author: BISHOP, J.

text:
    BRENDA JACKSON v. NARENDRA TOHAN
    (AC 29459)
    Bishop, Robinson and West, Js.

      Argued February 3
    officially released April 21, 2009

      Daniel Jonah Krisch, with whom were Karen L. Dowd and, on the brief, Vincent M. DeAngelo and Alexandra M. Greene, legal intern, for the appellant (plaintiff).

      Michael D. Neubert, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Brenda Jackson, appeals from the summary judgment rendered by the trial court in favor of the defendant, Narendra Tohan, on the ground that the plaintiffs claims were not timely filed within the two year statute of limitations under General Statutes § 52-584. On appeal, the plaintiff claims that the court improperly decided the factual issue concerning when she had actual or constructive knowledge that she had sustained actionable harm. We agree and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts and procedural history. On October 24, 2003, the plaintiff underwent an exploratoiy laparotomy, lysis of adhesions, excision of a right ovarian cyst and partial right oophorectomy at New Britain General Hospital. The surgery was performed by Leena Shah, a gynecologist. The defendant, also a gynecologist, assisted Shah in the surgery.

Soon after the surgery, the plaintiff began to experience severe pain and other symptoms inconsistent with a successful surgery. Within a few days of the operation, the plaintiff was informed by another physician that an exploratory laparotomy was necessary because of a suspicion that her bowel had been cut during the surgery. The plaintiff underwent this second procedure on October 29, 2003, during which the physicians discovered that the plaintiffs bowel had in fact been injured during the earlier surgery. The plaintiff underwent an emergency third surgery on October 30, 2003.

The plaintiff remained in the intensive care unit of New Britain General Hospital until late November, 2003. The plaintiff testified that by November, she knew that something “had been done wrong” during her first surgery. Additionally, the plaintiff had been told by the physicians who repaired her bowel that whoever performed the first surgery had “messed up.” During the period of time between November, 2003, and February, 2004, the plaintiff was transferred back and forth between New Britain General Hospital and the Hospital for Special Care in New Britain and was heavily medicated. Although the plaintiffs boyfriend told her that she had met with an attorney in November, 2003, the plaintiff did not recall doing so until February, 2004.

In February, 2004, the plaintiff retained counsel. After obtaining her medical records, she commenced two separate medical malpractice actions, the first, on May 13, 2005, against Shah, and the second, on January 25, 2006, against the defendant. The defendant filed a special defense alleging that the plaintiffs complaint was barred by § 52-584 because it was not filed within two years of the date of the injury. The defendant thereafter moved for summary judgment on that basis, which the court granted by way of a memorandum of decision filed October 19, 2007. The court found that because the plaintiff knew by November, 2003, at the latest, that someone had “messed up” during her initial surgery, she knew, as a matter of law, that she had suffered actionable harm at that time. The corut concluded that “[tjhere is no material disputed issue of fact concerning the time frame within which the plaintiff first had knowledge that served to put her on notice that her surgeons may have injured her due to their negligence.” The plaintiff then filed a motion to reargue, contending that she did not know, nor could she reasonably have known, of the defendant’s participation in her surgery until she obtained her medical records in February, 2004. The court denied the plaintiffs motion, and this appeal followed.

As a preliminary matter, we set forth “the well settled standard of review for reviewing a trial court’s decision to grant a motion for summary judgment. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 168-69, 947 A.2d 291 (2008).

We next review the law governing the statute of limitations on actions alleging health care malpractice. Section 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . ...” In this case, because there is no question that the plaintiff brought this action within three years of the date of the initial surgery, our focus is on whether she brought this action within two years from the date when she first sustained or discovered her injury or, in the exercise of reasonable care, should have discovered her injury.

“[T]he term injury is synonymous with legal injury or actionable harm. Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action. ... A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm. . . . Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another. ... In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm. . . . Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily a question reserved for the trier of fact.” (Citations omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004).

The plaintiff claims that the court improperly equated her knowledge that “something” had gone wrong during her first surgery with knowledge of actionable harm. The plaintiff also claims that the identity of a potential tortfeasor is an essential element of actionable harm, and, as such, the two year limitations period does not begin to run until a plaintiff has actual or constructive knowledge of that identity. It is undisputed that the plaintiff was told, almost immediately after her surgery, that something had gone wrong during that surgery and that she needed another surgery to repair the resulting problem. The plaintiff was also told in November, 2003, that the physicians who had performed her initial surgery had “messed up.” On this basis, the plaintiff knew or should have known, by no later than November, 2003, that she had sustained an injury as a result of the actions of her health care providers.

