text:
    JEAN MARC POLICIER v. COMMISSIONER OF CORRECTION
    (AC 22680)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Submitted on briefs September 19
    officially released October 28, 2003

      David B. Rozwaski, special public defender, filed a brief for the appellant (petitioner).

      Kevin T. Kane, state’s attorney, and Michael L. Regan, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jean Marc Policier, appeals following the denial by the habeas court of his petition for certification to appeal from its judgment dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that his trial counsel had provided effective assistance. Specifically, he argues that his trial counsel was ineffective in failing (1) to communicate properly with the petitioner during pretrial proceedings, (2) to call alibi witnesses requested by the petitioner, (3) to advise him properly of his immigration issues and (4) to advise him properly of the charges against him, thereby rendering his plea involuntaiy. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On December 19, 1997, the petitioner, a citizen of Haiti residing legally in the United States, was arrested and charged with narcotics violations. At the time of his arrest, the petitioner was on probation for a prior offense. Attorney Robin Watkins was appointed as the petitioner’s special public defender.

The petitioner initially denied the charges and claimed that he had been arrested due to mistaken identity. On June 3, 1998, Watkins informed the court that the petitioner wanted to exercise his right to a jury trial. A discussion then ensued, and the petitioner subsequently entered a guilty plea, pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to a charge of having violated General Statutes § 21a-277 (b). The petitioner also admitted to a violation of his probation, which the court terminated. After a detailed canvass, the court accepted the petitioner’s plea. On August 12, 1998, the petitioner was sentenced to ten years imprisonment, execution suspended after three years, followed by a conditional discharge for three years.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different. White v. Commissioner of Correction, [58 Conn. App. 169, 170, 752 A.2d 1159 (2000)], citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . .” (Citations omitted; internal quotation marks omitted.) Payne v. Commissioner of Correction, 62 Conn. App. 583, 584-85, 772 A.2d 630 (2001); see also Austin v. Commissioner of Correction, 61 Conn. App. 547, 549-50, 764 A.2d 1288, cert. denied, 257 Conn. 906, 777 A.2d 686 (2001).

In the present case, the habeas court found that Watkins, upon being appointed to represent the petitioner, examined the petitioner’s file from the office of the public defender, and obtained the police report and all other documents contained in the prosecutor’s file. She testified that she had reviewed those materials with the petitioner, had met with him six to eight times and that possible defenses were discussed. The court found her testimony to be credible. Furthermore, the court found that the petitioner had failed to provide Watkins with the necessary information to investigate potential witnesses. Additionally, the court found that it was clear from all the evidence that the petitioner was aware of the possibility of deportation. The possibility of deportation was specifically raised during the canvass of the petitioner. Finally, the court found that the petitioner was made fully aware of his decision to plead guilty pursuant to the Alford doctrine, particularly in light of the thorough and detailed canvass conducted by the trial court.

After thoroughly reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612.

The appeal is dismissed.

       The prior offense involved a conviction for having a weapon in a motor vehicle, in violation of General Statutes § 29-38. As a result of that conviction, the Immigration and Naturalization Service, pursuant to 8 U.S.C. § 1227 (a) (2) (C), commenced deportation proceedings against the petitioner.

       General Statutes § 21a-277 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned . . .

       At the sentencing hearing, the petitioner informed the court that he never sold drugs. Furthermore, in the presentence investigation, the petitioner again raised the issue of mistaken identity. The court stated that it was inclined to give the petitioner a trial. The petitioner, however, stated that he feared a conviction with a longer sentence and refused a jury trial.

       “The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators." (Citation omitted; emphasis added; internal quotation marks omitted.) Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID PALMER
    (AC 22712)
    Foti, Schaller and Dupont, Js.
    Argued September 15
    officially released October 28, 2003

      Michael A. D’Onofrio, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, David Palmer, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that the trial court improperly refused to charge the jury, as requested, on the issue of self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 22, 1999, at approximately 8:30 p.m., Susan DeFrancesco drove her car to a bank in Bridgeport, where she attempted to use the bank’s automated teller machine. Patrick Kelley was a passenger in her car. DeFrancesco discovered that the automated teller machine was not functioning. As she returned to her car, the defendant approached and gave her directions to another automated teller machine at a bank on Boston Avenue. DeFrancesco drove to that location and entered the bank lobby while Kelley remained in the car. While DeFrancesco was accessing the automated teller machine, the defendant entered the bank lobby and, after she completed her transaction, pressed a sharp object against her back. The defendant demanded that DeFrancesco give him the money that she was holding, three $20 bills. A struggle ensued as the defendant tore parts of the bills from DeFrancesco’s grip. The defendant, carrying the tom currency, ran from the bank lobby.

Kelley, still waiting in the car, saw the defendant run out of the bank and heard DeFrancesco’s screams. The circumstances convinced Kelley that the defendant had robbed DeFrancesco, and Kelley tried to prevent the defendant from fleeing the scene. A straggle ensued between Kelley and the defendant, and the defendant stabbed Kelley with a screwdriver, leaving Kelley to feel what he described as “quite a bit of pain” in his back. The defendant broke away from Kelley and ran to a car. Kelley ran to the car and, again, attempted to stop the defendant from leaving. Kelley grabbed the defendant through the open window of the car. Kelley relinquished his grasp only after the defendant quickly accelerated the vehicle, causing Kelley to fall away from the vehicle and tumble onto the pavement of the parking lot.

At trial, the defendant requested that the court instruct the jury on the issue of self-defense and to consider whether his actions were justified. The court determined that the evidence presented at trial did not warrant the instruction and declined to deliver it. The defendant claims that the court “erred in failing to give [his] requested jury charge . . . and thus deprived [him] of his right to due process and [his right to] present a defense.” The defendant’s claim is without merit.

“We first set forth the relevant standard of review for a claim of instructional error. When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established mies of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Betances, 265 Conn. 493, 509-10, 828 A.2d 1248 (2003).

“In determining whether the defendant is entitled to an instruction of self-defense, we must view the evidence most favorably to giving such an instruction.” State v. Lewis, 245 Conn. 779, 812, 717 A.2d 1140 (1998). Even after viewing the facts in the light most favorable to the defendant, we must conclude that there exists no justification under the facts and circumstances as presented in the matter for the court to have found that he was entitled to an instruction on self-defense. The defendant, who bore “the initial burden of producing sufficient evidence to inject self-defense into the case”; (internal quotation marks omitted) State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991); has failed to satisfy that burden. “To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense.” (Internal quotation marks omitted.) State v. Carter, 232 Conn. 537, 545, 656 A.2d 657 (1995). In this case, the defendant did not sustain his initial burden, minimal though it was, of injecting sufficient evidence so as to raise such a doubt in the minds of the jurors.

Furthermore, we are mindful that a “ ‘trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.’ ” State v. Campbell, 225 Conn. 650, 659, 626 A.2d 287 (1993), citing States. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972). The court properly omitted the requested instruction because there was no support in the evidence for the issue of self-defense.

