclude that the doctrine of res judicata bars the defendant’s claims. Because the doctrine applies equally to both claims, we consider them together.

A

First, we consider the threshold issue of whether we may consider the state’s res judicata claim. “The applicability of . . . res judicata presents a question of law . . . .” Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007). “Practice Book § 63-4 (a) (1) states that an appellee who ‘wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . shall file a prehminary statement of issues within twenty days from the filing of the appellant’s preliminary statement of the issues.’ This court is not precluded, however, from reviewing an alternate ground that was not raised in accordance with Practice Book § 63-4 (a) (1) (A) so long as the appellant will not be prejudiced by consideration of that ground for affirmance.” State v. Osuch, 124 Conn. App. 572, 580, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).

In addition, “ordinarily, an alternate ground for affirmance must be raised in the trial court in order to be considered on appeal.” Vine v. Zoning Board of Appeals, 281 Conn. 553, 568, 916 A.2d 5 (2007). “Only in [the] most exceptional circumstances can and will [a reviewing court] consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. . . . This rule applies equally to alternate grounds for affirmance.” (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2005). Our Supreme Court “also ha[s] held that, [i]f the alternate issue was not ruled on by the trial court, the issue must be one that the trial court would have been forced to rule in favor of the appellee.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 568-69.

The following procedural facts are relevant to this issue. In November, 2011, the defendant filed the motion to correct an illegal sentence, which is the subject of this appeal, along with a twelve page memorandum of law in support of the motion. The defendant raised essentially the same arguments as in the present appeal, including accompanying social science evidence supporting his position. The state did not file a memorandum of law in response. In December, 2011, Judge Damiani presided over a brief hearing on the motion; the entire transcript of the hearing spans only four pages. The state argued that the sentence was appropriate under the circumstances. At no point did the state raise a res judicata claim at the hearing.

Although the state did not articulate a res judicata claim before raising the doctrine in its brief to this court and did not raise such a claim at the hearing before Judge Damiani, we conclude that our review would not prejudice the defendant. First, the applicability of res judicata is a pure question of law. Powell v. Infinity Ins. Co., supra, 282 Conn. 601. Therefore, we “do not act to usurp or disturb the trial court’s discretion . . . by . . . deciding this issue in the first instance . . . because this issue is one [on which] the trial court would have been forced to rule in favor of the appellee.” (Internal quotation marks omitted.) State v. Cameron M., 307 Conn. 504, 526-27, 55 A.3d 272 (2012), cert. denied, U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013).

The present res judicata claim is analogous to the claim raised in Vine v. Zoning Board of Appeals, supra, 281 Conn. 568-69: “ ‘the trial court would have been forced to rule in favor of the [state]’ ” had the state raised a res judicata claim at trial. Second, like the defendant in State v. Osuch, supra, 124 Conn. App. 580-81, the defendant in the present appeal had an adequate opportunity to respond in his reply brief, and he did so. Finally, we note that the record is adequate for our review of the claim. See Vine v. Zoning Board of Appeals, supra, 569. Given these particular facts, we conclude that the defendant is not prejudiced by our consideration of res judicata as an alternate ground to affirm the judgment of the court.

We are unpersuaded by the defendant’s argument that Anderson v. Latimer Point Management Corp., 208 Conn. 256, 263-64, 545 A.2d 525 (1988), controls the present appeal because that case is distinguished procedurally from the present one. The defendant relies on language in Anderson that “res judicata [is] a legal doctrine which must be specially pleaded.” Id., 263. First, the rule is premised on the fact that “[o]rdinarily the doctrine of res judicata operates to preclude the relitigation in one action of a claim or issue that has been determined in a previous, separate action.” (Internal quotation marks omitted.) State v. Long, 301 Conn. 216, 237 n.19, 19 A.3d 1242, cert. denied, 565 U.S. 1084, 132 S. Ct. 827, 181 L. Ed. 2d 535 (2011). We note that “[t]his does not mean . . . that the doctrine cannot operate within the same case.” (Internal quotation marks omitted.) Id. Unlike appeals involving the usual application of res judicata, the present appeal concerns a motion to correct an illegal sentence, and such a motion generally does not require pleadings from parties. Second, the procedural facts as between Anderson and the present appeal axe too distinct for the former to persuade us as to how to resolve the latter. Among other things, Anderson did not involve a claim of an alternate ground to affirm pursuant to Practice Book § 63-4 (a) (1) (A).

Finally, the defendant claims that the state has implicitly waived the issue, citing our evolving doctrine of implied waiver under State v. Kitchens, 299 Conn. 447, 476-83, 10 A.3d 942 (2011), and subsequent cases. “Ordinarily, [w]aiver is a question of fact . . . .” (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 86, 919 A.2d 1002 (2007). “Waiver is the intentional relinquishment or abandonment of a known right or privilege.” (Internal quotation marks omitted.) Id., 87. “Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . . [W]aiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id.

In the present case, the prosecutor argued only that the sentence was appropriate under the circumstances. Even so, in its preliminary statement of the issues, the state included “[a]ny other alternative ground for affirmance of the judgment of conviction which, upon full review of the record and transcript of proceedings is apparent, or which becomes apparent upon . . . the filing of the defendant’s brief.” This statement is inconsistent with waiver. Cf. Webster Bank v. Oakley, 265 Conn. 539, 550, 830 A. 2d 139 (2003) (nonwaiver clause is designed to avoid inference of waiver), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004). In addition, Judge Damiani presided over a briefheaxhxg and denied the defendant’s motion. The state had no reason to articulate a res judicata claim at that time, and these circumstances do not reasonably support finding voluntary relinquishment of a known right.

B

As to the merits of the state’s res judicata argument, we reiterate the relevant legal standards. “[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . .” (Internal quotation marks omitted.) State v. Osuch, supra, 124 Conn. App. 581.

“[D]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence.” State v. Parker, supra, 295 Conn. 843. “The interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. . . . Whether two claims in a criminal case are the same for the purposes of res judicata should ... be considered in a practical frame and viewed with an eye to all the circumstances of the proceedings. ... [A reviewing court] should be careful that the effect of the doctrine does not work an injustice.” (Citation omitted; internal quotation marks omitted.) State v. Long, supra, 301 Conn. 237.

“In the criminal context, the doctrine’s application depends on whether the present claim is sufficiently similar to the previous claim to warrant [the] giving [of] preclusive effect to the prior judgment.” (Internal quotation marks omitted.) Id., 238.

The following procedural facts are relevant to resolving this issue. In the defendant’s direct appeal, he claimed “that the [sentencing] court improperly considered the recidivism rate of sexual predators when sentencing him, in violation of his constitutional rights.” State v. Martin M., supra, 115 Conn. App. 176. Specifically, the defendant argued “that the court improperly labeled him a sexual predator and relied on false information that sexual offenders have high recidivism rates when it determined his sentence.” Id. This court was not persuaded by either claim. Among other things, this court concluded that the defendant failed to show “that the trial court substantially relied on the information in determining the sentence,” pursuant to State v. Collette, supra, 199 Conn. 321. See State v. Martin M., supra, 177-80. This court also concluded that “the [trial] court’s reliance on the high recidivism rate of sexual predators was just one consideration in the court’s sentence and not one on which the court substantially relied.” Id., 179.