Although the plaintiff was aware of the breach of a duty and resulting harm by November, 2003, she claims that she did not know, nor could she reasonably have known, of the defendant’s involvement in her surgery at that time. Our Supreme Court has stated that “the two year statute of limitations set forth in § 52-584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor.” Tarnowsky v. Socci, 271 Conn. 284, 297, 856 A.2d 408 (2004). Although Tarnowsky involved a slip and fall on an icy sidewalk, and was not a medical malpractice case, the Supreme Court did not, in deciding Tarnowsky, distinguish amongst the various causes of action covered by § 52-584. The defendant also does not contend that such a distinction is warranted. The defendant argues, however, that Tarnowsky does not apply in this case because although the plaintiff may not actually have known the defendant’s identity until February, 2004, she reasonably should have.

The defendant’s argument is based on the fact that the defendant is clearly listed as the assisting surgeon on the operative report, which was transcribed and available to the plaintiff as early as October 29, 2003, and, therefore, the plaintiff should have known, through the exercise of reasonable care, that the defendant assisted in her surgery. In this regard, the defendant relies heavily on Peerless Ins. Co. v. Tucciarone, 48 Conn. App. 160, 708 A.2d 611 (1998). In Peerless Ins. Co., the tenants of a commercial property and their insurance carriers brought an action against the defendant commercial property owners, who impleaded and brought a product liability claim against the manufacturer of a defective lighting product that had caused a fire on the property. Id., 162. The manufacturer claimed that the action was barred by General Statutes § 52-577a because the owners had raised their claims more than three years after the occurrence of the fire. The trial court agreed and rendered summary judgment in favor of the manufacturer. Peerless Ins. Co. v. Tucciarone, supra, 163. This court affirmed the judgment of the trial court on the ground that the record established that the owners reasonably could have discovered the cause of the fire and the identity of the manufacturer before the expiration of the statute of limitations because the fire marshal’s report, issued soon after the fire, contained that information. Id., 167.

We believe that the present case is distinguishable from Peerless Ins. Co. Here, the plaintiff testified at her deposition, without contradiction, that she was not informed that the defendant would be assisting in her surgery and that she did not receive any care from the defendant after her surgery. Although the plaintiff testified that she assumed that there would be other medical professionals in the operating room assisting Shah, she stated that she did not know of the defendant’s involvement. Although the operative report was available to the plaintiff soon after her initial surgery, she was continuously hospitalized and heavily medicated as a consequence of the failed surgery and resulting procedures until February, 2004. The plaintiff contends that her incapacitation during that period of time prevented her from reasonably discovering the defendant’s involvement in her treatment.

The sole inquiry, in this context, is whether, in light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of her injury. See Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805, 817 A.2d 619 (2003). The question of whether the plaintiff reasonably should have obtained that report, or otherwise ascertained the identity of the defendant, prior to February, 2004, in light of her incapacitation for the period of time between her initial surgery and February, 2004, is a question of fact that is not properly decided on summary judgment. This court concluded in Tarnowsky that “[t]he plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it.” Tarnowsky v. Socci, 75 Conn. App. 560, 570, 816 A.2d 728 (2003), aff'd, 271 Conn. 284, 856 A.2d 408 (2004). We reach the same conclusion. The plaintiff in this case is also entitled to her day in court.

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

In this opinion the other judges concurred.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The plaintiffs case against Shah has been settled.

       “There is no relevant distinction, except for a difference in the stated limitation periods, between the discovery language contained in [General Statutes] §§ 52-577a and [52-584].” Tarnowsky v. Socci, 75 Conn. App. 560, 569, 816 A.2d 728 (2003), aff'd, 271 Conn. 284, 856 A.2d 408 (2004).


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NA’IM B.

    (AC 26569)
    Flynn, C. J., and Robinson and Stoughton, Js.

      Argued December 9, 2008
    officially released April 21, 2009

      James B. Streeto, assistant public defender, with whomwas Paul W. Summers, assistant public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of 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 identity may be ascertained. See General Statutes § 54-86e.