The defendant has cited to several cases that he asserts support his claim that the court improperly refused to deliver the requested instruction. Suffice it to say that we have reviewed the cases cited and find them to be distinguishable factually. In those cases, the facts were sufficient to require a self-defense instruction by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the charged crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The state also entered a nolle prosequi as to the charge of failure to appear in the first degree in violation of General Statutes § 53a-172.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       In addition to hearing testimony from DeFrancesco and Kelley about these events, the jury heard testimony from an eyewitness, Robert Marcantonio. The jury reasonably could have found that Marcantonio had observed the defendant struggling with DeFrancesco and heard DeFrancesco scream, “Help me, I’m being robbed.” Marcantonio also saw Kelley and the defendant struggling, saw the defendant make a stabbing motion to Kelley’s neck area with a screwdriver, saw Kelley pursue the defendant and saw Kelley being dragged briefly by the defendant’s car while the defendant was driving away from the bank. Marcantonio also informed a police officer on patrol and alerted him to the events that were transpiring.

       The defendant requested that the court instruct the jury that the evidence in the case raised the issue of sell-defense and that the state bore the burden of disproving the defense beyond a reasonable doubt. The defendant’s requested charge included language from General Statutes § 53a-19, as well as instructions as to how the jury should evaluate the defendant’s conduct and beliefs insofar as they related to the defense.
      The defendant’s written request fell short of the requirements set forth in Practice Book § 42-18. The request did not contain either a citation of authority on which it was based or a statement of the evidence that justified the self-defense instruction. Despite those deficiencies, we nevertheless choose to review the claim.

       The defendant conceded during oral argument before this court that he did not claim, nor was any evidence presented, that Kelley had used either excessive or unnecessary force against him. We need not determine, therefore, whether a self-defense instruction is required where the evidence demonstrates that the person who had apprehended or attempted to apprehend a suspected robber who appeared to be fleeing the crime scene had used such degree of force.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. SAMUEL HOOKS
    (AC 23208)
    Lavery, C. J., and McLachlan and Dupont, Js.

      Argued September 11
    officially released October 28, 2003

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John P. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Samuel Hooks, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for two and one-half years. On appeal, the defendant claims that the court (1) denied him his rights to due process of law by failing to provide notice as to the manner in which he violated the conditions of probation, (2) improperly found him to be in violation of probation because there was insufficient evidence of a violation, (3) abused its discretion by failing to consider the beneficial purposes of probation and (4) improperly restricted his constitutional right of allocution during sentencing. We affirm the judgment of the trial court.

The relevant facts adduced at the probation revocation hearing are as follows. On April 20,1995, the defendant pleaded guilty to carrying a pistol without a permit in violation of General Statutes § 29-35. The court sentenced him to five years imprisonment, execution suspended after two and one-half years, and three years probation. On October 16,1997, the defendant was discharged from custody and his probation commenced. The conditions of probation required the defendant to refrain from violating any criminal law.

Officer Dean Reynolds of the New Haven police department testified that on October 29, 1999, he was patrolling Dixwell Avenue when he saw two individuals on a street comer engaged in what he “believed to be a hand-to-hand narcotics transaction.” Reynolds testified that he saw the defendant put a clear plastic bag in his pants pocket. The defendant saw Reynolds and “took off on his bike . . . riding at a high rate of speed . . . looking over his shoulder to see if [Reynolds] was in pursuit.” Reynolds yelled for the defendant to stop, but he did not.

The defendant rode his bike to the rear of the house at 221 Henry Street, then got off it and ran away. The pursuit continued and Reynolds caught him. The defendant wrestled Reynolds to the ground, punched him in the stomach three times and attempted to choke him. The defendant eventually broke free and ran to the house at 221 Henry Street; Reynolds reached him as he closed the front door. The defendant repeatedly closed the door on Reynolds, smashing his arm from the “elbow down to [the] fingers . . . .” Aided by other officers, Reynolds finally removed the defendant from behind the door. Still resisting, the defendant “was violently trying to hit” the officers with “a closed fist”; one punch struck Reynolds in the chin. Reynolds testified that this punch “caused [him] pain and discomfort for a couple of minutes.”

The defendant was subdued and placed under arrest. A search incident to the arrest revealed “a little plastic baggie with some kind of wet substance in it” in one of his pockets. The substance was turned over to the state toxicology laboratory for analysis, which confirmed that it was phencyclidine. An arrest warrant for violation of probation was issued on the application of a probation officer. The defendant was arrested on December 8, 1999, and charged with a violation of his probation on the basis of the probation officer’s affidavit, which indicated that the defendant had failed to comply with the probation requirement not to violate any criminal laws and had been arrested on charges of possession of a controlled substance, possession of a controlled substance within 1500 feet of a school, assaulting a police officer and interfering with police.

At the probation revocation hearing, the court found, by a preponderance of the evidence, that the defendant had assaulted a police officer and illegally possessed a controlled substance, thereby violating the statutory condition of his probation. The defendant offered no evidence in his behalf. In his allocution, he insisted that the charges were false, as was the entire testimony of Reynolds. The court revoked the defendant’s probation and sentenced him to serve the two and one-half years in custody that had been suspended. This appeal followed.

“In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of his probation. . . . This court may reverse the trial court’s finding that a defendant violated the terms of his probation only if such finding is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Verdolini, 76 Conn. App. 466, 468, 819 A.2d 901 (2003).

I

The defendant first claims that he was denied his rights to due process of law because the state failed to follow certain statutory requirements in charging him with violation of probation. Specifically, he contends that the state never provided notice as to the manner in which he violated the conditions of probation, as mandated by General Statutes § 53a-32 (a).

In State v. Pierce, 64 Conn. App. 208, 214, 779 A.2d 233 (2001), the defendant argued that he had not received notice of any basis for the revocation of his probation beyond the specified charges. This court stated that at the defendant’s violation hearing, “testimony was offered concerning the entire incident, and, thus, the defendant was made aware, both before and during the hearing, of the evidence [in support of the charges].” Id., 215. This court concluded that recitation of the particular charges, both before and during the hearing, was sufficient notice to the defendant. Id. In addition, “[w]here criminal activity forms the basis for the revocation of probation, the law imputes to the probationer the knowledge that further criminal transgressions will result in a condition violation and the due process notice requirement is similarly met.” State v. Reilly, 60 Conn. App. 716, 728, 760 A.2d 1001 (2000).

In this case, the condition of the defendant’s probation was that he would not violate any criminal law; the manner in which he violated that condition was through the commission of criminal offenses. Section 53a-32 (a) requires the state to inform the defendant of those charges once before the court. The arrest warrant application, dated November 24, 1999, specified the condition of probation and the particular charges that formed the basis of the charge of violation of probation. At both the defendant’s arraignment on December 8, 1999, and the probation revocation hearing on June 18, 2001, the state reiterated those charges. Those recitations satisfied the demands of § 53a-32 (a). We therefore conclude that, as the state complied with the specified statutory requirements in charging the defendant with violation of probation, his due process rights were not denied.