In the present appeal, the defendant claims that Judge Prescott improperly labeled the defendant a “sexual predator” and relied on the ostensibly false belief that sex offenders have a high recidivism rate. The defendant submits copious social science evidence that sex offenders do not actually have a higher rate of recidivism. The defendant again presents arguments that he has satisfied the requirements of State v. Collette, supra, 199 Conn. 308.

We conclude that the defendant seeks to relitigate essentially the same claims that this court decided against him in his direct appeal. As to the defendant’s claim that Judge Prescott improperly labeled him a sexual predator, we agree with the defendant’s own statement: “[i]n his original appeal, the defendant raised an identical issue.” See State v. Long, supra, 301 Conn. 239. He cannot relitigate this claim. As to the defendant’s claim that Judge Prescott relied on the ostensibly false belief that sex offenders have a high recidivism rate, the studies that the defendant presents have no bearing on whether Judge Prescott relied on misinformation. See State v. Collette, supra, 199 Conn. 321 (defendant must show trial court “substantially relied” on misinformation in imposing sentence). In the defendant’s direct appeal, this court concluded that Judge Prescott did not substantially rely on the recidivism rate of sex offenders in imposing sentence. Assuming without deciding that the studies the defendant cites should be credited, the studies alone do nothing to show that Judge Prescott relied on misinformation and do not provide us with reason to believe application of res judicata could work an injustice in the present appeal. See State v. Long, supra, 237. The present claims are sufficiently similar to the defendant’s previous claims to warrant giving preclusive effect to the judgment rendered in the defendant’s direct appeal. See id., 238.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state also asserts that the trial court was without jurisdiction to entertain the motion to correct an illegal sentence. We reject this argument.
      Our reasoning is informed by State v. Henderson, 130 Conn. App. 435, 24 A.3d 35, cert. granted, 302 Conn. 938, 28 A.3d 992, 993 (2011). In Henderson, this court concluded that jurisdiction was appropriate because “the defendant’s claims go to the actions of the sentencing court. Specifically, he challenge[d] actions taken by the sentencing court that, although proper at the time, were affected by a subsequent change in the law.” Id., 445. We conclude that the court had jurisdiction to entertain the defendant’s motion “[rjegardless of the merits of such a claim . . . .” Id., 446.
      We recognize that our Supreme Court has decided to review this portion of Henderson. The first certified question in that appeal is, “Did the Appellate Court properly determine that the defendant’s claim fell within the purview of Practice Book § 43-22, and that the trial court had jurisdiction to consider the defendant’s motion to correct an illegal sentence?” State v. Henderson, 302 Conn. 938, 28 A.3d 992, 993 (2011). We also note that our decision is not inconsistent with our Supreme Court’s recent precedent in this area. See State v. Parker, 295 Conn. 825, 840 n.10, 992 A.2d 1103 (2010) (declining to reach this issue).
      Finally, we reject the state’s assertion that this court lacks jurisdiction to consider the present appeal. The state argues that “this [c]ourt, too, lacks jurisdiction over [this] [i]ssue . . . and should dismiss th[e] issue . . . .” This court has jurisdiction to determine whether a trial court had subject matter jurisdiction to hear a case. General Statutes § 52-263; see also Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 131 Conn. App. 567, 571, 27 A.3d 467 (2011), cert. granted on other grounds, 303 Conn. 928, 36 A.3d 242 (2012).

       Practice Book § 43-22 provides in relevant part: “The judicial authority may at any time correct ... a sentence imposed in an illegal manner...."

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony . . . .”

       Judge Prescott stated in relevant part: “In making my sentencing determination today I have taken into account the information contained in the [presentence investigation report], comments from the state, comments from [the victim], comments from counsel for the defendant, the defendant’s comments, the serious nature of the crime, comments from [the victim’s guardian ad litem], and the lengthy and very troubling record of the defendant.
      “In attempting to fashion an appropriate sentence in this case, I’ve also attempted to be mindful of the goals of sentencing, which [are] rehabilitation, deterrence, and punishment. As everyone knows, the defendant was found guilty of one count of sexual assault in (he first degree, one count of risk of injury to a minor in violation of [§ 53-21 (a) (1)], one count of risk of injury to a minor in violation of [§ 53-21 (a) (2)], and kidnapping in the first degree.” The court went on to praise the victim for his courage at some length.
      Then the court addressed the defendant directly: “[T]he considerations that I've thought about in terms of the sentence primarily relate to your prior criminal record. You know, you have a history, whether you’re in denial about it or not, of sexually preying on children, and part of my job as the judge is to make sure that you never have the opportunity to do something like this to any child again. We ... all know that sexual predators have a very bad history of recidivism, and part of my job is to protect not just [the victim] but all of the children of the state of Connecticut, and my sentence is going to reflect ... my concerns about doing that. Not only do you have a history of . . . sexual abuse, but a history of violence, particularly domestic violence, and that’s certainly ... a strong factor in ... my decision.
      “My decision also rests upon the severity of the sexual abuse [of the victim]. We all heard the . . . medical testimony, which made clear that this was not an isolated . . . incident, but caused—without going into any details, which 1 don’t think we need to rehash today—caused serious injury to [the victim], both physical and emotional, obviously. And you know it will affect [the victim] for the rest of his life. . . . You treated [the victim] ... as an inanimate object that existed solely to meet your base and depraved needs. . . .
      “[AJnother important factor is . . . you’ve expressed no remorse or an understanding of the consequences of your action. ... I also note that prior prison sentences . . . haven’t . . . seemed to have had an effect on your ability to conform your conduct to the law and to be a . . . productive member of society.
      “In light of all of those considerations, I therefore sentence you ... to the custody of the commissioner of correction for a total effective sentence of thirty years. On the conviction for sexual assault in the first degree, twenty years to serve, ten years of which is a mandatory minimum. Kidnapping in the first degree, twenty years. That’s to run concurrently with the conviction for the sex assault in the first degree. Risk of injury to a minor, ten years on each. Those are to run consecutively to the sentences on the sex assault and kidnapping for a total effective sentence of thirty years to serve.”

       Judge Damiani denied the defendant’s motion on a ground other than res judicata. Nevertheless, we affirm the judgment of denial on this alternate ground. See State v. DeLoreto, 265 Conn. 145, 153, 827 A.2d 671 (2003) (reviewing court may affirm on dispositive alternate ground supported in record).