   Opinion

STOUGHTON, J.

When this case first came before us, we reversed the judgment of conviction of one count of risk of injury to a child on the ground that the evidence was insufficient to support the verdict of guilty. Upon certification, our Supreme Court concluded that there was sufficient, evidence to support the verdict, reversed this court’s judgment and remanded the case to us for consideration of the remaining claims of the defendant, Na’im B.

The defendant’s remaining claims are that the trial court (1) failed to disclose all relevant material following its in camera review of a file from the department of children and families (department), (2) improperly precluded testimony of a department investigator and (3) improperly precluded evidence of an earlier referral to the department of the victim’s mother. We affirm the judgment of the trial court.

This case arose after the victim, a four month old child, who lived with his parents and two half-brothers, suffered third degree bums inflicted by a hair straightener, or flatiron, to his left hand. The relevant facts are set out in prior decisions in this case by this court and our Supreme Court. See State v. Na’im B., 101 Conn. App. 373, 921 A.2d 679 (2007), rev’d, 288 Conn. 290, 952 A.2d 755 (2008).

The state charged the defendant with two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (l) and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). After a trial by jury, the defendant was found guilty of one count of risk of injury to a child, from which the defendant appeals, and not guilty of the other two counts. Having reviewed the defendant’s remaining claims, we affirm the judgment of the trial court.

I

The defendant first claims that the court failed to disclose all relevant material following its in camera review of a department file and requests that this court review the documents contained in the file to determine if further disclosure is warranted. After reviewing those documents, we disagree with the defendant’s claim.

The victim in this case is the child of the defendant and U, the victim’s mother. See footnote 1. U has two other children, each older than the victim. Prior to January 13, 2003, the date of the incident, U and the other children had had some dealings with the department. Pursuant to a waiver executed by U, the department had provided defense counsel with confidential records for a period of time, commencing on January 13, 2003, through January 22, 2004. The prosecutor, pursuant to General Statutes § 17a-28, obtained copies of the department records concerning the victim dated January 13, 2003, through January, 2005. Those records dated subsequent to January 22, 2004, were sealed and marked as court exhibit one. The court reviewed the records contained in court exhibit one in camera and disclosed some of them to the defendant as exculpatory material.

“Our standard of review in determining whether a court properly conducted an in camera review of confidential records is abuse of discretion.” (Internal quotation marks omitted.) State v. Brisco, 84 Conn. App. 120, 130-31, 852 A.2d 746, cert. denied, 271 Conn. 944, 861 A.2d 1178 (2004). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) State v. Gombert, 80 Conn. App. 477, 498-99, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004).

We conclude that the court did not abuse its discretion. After thoroughly reviewing all of the records contained in court exhibit one as requested by the defendant, we have determined that there are no records containing exculpatory information that were not disclosed to the defense.

n

The defendant next claims that the court improperly precluded certain testimony and that, in doing so, violated his constitutional right to present a defense. We disagree.

During its case-in-chief, the state presented evidence of the defendant’s consciousness of guilt. The proffered evidence established that when the defendant was interrogated by the police, he offered several suggestions as to how the injury to the victim might have occurred. These were that (1) the victim burned his hand on the baseboard heater, (2) the victim’s three year old half-brother had burned the victim with a cigarette lighter, (3) the defendant himself accidentally had burned the victim with a cigarette lighter and (4) the defendant accidentally had burned the victim while warming a baby bottle.

Near the close of the state’s case, the defendant, through counsel, informed the court that he planned to call as his only witness Gloria Rodriguez, a department investigator. The court conducted a hearing on the admissibility of Rodriguez’ testimony. In an offer of proof, the defendant stated that Rodriguez would testify that she visited the residence the day after the incident had occurred and that, while there, the three year old half-brother told her that he had burned the victim with a lighter and pointed to the top and the bottom of his hand to show where the bums were located. She also would testify that, at U’s urging, the child demonstrated that he knew how to use a lighter.