II

The defendant next claims that there was insufficient evidence to support a violation of the conditions of probation. A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. See Aubin v. Miller, 64 Conn. App. 781, 796, 781 A.2d 396 (2001). A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence “when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Azia v. DiLascia, 64 Conn. App. 540, 558, 780 A.2d 992, cert. denied, 258 Conn. 914, 782 A.2d 1241 (2001).

A

The defendant first argues that there was insufficient evidence to support the court’s finding that he assaulted an officer. The record reveals that on October 29,1999, the defendant (1) wrestled an officer to the ground as the officer was attempting to handcuff the defendant, (2) punched the officer in the stomach three times, (3) attempted to choke the officer, (4) repeatedly closed a door on the officer’s arm and (5) punched the officer in the chin with a closed fist. In neither the revocation heatings nor the oral argument before this court or in his submitted brief does the defendant deny having made such physical contact with the officer. Rather, the defendant, on appeal, argues that the pain element of assault was not proven.

General Statutes § 53a-167c, in relevant part, requires a showing that the defendant, “with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties . . . causes physical injury to such peace officer . . . .” General Statutes § 53a-3 (3) defines physical injury as “impairment of physical condition or pain

Reynolds testified at the revocation hearing that the punch to the chin “caused [him] pain and discomfort for a couple of minutes.” The defendant maintains that this testimony effectively was impeached when the officer conceded that he never sought medical treatment, had not listed himself as a victim in the police report or initiated an injury investigation and had not missed any subsequent time from work. Thus, the defendant maintains that Reynolds’ testimony was both unreliable and insufficient to support a finding that an assault occurred.

The weight to be given the evidence and the credibility of witnesses, however, “are solely within the determination of the trier of fact.” State v. Rollins, 51 Conn. App. 478, 485, 723 A.2d 817 (1999). Having heard both the officer’s testimony and the defendant’s cross-examination, the court issued its ruling:

“I will also make a finding that during the course of the officer’s legitimate duties, he was assaulted by the defendant, and I have reviewed the statute as far as assault on a police officer is concerned. It does require physical injury, not serious physical injury. Physical injury is pain. The officer’s definition of injury may be different than the statutory definition. Certainly, his testimony here today established that there was physical injury in accordance with the statute.” The evidence clearly supports the court’s finding that the defendant engaged in conduct that constituted assault under § 53a-167c.

“In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). A finding of the commission of a criminal act is sufficient to support a revocation of probation. Id. Thus, the court’s finding that the defendant assaulted an officer is sufficient to support the revocation of probation.

B

The defendant also argues that there was insufficient evidence to support the court’s finding that he illegally had possessed the narcotic phencyclidine in violation of General Statutes § 21a-279 (a). Specifically, the defendant contends that the evidence before the court was insufficient because the state never introduced the PCP into evidence and failed to establish an adequate chain of custody between the narcotic and the defendant. We disagree.

Contrary to the defendant’s assertions, the state is not required to produce the narcotic as evidence. In State v. Cosgrove, 181 Conn. 562, 585-86, 436 A.2d 33 (1980), our Supreme Court held that possession may be established by adequate circumstantial evidence, such as toxicological reports and testimony by toxicologists and police officers. Here, the court was presented with such evidence. Carol Hassett, a toxicologist, testified; her report was admitted into evidence. Reynolds testified that he observed the hand-to-hand transaction that precipitated the events of October 29, 1999.

Hassett and Reynolds testified as to the following events. Reynolds testified that during a search incident to the defendant’s arrest, “a little plastic baggie with some kind of wet substance in it” was found in one of the defendant’s pockets. Police case number 68403 was assigned to that evidence, which then was turned over to the state’s toxicology laboratory for analysis. Has-sett’s testimony that number 68403 was assigned at the laboratory, and her description of the substance matched that of Reynolds. Her testimony and the toxicology report confirmed that the substance was phency-clidine. The report also named the defendant as the source of the substance.

“The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. ... In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, supra, 51 Conn. App. 484. In arriving at its decision, the court is entitled to draw reasonable and logical inferences from the evidence. State v. Verdolini, supra, 76 Conn. App. 469. The court had before it sufficient evidence to support its finding, by a fair preponderance, that the defendant illegally had possessed phencyclidine. The court’s finding was not clearly erroneous.

Ill

The defendant next claims that the court abused its discretion by failing to consider the beneficial purposes of probation. We disagree.

Once the court found that the terms of probation were violated and revoked the defendant’s probation, impliedly, the court found that the beneficial purposes of probation no longer were being served. See State v. Carey, 228 Conn. 487, 495, 636 A.2d 840 (1994). Thus, the court impliedly evaluated whether the beneficial purposes of probation no longer were being served and concluded by implication that they were not.

“We review the sufficiency of the evidence to support this implied finding by determining whether the state provided sufficient evidence so that, had the trial court explicitly found that the beneficial purposes of probation were no longer being served, that is, [the defendant’s] rehabilitation and the protection of society, were no longer being served ... it would not have abused its discretion. ... In making this . . . determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. DeMasi, 34 Conn. App. 46, 55, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994).

General Statutes § 53a-32 (b) provides in relevant part that revocation shall not be ordered “except upon consideration of the whole record . . . .” The record reveals that the defendant’s underlying conviction was for possession of a pistol without a permit. He had been placed on probation on three separate occasions. Furthermore, the probation officer testified that “[m]y conclusion is [that he has] been very lucky to receive these periods of probation. ... I believe he’s a threat not only to himself, but to the community.” Moreover, the court found, by a preponderance of the evidence, that the defendant had assaulted a police officer and illegally possessed a controlled substance. Those findings alone were sufficient to support the revocation of probation. Cf. Payne v. Robinson, supra, 10 Conn. App. 403. Upon review of the whole record, we conclude that the court’s implied finding that the beneficial purposes of probation no longer were being served was not an abuse of its discretion.

IV

The defendant’s final claim is that the court improperly restricted his procedural right of allocution during sentencing in violation of Practice Book § 43-10 (3). We disagree.

The defendant requests that we review his unpre-served claim under the plain error doctrine. See Practice Book § 60-5. “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. McDuffie, 51 Conn. App. 210, 216-17, 721 A.2d 142 (1998), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

A defendant possesses the procedural right to address the court personally at the time of sentencing in the dispositional phase of a probation revocation hearing if he requests to speak. See State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997); see also Practice Book § 43-10 (3). The court, however, has no affirmative duty to inquire of a defendant whether he wants to address the court personally. State v. Valedon, 261 Conn. 381, 383, 802 A.2d 836 (2002). In this case, the transcript indicates that the court provided the defendant with a fair opportunity to speak on his behalf and that he did so. Before imposing sentence, the court stated, “I want your client to have an opportunity to speak on his own behalf, if he wishes.” The defendant then spoke and insisted that the charges were false, as was the entire testimony of Reynolds. Only after the defendant’s remarks did the court proceed to the sentencing phase of the hearing.