       Although we conclude that the state did not waive its res judicata claim in the present case, our conclusion should not be read to suggest that such boilerplate language automatically absolves the state from its obligation to raise such a claim in its preliminary statement of the issues; Practice Book § 63-4 (a) (1); or from its obligation to raise the claim in the trial court. See Vine v. Zoning Board of Appeals, supra, 281 Conn. 568.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RICHARD FENYES v. TRUMBULL PROBATE COURT ET AL.
    (AC 34784)
    DiPentima, C. J., and Alvord and Peters, Js.
    Submitted on briefs March 8
    officially released June 4, 2013

      Richard Fenyes, pro se, the appellant (plaintiff), filed a brief.

      Barbara M. Schellenberg and David B. Zabel filed a brief for the appellee (defendant Greta E. Solomon).
   Opinion

PER CURIAM.

The plaintiff, Richard Fenyes, appeals from the decision of the Superior Court, Hon. William B. Rush, judge trial referee, dismissing his appeal from the defendant Probate Court for the district of Trumbull. We affirm the judgment of the Superior Court.

The following facts are relevant to our resolution of this appeal. On June 7,2002, the plaintiffs mother, Mary Fenyes, executed the Mary Fenyes Living Trust (Trust), naming herself as trustee and the plaintiff as successor trustee. On November 29,2006, the Probate Court, Hon. Daniel F. Caruso, removed the plaintiff as successor trustee. On December 24,2008, the Probate Court, Hon. F. Paul Kurmay, confirmed the plaintiffs removal and appointed James M. Sheridan, a retired banker, as successor trustee. The plaintiff appealed Judge Kurmay’s decision to the Superior Court, but his appeal was dismissed and he did not pursue further appeals. After Sheridan resigned, the Probate Court, Hon. Fred J. Anthony, appointed the defendant Greta E. Solomon, an experienced trusts and estates lawyer, to succeed him on March 24, 2011. The plaintiff appealed this decision to the Superior Court. After a hearing, the court, Hon. William B. Rush, judge trial referee, dismissed his appeal on May 16, 2012. The court found that the defendant was “an appropriate and suitable person to be appointed as trustee” upon the vacancy created by Sheridan’s resignation. This appeal followed.

The plaintiff has contended throughout this litigation that he ought to be the trustee of the Trust. He argues that because the Probate Court’s 2008 decision confirming his removal as successor trustee was “illegal,” the Probate Court had to restore him as successor trustee upon the resignation of Sheridan. He also claims several evidentiary errors based on the same premise. Furthermore, the plaintiff argues that the court erred in finding that the defendant was an appropriate successor trustee because of an alleged conflict of interest, and in not restoring him as successor trustee because he is the person his mother wanted.

The plaintiff concedes that the crux of his appeal is that he wrongfully was removed as successor trustee. In its dismissal of the plaintiffs appeal, the Superior Court noted that his appeal from the 2008 decision of Judge Kurmay removing him was dismissed and therefore that decision was a final ruling. The record supports this determination. In Gerte v. Logistec Connecticut, Inc., 283 Conn. 60, 63, 924 A.2d 855 (2007), our Supreme Court stated: “A collateral attack on a judgment is aproceduraily impermissible substitute for an appeal.” (Internal quotation marks omitted.) That is exactly what the plaintiff attempted to do in this case. The Superior Court properly limited the scope of its inquiry to the actual issue on appeal, namely, whether or not the defendant was an appropriate successor trustee, and refused to open the 2008 judgment confirming the plaintiffs removal as successor trustee.

As to the plaintiffs evidentiary claims, upon an examination of the record and briefs and considering the arguments of the parties, we are persuaded that the court did not abuse its discretion. Finally, the plaintiffs claim that the defendant had a conflict of interest is without merit.

The judgment is affirmed.

       The plaintiff named the Probate Court for the district of Trumbull as a defendant but it is a nonappearing party. For convenience, we refer in this opinion to Greta E. Solomon as the defendant

       Mary Fenyes died in June, 2009.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. KEVIN LINDSAY
    (AC 33835)
    DiPentima, C. J., and Graendel and Borden, Js.

      Argued March 13
    officially released June 4, 2013

      Deborah G. Stevenson, assigned counsel, for the appellant (defendant).

      Linda Currie-Zeffiro, senior assistant state’s attorney, with whom, on the brief, were, John C. Smriga, state’s attorney, and Joseph Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Kevin Lindsay, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). He claims that the trial court improperly (1) denied his motions for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he caused serious physical injury to the victim and (2) denied his motion for a new trial due to (a) incorrect evidentiary rulings, (b) prosecutorial impropriety and (c) instructional error. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the early hours of April 13, 2008, the victim, Julio Nieves, visited the defendant’s apartment, located at 25 Sanford Place in Bridgeport, to purchase crack cocaine. The victim had purchased drugs from the defendant at this location on numerous occasions and testified that he was a habitual crack cocaine user. On this occasion, the victim purchased crack cocaine from a different individual at the defendant’s apartment. As the victim exited the apartment and walked down a hallway, four men approached, including the defendant. When the defendant told the victim to “get the fuck out of the way,” the victim responded in kind. As the victim recounted at trial, the defendant “got angry” and “came towards me in a threatening manner and when he got close enough to swing he started swinging on me, hitting me.” As he attempted to defend himself from the defendant’s attack, the victim was struck in the back of the head. When he turned around to see who had hit him, the defendant struck the victim on the back of his head, causing him to fall to the floor. At that point, the defendant and others began stomping on the victim’s head. The victim screamed for them to stop and tried to defend himself before losing consciousness in the hallway.

Emergency medical personnel responded to a life-threatening dispatch at 2:40 a.m. They discovered the victim lying facedown on the ground behind the apartment building. His shirt was pulled up and his pants were down by his ankles. They noticed a shoe print on his upper back, and when they rolled the victim over, they observed multiple bruises and abrasions to his face and “road rash” on his chest, legs and torso. Shayna Green, one of the emergency medical technician responders, explained at trial that the term “road rash” meant that the victim’s body looked “like he had been dragged.” Green testified that the victim appeared to have been “beaten pretty badly” and was not conscious. As a result, the medical personnel initiated a “priority one transport” to St. Vincent’s Medical Center (medical center), where they activated a trauma alert and turned over care of the victim to the trauma team.

Gary Kami was the trauma surgeon on call in the early hours of April 13, 2008. He responded to a “level one trauma” call, which indicates “the highest tier or highest priority” for “a serious injury [that is] potentially life threatening.” Upon first observing the victim, Kami noted that he “had obvious blunt force trauma to the head primarily and had an altered mental status.” Kami observed “multiple abrasions and contusions all over the body, primarily in the region of the face and scalp.” Medical intervention was required to ensure the victim’s survival, as a result of which the victim was anesthetized and placed on a breathing tube to assist with his ventilation. The victim ultimately was diagnosed with a traumatic brain injury and remained under Kami’s care for thirty-two days at the medical center. He then was transferred to Gaylord Hospital for rehabilitation care because “[h]e still had some pretty profound deficits [that] required further care,” where he remained for seven weeks. Upon his discharge from Gaylord Hospital, the victim’s cognitive deficits remained.