The prosecutor stated that she would object to Rodriguez’ testimony because it was inadmissible hearsay. The defendant replied that it was not hearsay because he was not claiming the testimony for its truthfulness but, rather, to prove that the utterance had been made by the three year old half-brother. The defendant claimed that the fact of the utterance having been made was relevant for two reasons: (1) to rebut evidence that he had made the statement to the police that the three year old half-brother had burned the victim and (2) it was evidence of consciousness of guilt. More specifically, he argued that Rodriguez’ statement was relevant to show that someone other than the defendant had coached the three year old half-brother and that the jury might infer consciousness of guilt on the part of that other person.

The court determined that the statement by itself was too speculative and did not tend to establish either claim. The court suggested that the defendant might call the three year old half-brother as a witness or that he might call other witnesses to establish the context of the proffered testimony and to show who was present and might have had an opportunity to coach the three year old half-brother. The defendant decided thereafter to call no witnesses.

“It is well established that a defendant has a right to introduce evidence that another person committed the offense with which the defendant is charged. . . . Third party suspect evidence is admissible if it directly connects the third party to the crime. ... It is not enough [however] to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.

“[I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person. . . . The trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Francis, 267 Conn. 162, 173-74, 836 A.2d 1191 (2003).

We conclude that the court properly acted within its discretion in refusing to admit the testimony of Rodriguez. We agree that Rodriguez’ testimony, standing alone, was irrelevant because it was not claimed that the half-brother’s statement was true and that, without context, the meaning ascribed to it by the defendant is mere speculation.

Ill

Finally, the defendant claims that the court improperly precluded evidence that U previously had been referred to the department for failure to provide medication for sickle cell anemia to one of the victim’s half-brothers. The defendant claims that his constitutional rights to cross-examine witnesses and to present a defense were violated because the precluded evidence was critical to impeach U’s credibility and also to establish that U was the person who caused the injury to the victim and failed to seek medical attention. We disagree.

At a hearing prior to trial, the defendant, through counsel, moved the court for permission to introduce the following evidence on cross-examination: (1) U was referred to the department in August, 2000, for failing to provide medication for sickle cell anemia to one of the victim’s half-brothers; (2) the department removed the anemic child from U’s custody from November, 2000, to July, 2001; and (3) at the time of the victim’s injuries, U again neglected to provide medical care for the anemic child. The defendant claimed that this evidence was relevant to U’s credibility because it suggested a motive for testifying falsely about her involvement in the injury to avoid losing custody of the victim. He also claimed that it was relevant as tending to show that U had caused the injury to the victim and that she has a pattern of behavior of not caring properly for her children. The prosecutor argued that the evidence was improper because it was too remote in time, would lead to a “trial within a trial” and did not impeach U’s credibility, truthfulness or reliability and because the evidence involved a different child and a different behavior, namely, failing to provide medication versus physical abuse. In addition, the prosecutor asserted that the evidence was not relevant because it did not tend to prove the defendant’s assertion that U was the actual perpetrator of the victim’s injuries. The court subsequently denied the motion in an oral ruling.

At trial, the court, however, did allow the defendant to cross-examine U regarding the status of her children with the department at the time of trial. The defendant’s cross-examination of U revealed that U had an ongoing case with the department, that all her children were in foster care at the time of trial, that she was “working hard” to be in a position to get her children returned to her, that she was “very anxious” to get her children back and that she would not “want to do or say anything that might jeopardize [her] getting [her] children back.”

A

The defendant argues that the preclusion of the proffered evidence, regarding U’s failure to provide medication to one of her other children, negatively impacted his constitutional right to confront witnesses because it was critical to show U’s motive to testify in a manner that would not implicate her in the injury. We disagree.

“The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. ... In determining whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Osimanti, 111 Conn. App. 700, 708, 962 A.2d 129 (2008), cert. granted on other grounds, 290 Conn. 914, 965 A.2d 554 (2009).

“Generally, under the constitutional right to confrontation, a defendant is allowed broad latitude to test the veracity and credibility of the witnesses testifying against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable.” (Internal quotation marks omitted.) State v. Bardliving, 109 Conn. App. 238, 247-48, 951 A.2d 615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008).

We conclude that the evidence relating to U’s failure to provide medication to one of her other children was precluded properly. First, U was never charged with or apparently even suspected of having caused the injury to the victim’s hand. Second, U never accused the defendant of having caused the injury or testified that she knew who had caused the injury or when or how it had occurred. Her testimony was, in effect, that she did not know how the injury had occurred and that she called for assistance as soon as she had discovered it. Evidence that she had not provided medicine to another child, therefore, would not have assisted the jury in assessing the credibility of U’s testimony that she did not know the cause of the injury but called for medical assistance when she discovered it.