We conclude that the defendant’s right to an allocution was not infringed by the court. To the contrary, the defendant took advantage of the opportunity to speak that was provided to him. After careful review of the record, we conclude that the court’s conduct did not affect the fairness or integrity of the proceedings, nor did it result in manifest injustice to the defendant. There is no plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 53a-30 (a) (7). Moreover, “[a]n inherent condition of any probation is that the probationer not commit further violations of the criminal law while on probation.” State v. Lewis, 58 Conn. App. 153, 157-58, 752 A.2d 1144, cert. denied, 254 Conn. 917, 759 A.2d 508 (2000).

       The court made no express finding on the charge of interfering with police.

       General Statutes § 53a-32 (a), in relevant part, mandates that “upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .”

       In his allocution, the defendant conceded that he knew he “wasn’t supposed to get arrested . . . .”

       We note that as the condition of probation required the defendant to refrain from violating any criminal law, our determination in part II A provides an adequate basis to affirm the judgment revoking probation.

       The defendant characterizes the right of allocution as constitutional. The right of allocution in Connecticut derives from a rule of practice. There is no Connecticut authority that has recognized a constitutional right of allocution. See State v. Strickland, 243 Conn. 339, 340 n.1, 703 A.2d 109 (1997).

       The defendant stated: “I know I wasn’t supposed to get arrested, but the rest — I mean, the rest of the allegations, they’re not true. I understand that you, by a preponderance, you found me guilty, but, you know, for the crime that I committed back then, I paid my dues. Understand, I did finish my probation, I did finish my probation before, so it’s like a one and one thing here, but all I could say is [that] the accusations that the cop made, they’re all false. I mean, even at the hearing. Okay.”


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. MICKEY MINOR
    (AC 22709)
    Foti, Dranginis and Dupont, Js.

      Argued September 11
    officially released October 28, 2003

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Esehuk, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Mickey Minor, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that (1) the evidence was insufficient to support the conviction, (2) constancy of accusation testimony should have been excluded and (3) he was sentenced improperly to a ten year mandatory minimum term of imprisonment under § 53a-70 (b). We disagree as to all claims and therefore affirm the judgment of the trial court.

From the evidence produced at trial, the jury reasonably could have found the following facts. The victim was seven years old at the time of the alleged offenses. The victim’s mother and the defendant began corresponding while he was incarcerated and first met face to face when he visited her home from January 15 until January 26, 2000, after his release. It was during that visit that the crimes occurred. The victim testified that one night during the defendant’s visit, she was afraid and went to her mother’s bedroom to get into bed there. Her mother, brother and the defendant were asleep in the bed, and the victim got into the bed next to the defendant. The defendant first touched her hand and then he made her touch “his private,” which “felt bony and slimy.” She snatched her hand away, and the defendant tried to put it back, but she did not.

On another occasion, during a game of hide-and-seek with the defendant and the victim’s brother, the victim ran into her brother’s room and closed the door. The defendant was behind the door. He picked her up, unbuttoned her pants, took her underpants down and licked her “private.” He then stuck his tongue in her mouth and, as she was pulling up her pants, asked, “Are you going to tell?” She testified that he ended his visit with the family and left her home later that day. The victim did not immediately tell her mother about those events because she was afraid her mother might get mad at her. She did tell her mother about six months later, according to other testimony and evidence, and she and her mother went to the police station to report the incidents. The victim spoke of the events to a woman at the police station, to a friend of her mother and to Elizabeth Donahue, a physician.

The victim’s mother provided constancy of accusation testimony as to what the victim had told her about the sexual acts. The victim did not testify in court as to the dates on which those events had occurred, but indicated that the incident in bed happened first and that the hide-and-seek incident occurred on the day the defendant left. The mother testified that the bed incident must have happened the day before the defendant ended his stay. The day after the victim told her mother, the victim again recounted the two incidents the next day before they went to the police station. Various medical experts testified or were the subject of exhibits as to the believability of the victim’s accounts of the defendant’s behavior. One such expert, Sidney Horowitz, a clinical psychiatrist, testified that immediate reporting of sexual crimes would be the exception rather than the rule for seven year olds, principally because of fear of being blamed.

I

The standard of review for an insufficiency of the evidence claim involves a two part test. First, the evidence is to be construed in the light most favorable to sustaining the verdict. Second, we must determine whether the jury, from the facts that were found and the reasonable inferences garnered from the evidence, could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

The defendant in his brief makes two underlying assertions as to the sufficiency of the evidence. First, he claims that penetration was not proved. Second, he asserts that the exact time that the crimes took place should have been proved because without that specificity, he was deprived of a potential alibi defense.

Certain definitional criteria will assist us in the analysis of the defendant’s first assertion with regard to sufficiency of the evidence. “Sexual intercourse,” according to General Statutes § 53a-65, means vaginal intercourse, anal intercourse, fellatio or cunnilingus. Penetration is not an essential element of the crime of sexual assault in the first degree when cunnilingus is charged. State v. Wilcox, 254 Conn. 441, 467, 758 A.2d 824 (2000). Therefore, the state did not need to prove that penetration took place for the jury to convict the defendant.

The claim that an instruction or a charging document is nonspecific as to time can impact on a defendant’s sixth amendment right to be informed of the nature of the accusation in some cases. See State v. Orsini, 187 Conn. 264, 274-75, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). The state, however, is not usually required to plead and to prove an exact time when an offense allegedly occurred if the information is sufficiently precise as to the time frame involved. State v. Hauck, 172 Conn. 140, 150, 374 A.2d 150 (1976). In this case, the charging document, the evidence and the court’s jury instruction all made it clear that the events occurred during an eleven day time span and, most probably, over a two day time span.

Although the state has a duty to inform the defendant of the time when an offense allegedly was committed, the state need not choose a particular time if the best information is imprecise. State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). An alibi defense does not create a mandatory requirement that the state limit the time in the information more narrowly than the evidence warrants. Id., 520. In this case, the jury need not have found that the crimes occurred on a specific date or at a specific time, but only that they occurred within the time frame as alleged in the substitute information, which was between January 14 and 26, 2000.

The defendant’s argument that the constancy of accusation doctrine should have prohibited the testimony of the victim’s mother from supplying the date or dates on which at least one of the incidents allegedly happened fails for two reasons. The first reason is that the defendant could be found guilty of the crimes regardless of whether the evidence as to the dates of the crimes indicated that the crimes occurred on a particular date during the days the defendant visited the victim’s home, as long as the evidence indicated criminal occurrences at some time during that time span. Thus, with or without the constancy of accusation evidence, the defendant could be found guilty.