Members of the Bridgeport police department arrived on the scene by the defendant’s apartment in the early hours of April 13,2008, as emergency medical personnel treated the victim. They were unable to find any witnesses or identifying information on the victim. The police department’s crime scene identification unit processed the scene, taking photographs and seizing blood samples from a piece of a shirt. Detective Sergeant Giselle Doszpoj visited the medical center in an attempt to contact the victim, but was unsuccessful, as the victim was in a coma. She ultimately suspended the investigation due to the lack of any witnesses or input from the victim.

Doszpoj subsequently received a letter from the victim in January, 2010. In a later correspondence, the victim identified the defendant as one of his assailants. She then assigned Detective Keith Bryant to interview the victim, who obtained a signed statement from him. The victim also identified the defendant from three photographic arrays containing a total of twenty-four individuals.

The defendant was arrested and charged with assault in the first degree in violation of § 53a-59 (a) (3) and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (3), and a jury trial followed. At the conclusion of the state’s case-in-chief, the court granted the defendant’s motion to dismiss the conspiracy count, leading the state to file a revised long form information charging the defendant solely with assault in the first degree. The defendant at that time also orally moved for a judgment of acquittal, arguing that the state had not proven that he caused a serious physical injury to the victim. The court denied that motion. The jury thereafter found the defendant guilty of assault in the first degree. The defendant filed postjudgment motions for a judgment of acquittal and a new trial. After hearing argument thereon, the court denied those motions and rendered judgment in accordance with the jury’s verdict. The court sentenced the defendant to a total effective term of fourteen years incarceration followed by six years of special parole. From that judgment, the defendant now appeals.

I

The defendant claims that the court improperly denied his motions for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he caused serious physical injury to the victim. We disagree.

“[T]he [d]ue [pjrocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support [its] verdict. . . .

“It is axiomatic that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, 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. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury] would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010).

“Causation is an essential element of assault in the first degree; see General Statutes § 53a-59 (a) (3); and, [i]n order for legal causation to exist in a criminal prosecution, the state must prove beyond a reasonable doubt that the defendant was both the cause in fact, or actual cause, as well as the proximate cause of the victim’s injuries.” (Internal quotation marks omitted.) State v. Collins, 100 Conn. App. 833, 843, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). In the present case, there is a reasonable view of the evidence that supports the jury’s finding that the defendant caused serious physical injury to the victim.

The jury was presented with the victim’s firsthand testimony that the defendant instigated the assault and struck the first blows to his person, that it was the defendant’s blow to the back of his head which knocked him to the floor and that the defendant then kicked and stomped him in the head. The jury, as sole arbiter of credibility, was free to believe that testimony. See State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). The jury likewise was free to credit Kami’s testimony that “[i]t was clear to me from the location and the multiple nature of the bruises around the head and the scalp that [the victim] had been struck more than once” and that, although he could not pinpoint one specific blow that caused the traumatic brain injury, it was equally conceivable that “every one of [the blows to the victim’s head] contributed to the injury . . . .” On the basis of that testimony, the jury reasonably could have concluded that the defendant caused a foreseeable serious physical injury to the victim.

The defendant nevertheless asserts that the actions of others who also struck the victim during the altercation constitute intervening causes that relieve the defendant of liability. The court’s charge to the jury on that issue, which mirrors the model criminal jury instruction from the judicial branch website; see Connecticut Criminal Jury Instructions § 2.6-1 (4th Ed. 2007), available at http://jud.ct.gov/JI/Criminal/part2/2.6-1.htm (last visited May 22, 2013); stated in relevant part: “The doctrine of intervening cause is used as a dividing line between two closely related factual situations. One, when two or more persons or forces, one of which was set in motion by the defendant, combined to cause the person’s injury, the doctrine of intervening cause will not relieve the defendant of criminal responsibility. And two, when an unforeseeable act or force intervenes in such a powerful way as to become the proximate cause of the injury, the doctrine of intervening cause will reheve the defendant from criminal responsibility even though his or her conduct contributed in fact to the injury. . . . [W]hen more than one factor contributes in a chain of events to cause injury, in order to be the proximate cause of those injuries the defendant’s conduct must have been the cause that naturally set in motion the operation of the fact that accomplished the injury. When the other circumstances constitute a concurring or contributing cause of the injury, the defendant will be held responsible. When the other circumstances constitute an intervening cause of the injury, the defendant will not be held responsible. It is a question of fact for you the jury to determine.”

On the evidence before it, the jury reasonably could have found that the conduct of others in striking the victim was a concurring cause of the injuries he sustained. The jury was presented with evidence that the defendant set the events of April 13, 2008, in motion when he first attacked the victim. Although the victim testified that others also struck him during the assault, the evidence before the jury indicates that it was the defendant’s blow to the back of his head that caused the victim to fall to the ground. The evidence further indicates that the defendant continued the assault by stomping on the victim’s head, an act in which the others joined. On that evidentiary basis, the jury reasonably could have concluded that the defendant’s initial assault of the victim was the catalyst that set into motion the conduct of the other individuals, and that the acts of the others merely supplied “a concurring or contributing cause of the injury . . . .” State v. Munoz, 233 Conn. 106, 124, 659 A.2d 683 (1995).

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded beyond a reasonable doubt that the defendant’s conduct in striking the victim on the back of the head and then repeatedly stomping on his head caused serious physical injury to the victim. Accordingly, the court properly denied the motions for a judgment of acquittal.

II

The defendant next claims that the court improperly denied his motion for a new trial. Specifically, he alleges that a new trial was warranted due to (1) incorrect evidentiary rulings, (2) prosecutorial impropriety and (3) instructional error. “[AJppellate review of a trial court’s decision . . . denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, a motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. ... In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 271, 49 A.3d 705 (2012). With that standard in mind, we turn to the specific claims raised by the defendant.

A

The defendant contests the propriety of two eviden-tiary rulings. “The standard of review of an evidentiary challenge is well established. Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence . . . and jejvery reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Golodner, 305 Conn. 330, 347, 46 A.3d 71 (2012).

“Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . . . Before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. ... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.” (Citation omitted; internal quotation marks omitted.) Filippelli v. Saint Mary’s Hospital, 141 Conn. App. 594, 601, 61 A.3d 1198 (2013). Evidentiary error that is not constitutional in nature “is harmless when an appellate court has a fair assurance that the [error] did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Guilbert, supra, 306 Conn. 265.

1

The defendant first claims that the court improperly admitted evidence of two prior felony convictions. Prior to the commencement of trial, the court ruled that the defendant’s convictions for robbery in the first degree in 1985 and burglary in the second degree in 1992 would be admissible for impeachment purposes in the event that the defendant testified at trial. The defendant testified at trial in his defense, claiming, inter alia, that he had no involvement in the victim’s assault and that “whatever went on there it had nothing to do with me . . . .” During his direct examination, defense counsel raised the issue of the two prior felony convictions, which the defendant admitted. The prosecutor likewise referenced those two convictions in his cross-examination of the defendant.