Moreover, the court enabled the defendant to cross-examine U on the status of her children with the department. The defendant’s cross-examination disclosed that all of her children were in foster care at the time of trial, that she was working toward their return, that she was anxious to get her children back and that she would not want to do or say anything that may prevent their return. Thus, the court allowed sufficient inquiry into U’s potential bias or motive to lie.

B

The defendant also claims that the preclusion of the proffered evidence showing that U had failed to provide medication for one of her children violated his constitutional right to present a defense because such evidence tends to show that U might have caused the bum to the victim’s hand and failed to seek medical help promptly. We disagree.

“The sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated. . . . Finally, [t]he determination of whether a matter is relevant . . . rests within the sound discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 424-25, 870 A.2d 1039 (2005).

“It is well established that a trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The preferring party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Every 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. Vines, 71 Conn. App. 359, 366, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002).

One difficulty with the defendant’s argument is that no evidence was presented at trial that tended to prove that U had caused the injury. Second, it was U who called for medical assistance. Therefore, we cannot agree that evidence of a failure to provide medication for a medical condition of another child would tend to show that U caused the bum to the victim and failed to obtain medical assistance promptly. Thus, the court did not abuse its discretion in precluding the proffered evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impart the health or morals of any such child . . . shall be guilty of a class C felony . . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 17a-28 (f) provides in relevant part: “The commissioner [of children and families] shall, upon request, promptly provide copies of [confidential] records, without the consent of a person, to . . . (2) the Chief State’s Attorney or the Chief State’s Attorney’s designee, or a state’s attorney for the judicial district in which the child resides or in which the alleged abuse or neglect occurred, or the state’s attorney’s designee, for purposes of investigating or prosecuting an allegation of child abuse or neglect . . . .”

       The potentially exculpatory records released to the defendant were marked as court exhibit la.

       There was no claim that the three year old half-brother, in fact, had caused the injury.

       The defendant argued at the hearing that he was “locked up” during the time that the three year old half-brother was allegedly coached and therefore was incapable of coaching the three year old. No evidence, however, was presented at trial establishing that the defendant was incarcerated or otherwise unavailable to coach the three year old.

       In addition, the proffered evidence was precluded properly on a theory of third party culpability. See State v. Francis, supra, 267 Conn. 174 (“[t]hird party suspect evidence is admissible if it directly connects the third party to the crime” [emphasis in original; internal quotation marks omitted]).


author: PER CURIAM.

text:
    JOHN ALAN SAKON ET AL. v. PEARL MANAGER ET AL.
    (AC 28964)
    Bishop, Gruendel and Berdon, Js.
    Argued January 15
    officially released April 21, 2009

      Jeffrey A. McChristian, for the appellants (plaintiffs).

      Joseph V. Meaney, Jr., with whom was Kyle R. Pav-lick, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The plaintiffs John Alan Sakon and Expressway Associates IV appeal from the summary judgment rendered by the trial court in favor of the defendants Pearl Manager, individually and as executrix of the estate of her husband, Edward Manager; Thomas Manager, Jr.; Jean Manager; and Sandra Manager. The court ruled as a matter of law that the defendants had not violated the terms of a release executed in 1992. We agree and, accordingly, affirm the judgment of the trial court.

The relevant facts are not in dispute. In 1992, the plaintiffs and the defendants were parties to litigation involving a property that the defendants previously had owned and that the plaintiffs wanted to acquire to use for a proposed development. The parties settled their dispute, and they entered into a release agreement (release), which provided, in relevant part: “[The defendants do] remise, release and forever discharge [the plaintiffs] of and from all debts, obligations . . . controversies, suits, actions, causes of actions . . . claims or demands, in law or equity . . . whether known or unknown ... of whatever kind, nature and description . . . which against the [plaintiffs] the [defendants] ever had, now [have] or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of these Presents.”