The second reason is that the defendant’s claim is unpreserved, not having been raised at trial, and is a claim that cannot be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because it is an evidentiary claim and not constitutional. See State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996); State v. Senquiz, 68 Conn. App. 571, 581-82, 793 A.2d 1095, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). We conclude that the evidence was sufficient to convict the defendant of the crimes with which he was charged.

II

The defendant next claims that he was sentenced improperly to a ten year mandatory minimum term of imprisonment pursuant to § 53a-70 (b) on his conviction of sexual assault in the first degree. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. The defendant was sentenced to a term of twenty years incarceration, ten years of which were the mandatory minimum, on the conviction of sexual assault in the first degree. Prior to sentencing, the defendant filed a motion to preclude the imposition of the mandatory ten year sentence under § 53a-70 (b) when the victim is younger than the age of ten years. He argues that imposing the mandatory minimum of ten years deprived him of equal protection of the law under the fourteenth amendment to the United States constitution because that ten year sentence constitutes a penalty that exceeds the penalty for a greater offense, namely, aggravated sexual assault in the first degree, for which there is a mandatory minimum sentence of five years.

State v. Gibson, 75 Conn. App. 103, 125-33, 815 A.2d 172, cert. granted on other grounds, 263 Conn. 906, 819 A.2d 840 (2003), resolves the issue, and the defendant cannot prevail on his claim. See also State v. Wright, 246 Conn. 132, 148, 716 A.2d 870 (1998). “[T]he legislature could have reasonably concluded that sexual assault in the first degree against a child is more often and more easily committed, more likely to go undetected for a longer period of time and more likely to recur than an aggravated assault against either an adult or a child.” State v. Gibson, supra, 131.

The legislature, when it provides for criminal penalties, is entitled to conclude that general deterrence is better served by a harsher penalty for one crime as opposed to another. A harsher sentence may be necessary to deter sexual assault in the first degree against a child, which may be more prevalent but less easily discovered than aggravated sexual assault, which usually requires immediate police action when it occurs. The sentence may more effectively deter a crime that is difficult to discover. We conclude that the sentence imposed did not violate the defendant’s constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The substitute information charged in count one that “on a date between approximately January 14, 2000, and approximately January 26, 2000, in the Town of Naugatuck, the defendant (whose date of birth is April 8, 1963) engaged in sexual intercourse, to wit cunnilingus, with another person (hereafter L.C.) whose date of birth is July 23, 1992, and who was, therefore under the age of thirteen at the time and more than two years younger than the defendant.”

       Counts two and three of the substitute information alleged risk of injury to a child. The information charged in count two that “on a date between approximately January 14, 2000, and approximately January 26,2000, in the Town of Naugatuck, the defendant had contact with the intimate parts of a child under the age of sixteen years, to wit, he touched said child (hereafter L.C.) whose date of birth is July 23, 1992 and who was, therefore, under the age of sixteen on her genitals in a sexual and indecent manner likely to impair the morals of said child.”
      Count three charged that “on a date or dates between approximately January 14,2000, and approximately January 26,2000, in the Town of Nauga-tuck, the defendant subjected a child under the age of sixteen years to contact with his intimate parts, to wit, he had said child (hereafter L.C.) whose date of birth is July 23, 1992 and who was, therefore, under the age of sixteen at the time, touch his penis in a sexual and indecent manner likely to impair the morals of said child.”

       It is not certain from the defendant’s brief whether he is challenging his conviction of all three counts or of sexual assault in the first degree only. In the trial court, his motion for a judgment of acquittal at the close of the state’s case challenged the latter count of the information only. We treat his claim as involving all three charges.

       The defendant’s argument as to insufficiency of the evidence hinges on the alleged improper use of constancy of accusation testimony to prove the time of the crime or to prove that the crimes, in fact, occurred. Accordingly, the first two claims are discussed together. See part I.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       Counts two and three did not allege penetration, and the state therefore was not required to prove that penetration occurred to convict the defendant of risk of injury to a child.

       A similar case recently decided by this court, as to which certification to appeal was granted, is distinguishable from this case. The state’s petition for certification to appeal was granted by our Supreme Court in State v. Gibson, 75 Conn. App. 103, 815 A.2d 172, cert. granted, 263 Conn. 906, 819 A.2d 840 (2003), limited to the following issue: “Did the Appellate Court properly conclude that the conviction on the third and fourth counts must be set aside on the ground of constitutional error in the court’s jury instructions?” State v. Gibson, 263 Conn. 906, 819 A.2d 840 (2003).
      The conviction in Gibson was set aside by this court because of the trial court’s failure to give a limiting instruction as to prior misconduct evidence involving the same victim and the same crime one or two years prior to the date in the information, together with a jury instruction asserting that it was sufficient for the state to prove that the crime had been committed at any time prior to that exact date. State v. Gibson, supra, 75 Conn. App. 121. We concluded that the defendant was deprived of a constitutional right. Id., 118-21.
      That holding, even if it eventually is reversed by our Supreme Court, does not affect the conclusion in this case that the state did not need to plead and to prove that the crime occurred on a specific date during the time interval between the two dates alleged in the information.

       The constancy of accusation doctrine allows a witness to whom the victim of a sex crime has confided the details of the crime to testify in court about what the victim told the witness as an aid in assessing the credibility of the victim. The doctrine is not strictly an exception to the hearsay rule because the testimony is not admitted to prove the truth of the testimony of the witness. The doctrine is now limited in Connecticut to allow testimony only as to the fact and timing of the victim’s complaint or as to details necessary to associate the victim’s complaint with the pending charge, for example, the time and place of the attack or the identity of the defendant. Other testimony of a witness who was the confidante of the victim is limited to corroboration of the victim’s testimony, but cannot be used for substantive purposes. State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc).

       General Statutes (Rev. to 1999) § 53a-70 (b), as amended by Public Acts, Spec. Sess., June, 1999, No. 99-2, § 49, provides: “Sexual assault in the first degree is a class B felony for which two years of the sentence imposed may not be suspended or reduced by the court or, if the victim of the offense is under ten years of age, for which ten years of the sentence imposed may not be suspended or reduced by the court, and any person found guilty under this section shall be sentenced to a term of imprisonment and a period of special parole pursuant to subsection (b) of section 53a-28 which together constitute a sentence of at least ten years.”

       The crimes occurred in 2000. General Statutes (Rev. to 1999) § 53a-70a (b), as amended by Public Acts, Spec. Sess., June, 1999, No. 99-2, § 50, which was then applicable, provides in relevant part: “Aggravated sexual assault in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court . . . .”

        General Statutes § 53a-70a (b) was amended, effective October 1, 2002, to provide that if the victim of an aggravated sexual assault is younger than sixteen years of age, the crime is a class A felony. See Public Acts 2002, No. 02-138 (P.A. 02-138), § 6.
      The current version of General Statutes § 53a-70a (b), subsequent to its amendment by P.A. 02-138, provides in relevant part: “Any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court, except that, if such person committed sexual assault in the first degree by violating subdivision (1) of subsection (a) of section 53a-70 . . . and the victim of the offense is under sixteen years of age, twenty years of the sentence imposed may not be suspended or reduced by the court. Any person found guilty under this section shall be sentenced to a period of special parole pursuant to subsection (b) of section 53a-28 of at least five years.”