On appeal, the defendant claims that the court abused its discretion in admitting evidence of those two prior felony convictions. “Generally, evidence that a witness has been convicted of a crime is admissible to impeach his credibility if the crime was punishable by imprisonment for more than one year. ... In determining whether to admit evidence of a conviction, the court shall consider: (1) the extent of the prejudice likely to arise; (2) the significance of the particular crime in indicating untruthfulness; and (3) the remoteness in time of the conviction. . . . Moreover, [i]n evaluating the separate ingredients to be weighed in the balancing process, there is no way to quantify them in mathematical terms. . . . Therefore, [t]he trial court has wide discretion in this balancing determination and every reasonable presumption should be given in favor of the correctness of the court’s ruling .... Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done. . . . With respect to the remoteness prong of the balancing test, [our Supreme Court has] endorsed a general guideline of ten years from conviction or release from confinement for that conviction, whichever is later, as an appropriate limitation on the use of a witness’ prior conviction. . . . [T]he ten year benchmark ... is not an absolute bar to the use of a conviction that is more than ten years old, but, rather, serves merely as a guide to assist the trial judge in evaluating the conviction’s remoteness. . . . [The court has] recognized, moreover, that convictions having some special significance upon the issue of veracity surmount the standard bar of ten years and qualify for the balancing of probative value against prejudice.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 738-39, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); see also Conn. Code Evid. § 6-7 (a).

All three of the aforementioned factors support the court’s determination that the prior convictions were admissible for impeachment purposes. First, as the court noted, the degree of prejudice stemming from the admission of the defendant’s convictions for robbery and burglary was minimized by the fact that those convictions differed significantly from the charged crime of assault in the first degree. The prejudice further was minimized by the court’s limiting instruction to the jury, which cautioned the jury that “ [t]he fact that [the defendant] admitted he was previously convicted of several crimes is only admissible on the question of the credibility of the [defendant], . . . The defendant’s criminal record bears only on [his] credibility.”

Second, the crimes of which the defendant was convicted indicate untruthfulness. “[C]rimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements. . . . [I]n common human experience acts of deceit, fraud, cheating, or stealing . . . axe universally regarded as conduct which reflects on a [person’s] honesty and integrity . . . .” (Internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 868, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005); see also State v. Askew, 245 Conn. 351, 364, 716 A.2d 36 (1998) (crimes involving larcenous intent “obviously bear heavily on the credibility of one who has been convicted of them”). Convictions for burglary and robbery are highly probative of a defendant’s veracity. State v. Skakel, supra, 276 Conn. 739; State v. Vitale, 76 Conn. App. 1, 8, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

Third, although the two convictions exceeded the ten year benchmark, the court nevertheless reasonably could have determined that they were not too remote given the fact that they possessed “special significance upon the issue of veracity . . . .” (Internal quotation marks omitted.) State v. Skakel, supra, 739. As a result, we conclude that the court did not abuse its discretion in admitting evidence of the defendant’s burglary and robbery convictions.

2

The defendant also alleges that the court improperly admitted a statement of his probation officer, Monique Wilson. At trial, Wilson testified that she twice attempted to initiate violation of probation proceedings against the defendant. The defendant immediately objected and the jury was excused. The state then made an offer of proof outside the presence of the jury regarding its line of questioning on that issue. The court ruled that it would “allow [the state] to ask [Wilson], but the response [would] be limited to that she told [the defendant] two times that she could not violate [his probation] absent a conviction. And that’s it.” Defense counsel then asked the court to “order it stricken [from] her previous testimony that she tried to violate [his probation] on two occasions, because that’s still hanging out there,” and the court responded affirmatively. When Wilson’s testimony before the jury resumed, she stated, consistent with the court’s earlier ruling, that she twice had advised the defendant of violation of probation procedures that required a conviction. It nevertheless is undisputed that the court never ordered Wilson’s previous testimony stricken in the presence of the jury. The defendant claims that the court’s failure to do so warrants a new trial.

The defendant has not satisfied his burden to establish that the court’s failure to order Wilson’s testimony stricken before the jury was harmful. The defendant himself testified at trial that he was on probation and that the conditions of his probation required, inter alia, that he not engage in any criminal activities. More specifically, the defendant testified that “[a]nything that constitutes breaking the law is a violation.” Wilson never testified as to the basis of her attempts to initiate violation of probation proceedings against him. Moreover, her testimony that her attempts were unsuccessful very well may have benefitted the defendant, as it suggests that the underlying transgressions did not, in fact, transpire. As a result, we cannot say that the defendant has demonstrated that the court’s failure to strike Wilson’s remark substantially affected the jury’s verdict.

B

The defendant contends that the prosecutor, during the rebuttal portion of closing argument, improperly expressed his opinion that the defendant was a liar and commented on the defendant’s trial strategy. In evaluating claims of prosecutorial impropriety, we determine, first, if impropriety occurred and, second, if it did, whether it infringed on the defendant’s due process right to a fair trial. See State v. Darryl W., 303 Conn. 353, 375, 33 A.3d 239 (2012). The initial inquiry requires a fact specific determination as to whether certain conduct was improper, while the latter requires a constitutional determination as to whether a defendant’s sixth amendment right was violated.

“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutoriai [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 64-65, 932 A.2d 416 (2007). Our Supreme Court recently clarified that “when a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show . . . that the remarks were improper . . . .” State v. Payne, 303 Conn. 538, 562-63, 34 A.3d 370 (2012).

1

The defendant first claims that the prosecutor improperly expressed his opinion that the defendant was a liar. We disagree.

The following additional facts are relevant to that claim. During his closing argument, defense counsel stated in relevant part: “[T]here are other things to consider here. [The victim has] got felony convictions. . . . You can consider that. It doesn’t mean someone’s automatically lying, but it’s something you can consider. [The victim] also indicated he was involved in dishonest activities, you know, shoplifting from stores. You can consider that.” Defense counsel later remarked that “[f]or the state to prove its case, you have to find beyond a reasonable doubt that [the defendant] is not telling you the truth, that he’s lying, because there’s no way you can believe him and also believe the state’s case in regard to [the defendant] because he says [he] was not involved. You have to find beyond a reasonable doubt that he’s lying. ... So if [the defendant] wanted to lie, if the state’s saying he made up a story . . . .”