The plaintiffs brought their action, claiming that the defendants violated the release in that (1) at a public hearing in 2004, they opposed the plaintiffs’ zoning application regarding the property involved in the 1992 dispute and (2) solicited, encouraged and worked with others to oppose the plaintiffs’ zoning application. The defendants moved for summary judgment, claiming that the release did not bar them from commenting on the development of the plaintiffs’ property. In support of their motion, the defendants submitted (1) a release and covenant not to sue signed by the plaintiffs, dated December 31,1992, (2) the release signed by the defendants, dated November 2, 1992, (3) portions of Sakon’s deposition testimony and (4) portions of Sakon’s responses to interrogatories. In opposition to the motion, the plaintiffs submitted an affidavit of Sakon.

We begin our analysis with the standard of review. “The standard of review of decisions granting motions for summary judgment is well settled. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmov-ing party.” (Internal quotation marks omitted.) Lindsay v. Pierre, 90 Conn. App. 696, 699, 879 A.2d 482 (2005).

The dispositive issue on this appeal is whether the release prevented the defendants from opposing the proposed development of the plaintiffs’ property. “It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts. . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994). “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Our case law, however, does not set forth a test by which to determine whether contract language is sufficiently definite to warrant its review as a question of law rather than as a question of fact.” (Citations omitted; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495-96, 746 A.2d 1277 (2000).

In the present case, the release contains language that is unambiguous. It clearly applied to conduct “from the beginning of the world to the date of [its execution]. (Emphasis added.) “The usual general release ... is not ordinarily construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., supra, 231 Conn. 481. The conduct of the defendants that now is at issue took place almost twelve years after the release was executed, and, therefore, the release unambiguously did not apply to it. We conclude, as a matter of law, that the release did not preclude the defendants from opposing the plaintiffs’ subsequent zoning application.

The judgment is affirmed.

       The complaint also named as a defendant Joyce Manager, also known as Mrs. Edward Manager. Joyce Manager was not a party to the motion for summary judgment or this appeal, and reference to the defendants herein does not include her.


author: FLYNN, C. J.

text:
    FRANCIS BORRELLI v. COMMISSIONER OF CORRECTION
    (AC 29238)
    Flynn, C. J., and DiPentima and Arnold, Js.

      Argued January 14
    officially released April 21, 2009

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      Courtney Gates-Graceson, special deputy assistant state’s attorney, with whom were Jo Anne Sulik, senior assistant state’s attorney, and, on the brief, Michael

      Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Francis Borrelli, 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. On appeal, the petitioner claims that the habeas court improperly concluded that (1) by pleading guilty, he had waived the right to assert at his habeas trial a claim of ineffective assistance of trial counsel, (2) he had procedurally defaulted on his claims that (A) the state violated its plea agreement with him when it did not ensure that he receive proper credit for certain presentence confinement and (B) the discharge date established by the respondent, the commissioner of correction, was inconsistent with the plea agreement and (3) even if he had not procedurally defaulted, there was no merit to his claims regarding (A) the plea agreement and (B) the respondent’s calculation of presentence confinement credit. We reverse in part and affirm in part the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. Pursuant to a warrant, on June 4, 2003, the petitioner was arrested and charged with robbery in the third degree in violation of General Statutes § 53a-136 for a crime that occurred at the Liberty Bank in Clinton. At the time of his arrest, the petitioner also was found to be in possession of ten bags of heroin, and, accordingly, he was charged, in a separate docket, with possession of narcotics in violation of General Statutes § 21a-279 (a) (collectively, Middletown cases). He was held in lieu of bond.

On June 20, 2003, the petitioner was arraigned on a violation of probation charge. On October 30, 2003, he was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 and larceny in the third degree in violation of General Statutes § 53a-124 for a crime that occurred at the People’s Bank in New Haven (collectively, New Haven cases). The petitioner remained in custody, held in lieu of bond, on those charges as well as the previous charges.

On December 15, 2003, the petitioner pleaded guilty to robbery in the first degree in the New Haven cases and was sentenced to ten years incarceration, followed by ten years of special parole. He also was sentenced to a concurrent five year term after pleading guilty to violation of probation. The court, Fasano, J., stayed the execution of the sentence until December 17, 2003, so that this sentence could begin on the same date as the anticipated sentence in the Middletown cases. Judge Fasano also stated that the petitioner could request a continuance of the stay if things did not go as planned. Although the petitioner was not sentenced in the Mid-dletown cases on the anticipated date of December 17, 2003, with no request to continue the stay having been filed, Judge Fasano ordered the stay lifted on that date, and the sentence on the New Haven cases began to run. The petitioner was credited with forty-eight days of presentence confinement on the New Haven cases for the period of October 30 through December 17,2003.