       The defendant in Gibson also filed a petition for certification to appeal, which was denied. State v. Gibson, 263 Conn. 906, 819 A.2d 840 (2003).

       General Statutes § 53a-70a (a) provides: “Aperson is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense (1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon, (2) with intent to disfigure the victim seriously and permanently, or to destroy, amputate or disable permanently a member or organ of the victim’s body, such person causes such injury to such victim, (3) under circumstances evincing an extreme indifference to human life such person recklessly engages in conduct which creates a risk of death to the victim, and thereby causes serious physical injury to such victim, or (4) such person is aided by two or more other persons actually present. No person shall be convicted of sexual assault in the first degree and aggravated sexual assault in the first degree upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”


author: PER CURIAM.

text:
    JUAN PEREZ v. COMMISSIONER OF CORRECTION
    (AC 23630)
    Schaller, DiPentima and McLachlan, Js.
    Submitted on briefs September 19
    officially released October 28, 2003

      James M. Fox, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, James M. Ralls, assistant state’s attorney, and Herbert E. Carlson, Jr., senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Juan Perez, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The court granted the petition for certification to appeal filed by the petitioner. On appeal, the petitioner claims that his trial counsel provided ineffective assistance by failing to ensure that his plea of guilty to murder in violation of General Statutes § 53a-54a (c) was voluntary. We affirm the judgment of the habeas court.

The court found the following facts that are relevant to the petitioner’s appeal. The petitioner previously had been convicted of assault on his wife, the victim in this case, and a protective order had been issued requiring him to stay away from her. The petitioner and the victim had been married since 1976 and had three children. Several days before the event that gave rise to the petitioner’s conviction, the petitioner had a conversation with a male friend who admitted to him that he was having an affair with the victim. On January 28, 1989, the petitioner went to the apartment where his wife and children lived. He confronted the victim, who admitted that she was having an affair with the petitioner’s friend. The petitioner told the children to say goodbye to their mother and to go outside. He then stabbed the victim twenty-one times, causing her death. The petitioner left the scene and drove to Hartford, where he turned himself into the police. He subsequently gave a written statement to members of the New Britain police department, confessing to the murder.

The petitioner was arrested and charged with murder and other crimes. On July 16, 1990, he pleaded guilty to murder with the right to argue for less than the forty years incarceration that the state would recommend that the trial court impose. The petitioner was sentenced to thirty-eight years in the custody of the respondent commissioner of correction on September 27, 1990.

On March 27, 2000, the petitioner filed a petition for a writ of habeas corpus and filed an amended petition on May 9, 2001. In his petition, he alleged that his counsel had rendered ineffective assistance by failing to consider the defense of extreme emotional distress and the mitigating effects of intoxication on the element of intent to commit murder. Following a hearing on October 30 and 31, 2001, the court denied the petition, concluding, in part, that the petitioner was not a credible witness, as his testimony conflicted with the evidence contained in exhibits and the testimony of credible witnesses.

The court also found that the petitioner’s claim that his counsel failed to investigate the defense of extreme emotional distress lacked merit, as the petitioner had been evaluated by a psychologist and a psychiatrist whose reports did not mention extreme emotional distress. The court also found that the crime was premeditated. On the basis of the testimony offered by individuals who saw and who spoke with the petitioner on the day of the crime and at the time of his confession, he was not intoxicated. On the basis of its factual findings, the court concluded that the petitioner had failed to prove that his counsel’s assistance was ineffective or that there was a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. See Strickland v. Washington, 446 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“The standard of review of a habeas court’s denial of a petition for a writ of habeas corpus based on ineffective assistance of counsel is well settled. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must . . . show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. [Id., 687], ... To establish prejudice, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) James v. Commissioner of Correction, 74 Conn. App. 13, 16-17, 810 A.2d 290 (2002), cert. denied, 262 Conn. 946, 815 A.2d 675 (2003). “For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. [Id., 59] . . . .” (Citation omitted; internal quotation marks omitted.) State v. Lopez, 77 Conn. App. 67, 80 n.17, 822 A.2d 948, cert. granted on other grounds, 265 Conn. 903, 829 A.2d 421 (2003).

“Generally, [t]he conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Citation omitted; internal quotation marks omitted.) Tabone v. Commissioner of Correction, 79 Conn. App. 71, 75, 829 A.2d 112 (2003).

On the basis of our review of the parties’ briefs and the record of the habeas trial, we conclude that the findings of the court are supported by the facts that appear in the record and are not clearly erroneous. Furthermore, we conclude that the court’s conclusion that the petitioner was not deprived of his constitutional right to the effective assistance of counsel was legally and logically correct.

The judgment is affirmed.

       The petitioner pleaded guilty pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


author: FLYNN, J.

text:
    VINCENT RUSSO v. COMMON COUNCIL OF THE CITY OF MIDDLETOWN ET AL.
    (AC 23380)
    Flynn, Bishop and Mihalakos, Js.
    Argued May 27
    officially released November 4, 2003

      Paul D. Buhl, for the appellant (plaintiff).

      Timothy P. Lynch, deputy city attorney, for the appel-lees (defendants).
   Opinion

FLYNN, J.

The plaintiff, Vincent Russo, appeals from the trial court’s dismissal of his application for a writ of mandamus against the defendants, the common council and the mayor of the city of Middletown, for lack of subject matter jurisdiction due to mootness. The plaintiff claims on appeal that the court improperly denied his request for relief because although his claim is con-cededly moot, it falls under the “capable of repetition, yet evading review” exception to the mootness doctrine, and, therefore, his claim is justiciable. In support of this claim, the plaintiff argues that the court improperly found that (1) the exception to the mootness doctrine — “capable of repetition, yet evading review” — did not apply and (2) the ability of citizens to petition for a referendum on the Middletown city budget was an adequate remedy at law. We are not persuaded by the plaintiffs arguments as to the first issue and, thus, affirm the trial court’s judgment that it lacked subject matter jurisdiction.

The court found the following facts, which are not in dispute. The plaintiff, a resident and taxpayer of the city of Middletown, brought an action against Middle-town’s common council and the mayor of Middletown, Domenique S. Thornton, claiming that the defendants improperly reduced the net taxable grand list for the 2000-2001 budget year by $46 million, thereby increasing the city’s mill rate and raising taxes for Middletown residents. The reduction in the grand list of $46 million was intended to compensate for lost revenue to the city arising from the elderly and disabled property tax relief program, which is governed by General Statutes § 12-170aa et seq. The plaintiff claimed that this grand list reduction was illegal because the tax reduction benefits given to elderly and disabled taxpayers, pursuant to § 12-170aa et seq., were repaid to the city by the state, which resulted in the city annually collecting over $1.3 million more than was needed to fund the budget. In addition, the plaintiff claimed that the amount of the grand list reduction, $46 million, was inaccurate because, even if it is assumed that the city properly reflected a reduction in the grand list to account for this tax relief, the reduction should have amounted to approximately $10,050,000, and, therefore, the $46 million reduction was “arbitrary, capricious and an abuse of discretion.” The plaintiff sought two separate orders of mandamus: One to compel the defendant common council to publish a corrected 2000-2001 budget using no reductions for the benefits provided to elderly and disabled homeowners pursuant to § 12-170aa et seq. and another to compel the defendants to publish a budget using the net taxable grand list as provided and certified by the tax assessor when submitting and publishing “future budgets.”