At the outset of his rebuttal, the prosecutor prefaced his remarks as follows: “[F]irst of all, I want you to understand something. The story’s preparation, what they could have said, what they wouldn’t have said, I have never called anyone a liar. I’m not allowed to have an opinion nor will I call you a liar, okay? My responsibility is to provide you with the evidence. I’m not throwing dirt on anybody. But look at what defense counsel is bringing up for you to consider.” The prosecutor proceeded to rebut certain points raised by defense counsel. In response to defense counsel’s statements regarding the victim’s criminal record, the prosecutor stated in relevant part: “Records. Consider the the records. . . . [W]hy can’t you consider the defendant’s record? According to [defense counsel], the victim is a thief, a liar, a—he steals. The defendant burglarizes and robs, and he has ten years hanging over his head if he’s convicted .... Who had more incentive to go over there and make a story? Now, the state never said [the defendant] lied. Can’t say that about people, I can’t say that about witnesses. His Honor will say it’s improper argument. But listen to his story: I had minimal involvement, I was there, didn’t get in a fight; I saw it, you know, the guys coming, didn’t get in the fight. I was there about that time, didn’t get in a fight. I left just before. I came back the morning of—or after. See what I mean? He didn’t change it, he just adjusted it, that’s what he did. The facts still changed. You got eight inches of paperwork saying the man was beaten into a coma. [The victim] says the defendant did it. That has never changed.”

Later in his rebuttal, the prosecutor highlighted the defendant’s testimony regarding the existence of pit bulls in the neighborhood. He stated: “[T]he defendant takes the stand and says everybody has pit bulls, everybody has pit bulls; yes, everybody has pit bulls. All right. Then when I asked him who. Well, I don’t know, I mean, you know. Do the elderly people have it? No. I don’t know. Who? You’re saying pit bulls are the dog of choice of drug dealers? Well, I don’t know, I don’t know. Who’s changing stories on the stand? . . . Come on, ladies and gentlemen, who, all right, is more credible?”

We perceive no impropriety in the aforementioned statements. The prosecutor merely drew the jury’s attention to facts already in evidence and encouraged the jury to consider that evidence in assessing whether the defendant’s testimony was credible. As an advocate, the prosecutor permissibly may “employ forceful arguments based upon the facts in evidence and the reasonable inferences drawn from such facts.” (Internal quotation marks omitted.) State v. Tate, 85 Conn. App. 365, 374, 857 A.2d 394, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004). Notably, the prosecutor repeatedly reminded the jury that he could not express an opinion on that issue. It thus is not surprising that defense counsel did not object to any of those statements at the time they were uttered. We cannot say that the prosecutor’s rebuttal statements strayed impermissibly beyond the evidence or the inferences that the jury reasonably could have drawn from it, particularly when defense counsel had employed an almost identical argument in his closing remarks.

2

The defendant also argues that the prosecutor improperly commented on the defendant’s trial strategy. In his closing argument, defense counsel displayed a highlighted statement from a portion of a medical record projected from a laptop computer, which stated that “[i]n addition [the victim’s] symptoms or mental status likely worsened due to pain, cocaine withdrawal and medications he’s receiving.” During his rebuttal, the prosecutor attempted to address that highlighted statement and the following colloquy ensued:

“[The Prosecutor]: That highlighted statement. Why didn’t defense counsel ask any witness about that highlighted statement, but yet waited to—
“[Defense Counsel]: Objection, Your Honor, that’s improper argument.
“[The Prosecutor]: What’s improper about it, Judge?
“[Defense Counsel]: Questioning tactics.
“The Court: No, I’ll allow it.
“[The Prosecutor]: We could have found out about it. But let’s highlight it; let’s make the victim look bad. I guess the hooker deserves what she gets and [the victim] the junkie deserved what he got.”

We agree with the trial court that the prosecutor’s statement was not improper. The statement was made during rebuttal and it drew the jury’s attention to the fact that the defendant had not presented any evidence or testimony at trial to explain the highlighted statement for the jury. It is well established that “[a] prosecutor may respond to the argument of defense counsel dining rebuttal.” State v. Galarza, 97 Conn. App. 444, 471, 906 A.2d 685, cert. denied, 280 Conn. 936, 909 A.2d 962 (2006). As this court has observed, “our case law consistently has held that invited argument is not improper.” State v. Collazo, 113 Conn. App. 651, 671 n.12, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). Because the record demonstrates that the prosecutor’s remark was invited by the defendant’s argument, the defendant’s claim fails.

C

The defendant’s final set of claims allege instructional error. The standard by which we review such claims is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [the jury] might find to be established .... When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party. ... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007). “[T]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . [W]e must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citation omitted; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003).

Following the close of evidence, the court conducted a charging conference with the parties off the record. At the outset of the proceeding on May 13, 2011, the following colloquy transpired:

“The Court: “Good morning, counsel. Just to put on the record what we covered in the charge conference this morning. There . . . are no lesser included offenses being claimed. There’s no self-defense claim. There are inconsistent statements by the complaining witness and it’s unresolved at this point whether there are any inconsistent statements by the defendant. There [are] limiting instructions on convictions and the misconduct by the victim and a limiting instruction on convictions for the defendant. There is no need for a Ledbetter special instruction on the facts that have been elicited here during the trial. The question of police competency, there will be a charge on that. There was— the court is going ... to adopt the defendant’s request for proximate cause but I’m going to be adding another paragraph [regarding the doctrine of intervening cause]. ... Is there anything else that you want to bring to my attention on the charge conference?”
“[The Prosecutor]: Not on the charge conference, Your Honor, no.
“[Defense Counsel]: No, Your Honor. Just for the record, in light of a recent Superior Court decision, although we’ve been informed by the court of the subject matters of the charge it would give, you have not yet reviewed the charge, and I’ll take exceptions if I find there’s something I object to during the charge.
“The Court: Right.”

1

The defendant’s first allegation of instructional impropriety requires little discussion. He asserts that the court failed to provide the written instructions to counsel prior to instructing the jury. He provides no authority to support that allegation. To the contrary, our Supreme Court has observed that, although preferable, a trial court is not required to “always provide the parties with an advance written copy of the charges . . . .” State v. Baptiste, 302 Conn. 46, 57, 23 A.3d 1233 (2011). In addition, the preceding colloquy plainly indicates that defense counsel had no objection to the court’s inclusion of a new instruction on intervening cause and that he indicated that he would “take exceptions” if he found something objectionable during the charge. As a result, his claim is without merit.

2

The defendant next claims that the court’s instructions “failed to inform the jury that the state was required to prove, beyond a reasonable doubt, the two elements of causation—actual and proximate cause.” We disagree.

Significantly, the court adopted in large measure the defendant’s request to charge on the issue of causation. That request to charge stated in relevant part: “The fourth element [that the state must prove] is that the defendant caused serious physical injury to another person. This means that the defendant’s conduct was the proximate cause of the person’s injuries. You must find it proved beyond a reasonable doubt that [the victim] was injured as a result of the actions of the defendant. The state must prove beyond a reasonable doubt that the defendant proximately caused the injuries. Proximate cause does not necessarily mean the last act or cause, or the act in point of time nearest to the injuries. The concept of proximate cause incorporates the principle that an accused may be charged with a criminal offense even though his acts were not the immediate cause of the injury. An act or omission is the proximate cause of the injury when it substantially and materially contributed, in a natural and continuous sequence, unbroken by any efficient intervening cause, to the injuries. It is a cause without which the injuries would not have occurred. It is a predominating cause, a substantial factor from which the injuries followed as a natural, direct and immediate consequence. The state must prove beyond a reasonable doubt that there was no intervening cause of [the] victim’s injuries. An intervening cause exists where the defendant’s conduct is a cause and factor of the injuries, but nonetheless something else subsequently occurs—which may be an act of some other person that does more than supply a concurring or contributing cause of the injury. An intervening cause is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct. In such a case, the defendant’s conduct is not the proximate cause of the injuries.”