On December 23, 2003, the petitioner entered guilty pleas to attempt to commit robbery in the third degree and possession of narcotics in the Middletown cases. The court, O’Keefe, J., sentenced the petitioner to five years incarceration on each count, to run concurrently with each other and with the New Haven sentences.

On December 4, 2006, the petitioner filed a three count amended petition for a writ of habeas corpus alleging ineffective assistance of counsel, a violation of the plea agreement and a miscalculation by the respondent of his confinement discharge date. The habeas court concluded that the petitioner had waived his right to challenge the effectiveness of counsel by pleading guilty to the underlying charges and that he had procedurally defaulted on the other claims because he failed to raise them before the trial court. In the alternative, the habeas court found no merit to those claims. Accordingly, the court denied the petition for a writ of habeas corpus. After the court granted the petition for certification to appeal, the petitioner filed the present appeal.

I

On appeal, the petitioner claims that the habeas court improperly concluded that he had waived the right to assert a claim of ineffective assistance of trial counsel when he pleaded guilty to the underlying crimes, and he asserts that we have the authority to consider the merits of his claim. The respondent concedes that the court’s ruling was improper but argues that the case must be remanded to the habeas court for a proper consideration of this claim. We agree with the respondent.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 62, 951 A.2d 520 (2008).

Under the Strickland standard, when a petitioner alleges ineffective assistance of counsel, he must establish that “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Internal quotation marks omitted.) Id., 63.

“Under the test in [Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). “A reasonable probability is one [that] is sufficient to undermine confidence in the result. ” Ruffin v. Commissioner of Correction, 106 Conn. App. 396, 399, 943 A.2d 1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008).

Here, the court held that the “[petitioner's guilty plea . . . operates as, and constitutes, a waiver of all defects, including any, if at all, that exist regarding the in-court identification.” We conclude, on the basis of much Supreme Court precedent, that a petitioner, who claims that his guilty plea was resultant from counsel’s ineffective assistance, properly may file a petition for a writ of habeas corpus on that ground, and, in this case, the habeas court improperly ruled that the petitioner had waived this claim by pleading guilty. See, e.g., Johnson v. Commissioner of Correction, supra, 285 Conn. 558 (petitioner sought writ of habeas corpus on ground that trial counsel’s ineffective representation caused him to enter Alford plea); Copas v. Commissioner of Correction, 234 Conn. 139, 157, 662 A.2d 718 (1995) (concluding that petitioner sufficiently demonstrated that had trial counsel not been ineffective, petitioner would not have pleaded guilty but would have gone to trial). The petitioner is entitled to have this claim properly reviewed by the habeas court. See Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378 (1993) (remanding to habeas court for determination of whether counsel had been ineffective when petitioner pleaded guilty and convicted), on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995).

II

The petitioner next claims that the court improperly ruled that he had procedurally defaulted on his claims that (1) the state violated the plea agreement by not ensuring that the petitioner received the credit for certain presentence confinement to which he had agreed and (2) the discharge date established by the respondent was inconsistent with the plea agreement. After setting forth our standard of review, we will address each of these in turn.

“When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition alleg[ing] any facts in support of any claim of procedural default ... or any other claim that the petitioner is not entitled to relief. Practice Book § 23-30 (b). If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. Practice Book § 23-31 (a). The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. Practice Book § 23-31 (c).

“In discussing the principles that govern review of a respondent’s affirmative defense that a habeas claim is procedurally defaulted, [our Supreme Court has] recognized that, as a general rule, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule. . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard. . . . A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 567-68.

A

The petitioner argues that the court improperly ruled that he had procedurally defaulted and could not assert a claim that the state had violated its plea agreement by not ensuring that he receive the credit agreed to for certain presentence confinement in violation of Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). The respondent argues that the court properly ruled that the petitioner had procedurally defaulted on this claim. We agree with the respondent.