The defendants filed a motion to strike the plaintiffs complaint on the ground that no relief could be granted through the issuance of an order of mandamus. The plaintiffs memorandum of law in opposition to the defendants’ motion to strike mentioned in a footnote that “[although following commencement of this litigation the defendants have discontinued this practice, the action remains pending in order to block the city from resuming the practice following termination of the case.” Consequently, the defendants filed a response to the plaintiffs memorandum in opposition, claiming that the plaintiffs action had been rendered moot because the contested practice had ceased and that the action therefore should be dismissed sua sponte for lack of subject matter jurisdiction. The plaintiff thereafter filed a supplemental memorandum, arguing that the action was not moot because the complaint also sought an order for all future budgets to be calculated without using the allegedly improper reductions.

The court heard arguments on the issue of subject matter jurisdiction and held that the claim had been rendered moot. The court recognized that “[sjince the defendants have ceased the practice that the plaintiff complains of, the present factual scenario does render the plaintiffs complaint moot.” In addressing the plaintiffs arguments that the practice could continue in the future, the court stated: “While it is conceivable that the defendants could resume the practice, if that were to occur, the plaintiff may challenge that budget by the means provided in the Middletown city charter. The plaintiffs action is presently moot, and while the practice is ‘capable of repetition,’ it does not ‘evade review.’ ” The Middletown city charter, chapter VI, § 1, provides in relevant part that “[w]ithin 15 calendar days following the passage of a budget, the electorate of the City shall have the power to challenge the budget by means of a referendum as provided in this Charter.” Chapter III, § 7, provides in relevant part that “[i]f within the period of fifteen calendar days after publication in some newspaper with general circulation in the City of Middletown of such . . . budgetary resolution ... a written petition, containing the signatures of at least five percent of the electors of the City and protesting any such enactment by the Common Council shall be filed with the City/Town Clerk, such . . . budgetary resolution . . . shall be suspended .... If it shall not be entirely repealed [by the common council], the Council shall . . . submit it to a vote of the electors affected by it . . . .”

We conclude that the court was correct in holding that the plaintiffs action was no longer justiciable due to mootness. However, we do not adopt the reasoning employed by the court in reaching that holding. The appropriate judicial avenue to the relief sought, rather than the political avenue provided in the Middletown city charter, prevents the plaintiffs claims from evading review. Furthermore, the plaintiff has not asserted any facts or arguments that demonstrate that the challenged practice is “capable of repetition.”

We begin by setting forth the appropriate standard of review of a finding of mootness, which is well settled under our law. “Mootness is a question of justiciability . . . .” Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Id., 766-67. Mootness is connected to the first factor of justiciability, that there be a live controversy at all stages of the litigation. Id., 767. “Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Schiavone v. Snyder, 73 Conn. App. 712, 716, 812 A.2d 26 (2002). “The test for determining mootness is not [w]hether the [plaintiff] would ultimately be granted relief .... The test, instead, is whether there is any practical relief this court can grant the appellant.” (Internal quotation marks omitted.) In re Amelia W., 62 Conn. App. 500, 505, 772 A.2d 619 (2001).

In the present case, the plaintiff, via an application for a writ of mandamus, sought an order “compelling the defendant Common Council to publish a corrected 2000-2001 budget using no reduction in assessments for credits under the Connecticut Elderly Property Tax Relief Act . . . .” The plaintiff also sought a similar order for all future budgets. As the plaintiff conceded in his memorandum in opposition to the defendants’ motion to strike, however, “the defendants have discontinued this practice . . . .” There was, therefore, no longer a live controversy, and the plaintiffs claims became moot.

An exception to the mootness doctrine exists, however, when the case presents a claim that is “capable of repetition, yet evading review.” See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In Loisel, our Supreme Court set forth in detail the analysis used in evaluating the applicability of that exception, initially noting that the otherwise moot question must meet three requirements to qualify for review: “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., 382-83.

We address the Loisel factors beginning with the third factor, which relates to public importance. See id., 382. We recognize that the manner in which taxes are levied in municipalities is of some public importance. The public importance factor is, thus, satisfied. As our Supreme Court recognized in Loisel, however, “[s]heer public importance . . . cannot remedy a failure to satisfy the other components of the [mootness exception] doctrine.” Id., 387.

We turn now to the first factor set forth in Loisel. It embodies the “evading review” aspect of the exception. The relevant inquiry is whether the nature of the claim presents a “functionally insurmountable time [constraint]” or the challenged action has an “intrinsically limited lifespan.” Id., 383. If so, then it follows that the majority of cases presenting the same question will be rendered moot, and the question never will be resolved. In the present case, the plaintiff argues that the defendants’ conduct is of a limited life span in that “the defendants are free to resume the practice in the next budget, collect millions in unnecessary taxes and then drop the practice again when challenged in court, only to resume it when the new action for mandamus is dismissed.” It is apparent that the plaintiff is arguing that the postcomplaint conduct of the defendants, rather than anything inherent in the budget process itself, could make his claim have a functionally insurmountable time constraint. The plaintiff in this regard misconstrues the meaning of “evading review.” We reiterate the language of our Supreme Court: “[T]he challenged action, or the effect of the challenged action, by its very nature must be of a limited duration . . . .” Loisel v. Rowe, supra, 233 Conn. 382. The challenged action in the present case was the manner in which the defendants calculated the Middletown grand list. The plaintiff has made no argument as to the intrinsically limited life span of the Middletown budget process itself.

The plaintiffs argument as to the “evading review” factor is wholly without merit in that every civil action considered by a court could “evade review” according to the plaintiffs definition. In every cause of action, if a defendant chose to end the dispute by complying with the plaintiffs demand, the plaintiff could claim that the defendant could change its mind once the action had become moot. That is not the scenario protected by the “capable of repetition, yet evading review” exception to the mootness doctrine. It is not the defendant’s conduct that makes a challenged action “evade review.” The question is whether the challenged action itself has an intrinsically limited life span or would impose a “ ‘functionally insurmountable time [constraint]’ Wallingford v. Dept. of Public Health, supra, 262 Conn. 770 n.12; upon a potential plaintiff. “[T]he ‘capable of repetition, yet evading review’ rule reflects the ‘functionally insurmountable time constraints’ present in certain types of disputes.” Id. Medical treatment disputes, such as refusals to accept blood transfusions because of religious beliefs; see Stamford Hospital v. Vega, 236 Conn. 646, 654—55, 674 A.2d 821 (1996); provide examples of cases involving “ ‘functionally insurmountable time constraints ....’” Wallingford v. Dept. of Public Health, supra, 770 n.12; Loisel v. Rowe, supra, 233 Conn. 383.