The court’s instruction incorporated all but the last three sentences of that requested charge, which addressed the issue of intervening cause. The alleged defect in the court’s instruction advanced in this appeal—the failure to specifically instruct on actual cause—likewise plagues the defendant’s request to charge. “The term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. . . . [Our Supreme Court] has found induced error undeserving of appellate review in the context of a jury instruction claim when the defense has affirmatively requested the challenged jury instruction . . . .” (Citations omitted; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 468-69, 10 A.3d 942 (2011). “[T]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Gibson, 270 Conn. 55, 67, 850 A.2d 1040 (2004). The defendant in the present case induced the alleged error of which he now complains. Indeed, defense counsel specifically stated at the conclusion of the court’s charge: “No exceptions. I mean, I submitted a request to charge. Your Honor’s instructions tracked that fairly closely but just to the extent it was different I’ll take an exception. I don’t think it’s required, but no additional matters to be heard.”

3

As a final matter, the defendant maintains that the court improperly instructed the jury on the doctrine of intervening cause. The court’s instruction mirrors the model criminal jury instruction from the judicial branch website, as discussed in part I of this opinion. Examination of the court’s instruction reveals that it quotes from, and comports with, the explication of that doctrine set forth by our Supreme Court in State v. Munoz, supra, 233 Conn. 124-25. Accordingly, the defendant’s challenge is unavailing.

D

In sum, the defendant’s various claims alleging evidential, prosecutorial and instructional impropriety are not convincing. Mindful of the broad discretion afforded to the trial court in determining whether the granting of a postjudgment motion for a new trial is warranted; see State v. Guilbert, supra, 306 Conn. 271; we cannot conclude that the court in this case abused that discretion in denying the defendant’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       Green testified that when the medical responders first attempted to secure the victim on the scene, they placed a collar around his neck to stabilize his spine and “cut the back of his shirt and rolled him onto a board.”

       The victim identified his attacker as “Bozo.” Doszpoj searched a database of aliases and nicknames maintained by the Bridgeport police department, which identified the defendant as Bozo. At trial, the defendant testified that Bozo was his nickname “since I been bom.”

       To be clear, the defendant in this appeal does not dispute the fact that the victim suffered a serious physical injury. He claims only that the state failed to prove that he caused that injury.

       The defendant also asserts that evidential insufficiency warranted the granting of his motion for a new trial, a claim we already have rejected.

       The court ruled that the defendant’s other convictions were inadmissible, as they either were “too remote” or involved crimes classified as misdemeanors.

       That constitutional analysis entails consideration of the Williams factors, as outlined in State v. Stevenson, 269 Conn. 563, 573-75, 849 A.2d 626 (2004).

       See State v. Ledbetter, 275 Conn 534, 575, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 536 (2006).

       The defendant on appeal specifically contends that “[t]he trial court made no mention of actual cause in the jury instructions, the state’s burden regarding it, or actual cause in relation to proximate cause. . . . [It] was defective in that it did not differentiate between actual and proximate cause, and did not indicate that the state’s burden was to prove both actual and proximate cause.”


author: BEAR, J.

text:
    STEPHANIE H. DICKINSON v. STEPHEN J. DICKINSON
    (AC 35012)
    Robinson, Bear and Keller, Js.
    Argued April 15
    officially released June 4, 2013

      Stephen J. Dickinson, pro se, the appellant (defendant).

      Jeffrey D. Ginzberg, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, Stephen J. Dickinson, appeals from the judgment of the trial court granting the motion for contempt filed by the plaintiff, Stephanie H. Dickinson. On appeal, the defendant claims that the court improperly found him in contempt because (1) he, after having filed a pro se appearance, had not been notified of the pending motions for contempt or the ready markings and (2) there was no evidence that he was in contempt of the court’s orders. We agree with the second claim and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to our review. The plaintiff and the defendant previously were married and have one child issue of that marriage. The court rendered a judgment of dissolution on September 17, 2004. The parties share joint legal custody of their child, with primary physical custody awarded to the plaintiff. On May 2, 2012, the court, Hon. James G. Kenefick, Jr., judge trial referee, over the plaintiffs objection, granted the defendant’s request that the child have an additional overnight visit with him on Tuesdays. The court also ordered at that time that the plaintiff was to have final decision-making authority on the child’s medical, psychological, education, religious and extracurricular activities, but only after she made a good faith effort to reach an agreement with the defendant on each disputed issue. Judge Kenefick further ordered that the plaintiff “shall consider [the defendant’s] concerns and where possible try not to schedule activities that interfere with [the defendant’s] parenting time, particularly on Tuesday and Thursday during the school year.”

On July 5, 2012, the plaintiff filed a postjudgment motion for contempt, alleging that the defendant was in violation of the May 2, 2012 orders of the court in that he refused to allow their child to attend a karate tournament on June 30, 2012, refused to allow their child to attend a Memorial Day parade and refused to allow their child to attend boy scout meetings on the second Tuesday of each month. On July 18, 2012, the plaintiff filed another motion for contempt, alleging that the defendant was preventing their child from attending religion classes on Tuesdays. Both motions were certified to counsel of record, but it does not appear that either motion was certified to the defendant, who had filed a pro se appearance on December 14, 2007, in addition to the appearance of his attorney.

The court, Gould J., held a hearing on the motions for contempt on August 8, 2012. Initially, the defendant was not in the courtroom when the matter was called, and the plaintiffs attorney and Attorney Lynn Ann Pelle-grino agreed to continue the matter. Before they exited the courthouse, however, the defendant, but not his attorney, appeared, and the parties returned to the courtroom. When the court recalled the case, the plaintiffs attorney explained that the motions for contempt addressed the defendant’s noncompliance with the plaintiffs decisions on religious and extracurricular activities during Ms parenting time. The court conducted a brief hearing at wMch it heard argument from the plaintiffs attorney, along with comments from Pel-legrino and from the defendant, who was representing himself. No evidence was offered by either attorney or by the defendant in the form of sworn testimony or other evidence. Thereafter, the court granted the plaintiffs July 18, 2012 motion, wMch alleged that the defendant was in contempt for having prevented their child from attending religion classes on Tuesday nights, thus finding the defendant in contempt of Judge Kenefick’s May 2, 2012 orders. The court also ordered the defendant to abide by the plaintiffs decisions and to pay $500 toward her attorney fees. TMs appeal followed.

The defendant claims in relevant part that the court improperly found him in contempt without any evidence having been presented to support such a finding of fact. We agree.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. ... An order of the court must be obeyed until it has been modified or successfully challenged.” (Internal quotation marks omitted.) Parlato v. Parlato, 134 Conn. App. 848, 850, 41 A.3d 327 (2012). “We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the defimte and firm conviction that a mistake has been made. . . . The trial court’s findings are binding upon tMs court unless they are clearly erroneous in fight of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) Gravius v. Klein, 123 Conn. App. 743, 749, 3 A.3d 950 (2010).

“[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful. ... [A] contempt finding is not automatic and depends on the facts and circumstances underlying it. . . . In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.” (Citations omitted; internal quotation marks omitted.) Parisi v. Parisi, 140 Conn. App. 81, 85-86, 58 A.3d 327, cert. granted on other grounds, 308 Conn. 916, 64 A.3d 329 (2013); see Edmond v. Foisey, 111 Conn. App. 760, 768-73, 961 A.2d 441 (2008) (court improperly violated defendant’s right to due process when it did not afford full hearing on issues raised in motions for contempt).

In the present case, the court found the defendant in wilful contempt without having been presented with any competent evidence by the plaintiff as to whether he was in noncompliance with Judge Kenefick’s May 2, 2012 orders or by the defendant as to whether there was an excusable reason for any such noncompliance. The court heard argument from counsel and some protestation from the defendant, who was representing himself. During the hearing, no evidence was presented to the court. Unsworn representations of counsel are not evidence, and, as we held in Kelly v. Kelly, 54 Conn. App. 50, 60, 732 A.2d 808 (1999), “[t]he trial court’s finding of contempt based on the unsworn representations of counsel was improper.” Accordingly, we conclude that the court clearly erred as to each finding it made in the absence of any competent evidence, and it thus abused its discretion in finding the defendant in contempt. “A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding. ... A finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony.” (Citation omitted; internal quotation marks omitted.) Lynn v. Lynn, 130 Conn. App. 319, 329, 23 A.3d 771 (2011); see Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994); see also Kelly v. Kelly, supra, 60.

The judgment is reversed, the August 8, 2012 orders issued by the trial court are vacated, and the case is remanded with direction to hold an evidentiary hearing on the plaintiffs July 18, 2012 motion for contempt.

In this opinion the other judges concurred.

       Because we agree with the defendant’s second claim, we conclude that it is unnecessary to address his first claim.

       A copy of a family relations report that was completed on April 5, 2011, for an earlier court proceeding, states that the plaintiffs husband is the co-den leader of the child’s cub scout pack and that the pack meets twice per month on Wednesdays. Because no evidence was presented to the trial corut, the record contains no explanation of the apparent change in meeting days.
      The plaintiffs counsel additionally argued to the trial court that the defendant was interfering with the child’s karate class, which he stated also took place on each Tuesday and Thursday. The defendant, however, argued that the karate class was on each Monday and Wednesday and that he did not have the child on those days. The April 5, 2011 family relations report also states that the karate class takes place on each Monday and Wednesday. Again, because there was no evidence presented to the trial court, there is no explanation for the discrepancy.

       It is clear from the transcript of the hearing that the plaintiffs attorney did not seek to have an evidentiary hearing on August 8, 2012, a motion calendar day. He represented to the court that there were “two very short matters. One is amotion for contempt, and the other is a motion for contempt . . . .” Prior to proceeding on August 8, in the absence of the defendant, the court had marked the motions over to September 7, 2012, a nonmotion calendar day, but, when the defendant appeared, with the court’s permission, the plaintiffs attorney proceeded on that motion day.

       The parties and the court refer to Attorney Pellegrino as the guardian ad litem for the minor child, which is supported by the order of the court, dated November 18,2010, contained in the Appellate Court file. The Superior Court case detail sheet, however, lists Pellegrino as the attorney for the minor child, and the record prepared for this appeal also lists her as counsel for the minor child and further states that there has been no appointment of a guardian ad litem. Because these roles can be quite distinct, we point out the discrepancy in the case detail sheet. “Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests.” (Internal quotation marks omitted.) Ireland v. Ireland, 246 Conn. 413, 439, 717 A.2d 676 (1998). “As an advocate, the attorney should honor the strongly articulated preference ... of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long term best interests, psychologically or financially.” Newman v. Newman, 235 Conn. 82, 96, 663 A.2d 980 (1995).


text:
    JOSEPH GAYMON v. COMMISSIONER OF CORRECTION
    (AC 33901)
    Lavine, Beach and SchaUer, Js.

      Argued March 14
    officially released June 4, 2013

      David B. Rozwaski, assigned counsel, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

This is the appeal of the petitioner, Joseph Gaymon, from the judgment of the habeas court rejecting his claims that his trial counsel rendered ineffective assistance and that the trial court was without jurisdiction to sentence him after he pleaded guilty to one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). These claims arise from an exchange that occurred immediately after the petitioner had been sentenced, in which the clerk of the court sought to clarify which charging document was operative, a three count short form information or a four count long form information, and which charges should be nolled. The petitioner raises two claims on appeal: that his trial counsel was ineffective because he failed to appreciate the significance of the purported confusion over which information was operative, and that because both charging documents were supposedly nolled, he pleaded guilty to an invalid information. We reject the petitioner’s attempt to capitalize oh fleeting administrative confusion and, accordingly, affirm the judgment of the habeas court denying his amended petition for a writ of habeas corpus.

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate prejudice; that is, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Ham v. Commissioner of Correction, 301 Conn. 697, 704, 23 A.3d 682 (2011) (“[a] court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier”). The petitioner’s claim is that he thought he was pleading guilty under the long form information, which was ultimately withdrawn, not the short form information. There is no dispute, however, that the petitioner intended to plead guilty to a violation of § 21a-278 (b), which was the first count on both informations. Therefore, the petitioner cannot show that the result of the proceeding would have been different if he was sentenced pursuant to one information instead of the other. The petitioner’s related ineffective assistance claim is based on the allegation that his trial counsel’s failure to recognize this supposed error during the plea canvass deprived him of the opportunity to have the charges against him dismissed. This claim is also unavailing. Even if all of the counts on both informa-tions were mistakenly nolled as the petitioner claims, the state would not have been precluded from initiating a new prosecution based on the same criminal transaction and certainly would have done so. See Practice Book § 39-31 (allowing prosecutor to initiate new case against defendant after nolle prosequi is entered). Thus, the petitioner cannot show that, but for his counsel’s allegedly “unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 694.

The petitioner’s second claim is that the court was without jurisdiction to sentence him because a valid charging document was not in existence by the conclusion of the plea canvass. This contention, however, was rejected as a factual matter by the habeas court as well as the court that ruled on the petitioner’s motion to correct an illegal sentence. See Milner v. Commissioner of Correction, 63 Conn. App. 726, 735, 779 A.2d 156 (2001) (habeas court’s factual findings not disturbed by this court unless they are clearly erroneous).

The judgment is affirmed.

       Pursuant to Practice Book § 39-29, “[a] prosecuting authority shall have the power to enter a nolle prosequi in a case.”

       “The effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy.” State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981).