We observe that the trial court held that the plaintiffs claim would not evade review because, if the defendants decided to pass a subsequent budget using the method the plaintiff alleged was improper, “the plaintiff may challenge that budget by the means provided in the Middletown city charter.” The Middletown city charter provides taxpayers a mechanism to appeal an annual budget. Although we agree that the plaintiffs claim does not evade review, we do not adopt the reasoning of the trial court in that regard. The issue of whether the plaintiff has an adequate remedy at law or equity would determine whether mandamus was the proper remedy; see Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 535-36, 450 A.2d 369 (1982); but is not pertinent to a resolution of whether a challenged action had an intrinsically limited life span so as to evade review. Loisel v. Rowe, supra, 233 Conn. 383. The nature of the plaintiffs claim does not present a functionally insurmountable time constraint and, therefore, it does not evade review.

The second factor in determining whether a claim may be reviewed, although technically moot, is whether it is “capable of repetition.” Under Loisel, this analysis requires two primary inquiries: “(1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation.” Id., 384. There is no dispute that the plaintiff, who is a resident and taxpayer of the city of Middle-town, adequately represents the interests of persons likely to be affected by this case. However, the plaintiffs argument fails under the first inquiry set forth by Loisel regarding whether the claim is “capable of repetition.”

Although the defendants have not conceded that their method of establishing the mill rate was improper, there likewise is no indication that there is a reasonable likelihood the defendants plan to use that method in the future. The plaintiff claims that the defendants had carried on that practice for years, and, therefore, it is “entirely possible that it will be resumed and will again have an impact on the plaintiff . . . .” (Emphasis added.) However, Loisel does not provide an exception to the mootness doctrine when it is merely possible that a question could recur, but rather “there must be a reasonable likelihood that the question presented in the pending case will arise again in the future . . . .” (Emphasis added.) Loisel v. Rowe, supra, 233 Conn. 382. When the conflict between the parties has been resolved to the extent that no immediate relief may be granted, the bare fact that the resolution does not eternally preclude the conduct from arising again does not except the claim from being rendered moot. See Darien v. Estate of D’Addario, 258 Conn. 663, 679-80, 784 A.2d 337 (2001) (“town’s argument that the referendum outcome does not preclude it from revisiting the issue simply means that if and when the town does revisit the issue, there will be a case in controversy for our consideration at that time”); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 254, 440 A.2d 310 (1982) (“[w]e are not entitled to assume that there will be a strike, accompanied by similar picketing, in the future even though the appellant claims otherwise”); Peart v. Psychiatric Security Review Board, 41 Conn. App. 688, 693, 678 A.2d 488 (1996) (“[w]hile the issue of whether the board must accept the testimony of expert witnesses may arise in the future, there is not a strong likelihood that a substantial majority of cases raising this issue will become moot before appellate litigation can be concluded”). Therefore, the plaintiff has failed to demonstrate that his claim is “capable of repetition” as that phrase has been described in Loisel and in cases that apply it with regard to the mootness doctrine.

We conclude that the plaintiffs claim is moot and not “capable of repetition, yet evading review” under our law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The common council of the city of Middletown is the legislative body of the city, holding authority under the Middletown city charter.

       The plaintiff also sought attorney’s fees, costs and “such other and further relief as the court deems just and equitable.” If the plaintiff had sought damages arising out of his claim, the issue before us may have been decided differently. See Hallas v. Windsor, 217 Conn. 689, 692, 587 A.2d 149 (1991) (“while cessation of allegedly unconstitutional or illegal activity may render moot a claim for injunctive relief, such cessation will not render moot a case that also states a claim for damages resulting from such activity prior to its cessation”). However, since the plaintiff has made no claim for damages, we decide this claim solely on the basis of the equitable relief sought.

       Although the motion before the court was a motion to strike, “[o]nce the question of lack of jurisdid ion of a court is raised, [it] must be disposed of no matter in what farm, it is presented, . . . and the court must fully resolve it before proceeding further with the case.” (Emphasis added; internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn. App. 306, 307, 763 A.2d 1055 (2001).

       Even if we were to find that this case was not moot, the plaintiffs claim regarding “future budgets” would fail nonetheless due to the impossibility of the remedy sought by the plaintiff. The plaintiffs complaint sought a writ of mandamus to prohibit the use of the grand list reduction in all future budget years. However, a mandamus cannot run indefinitely into the future. A writ of mandamus enforces a complete and immediate right, the existence of which is uncontested. Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990); Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). There is no guarantee that the Middletown city charter’s budgetary provisions will remain the same because the electors of Middletown are free to amend the charter. There is likewise no guarantee that the present state formulae for reimbursing municipalities for lost revenues under the elderly and disabled property tax relief program will remain constant. In fact, experience teaches us that because state revenues rise and fall, state expenditures, including grants to municipalities, also rise and fall. However, even if we presume that the current conditions will remain the same, that is, the charter and § 12-170aa et seq. will have the same effect, a declaratory judgment could protect the plaintiffs interests in the future.

       Chapter VI, § 1, of the charter provides in relevant part that “[wjithin 15 calendar days following the passage of a budget, the electorate of the City shall have the power to challenge the budget by means of a referendum as provided in this Charter.”

       As the defendants initially pointed out in their motion to strike, mandamus was not the proper avenue, in the plaintiffs own words, to “compel the defendants ... to stop making an improper reduction in the value of the Middletown Grand List before calculating the mill rate.” (Emphasis added.) The proper method to enjoin a person’s allegedly improper actions is via an injunction. See General Statutes § 52-471 et seq. “A prohibitory injunction is an order of the court restraining a party from the commission of an act.” Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994). In contrast, a writ of mandamus is proper when die plaintiff has a clear legal right to compel the performance of a duty. Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980). A mandamus will not properly lie where the plaintiff seeks to establish a right; it cannot act upon a doubtful and contested right. Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). In the present case, although the plaintiff claims that the defendants had a duty to calculate the municipal mill rate on the basis of the full grand list, there is nothing in the Middletown city charter that assigns such a duty. Further, the plaintiff has not cited any Connecticut statute that specifically imposes such a duty on the defendants. The plaintiff ultimately seeks the mill rate to be determined in a manner that he claims is proper. Therefore, the plaintiff is actually attempting to establish a right to have the mill rate determined in that way, not to enforce a right that he already has. Although the plaintiff may disagree with the manner in which the defendants determined the mill rate, unless they simply failed to determine a mill rate at all, mandamus is an improper remedy. See Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, supra, 718-19.