In his amended petition for a writ of habeas corpus, the petitioner alleged, inter alia, that his guilty pleas were induced by the promise of the state that “his total time incarcerated on all charges and dockets would be ten years.” Pursuant to Practice Book § 23-30, the respondent filed a return to the amended habeas petition in which the respondent raised the affirmative defense of procedural default pursuant to Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001) (“before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to [Practice Book] § 43-22 with the trial court”) and the petitioner’s inability to establish cause and prejudice to excuse the default. The petitioner did not file a reply to the return in accordance with Practice Book § 23-31 (a) alleging cause and prejudice, nor did his petition itself put the allegations of the respondent’s return in dispute.

“A sentence imposed in an illegal manner [within the meaning of Practice Book § 43-22] is one within the relevant statutory limits but . . . imposed in a way which violates [a] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises.” (Emphasis added; internal quotation marks omitted.) State v. Henderson, 93 Conn. App. 61, 67, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006).

As recently reiterated by our Supreme Court, “under Cobham v. Commissioner of Correction, supra, 258 Conn. 38, [a] petitioner first [is] required to raise [a] Santobello claim via a motion to correct an illegal sentence or on direct appeal. As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies.” Orcutt v. Commissioner of Correction, 284 Conn. 724, 737, 937 A.2d 656 (2007). “Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice. . . . [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” (Citation omitted; internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). “[0]nce the respondent raise[s] the defense in [the] return, the burden shift[s] to the petitioner to allege and prove cause and prejudice. [When a] petitioner fail[s] to do so, his claims are procedurally defaulted.” (Emphasis in original.) Id., 490-91.

In this case, the petitioner did not file a motion to correct the sentence, nor did he raise this issue on direct appeal. Furthermore, the petitioner failed to file a reply to the return. On the basis of our clear precedent and the facts of this case, we conclude that the habeas court properly held that the petitioner’s claim that the state failed to adhere to the plea agreement was procedurally defaulted.

B

The petitioner next claims that the court improperly ruled that he had procedurally defaulted and could not assert a claim that the discharge date established by the respondent was inconsistent with the plea agreement and his sentence. The respondent concedes that the court improperly ruled that the petitioner had procedurally defaulted on this claim. We agree that the petitioner could not have procedurally defaulted on his claim that the department of correction (department) had calculated his presentence confinement credit incorrectly.

Because the respondent concedes this issue, and our case law is clear, we need not embark on a detailed analysis. Rather, we simply set forth a statement of the law. When it is the act of the department in applying presentence confinement credit, and not the sentencing proceeding itself, that is the subject of the petitioner’s attack, the habeas court is the proper venue for the petitioner to raise his claims. State v. Carmona, 104 Conn. App. 828, 833, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008); see also State v. Torres, 9 Conn. App. 133, 136, 516 A.2d 1371 (1986) (“defendant’s . . . claim, that he did not receive proper jail time credit, is a proper subject for habeas corpus proceedings rather than review by this court [on direct appeal]”).

Ill

Having determined that the petitioner was not procedurally defaulted from asserting the claim that the respondent incorrectly calculated his presentence credits, we next address the petitioner’s claim that the court improperly ruled, in the alternative, that the respondent accurately calculated the petitioner’s presentence credits. Specifically, the petitioner argues: “[T]he petitioner clearly [pleaded] guilty and was clearly sentenced by the court to a TOTAL term of ten years. The petitioner reasonably believed that the ten year sentence for all the charges would be just that: ten years. However, due to the calculations of the respondent, the petitioner will spend more than the agreed upon ten years in prison.” The petitioner contends that the respondent faded to award him presentence confinement credit on his New Haven sentence dating back to his June 4, 2003 arrest on the Middletown charges. The respondent argues that she properly calculated the petitioner’s presentence confinement credits and could not give him credit for presentence confinement on the New Haven charges dating back to June 4,2003, because he was not arrested on the New Haven charges until October 30, 2003. We agree with the respondent that the petitioner could not receive presentence credit on the New Haven charges for the time preceding his arrest on those charges.

Some statutory and case law background on the issue of presentence confinement credit is helpful to our resolution of the petitioner’s claim. “Section 18-98d governs the issuance of jail credit to prisoners incarcerated prior to sentencing. Subsection (a) creates a right to credit for days spent in prison prior to sentencing. General Statutes § 18-98d (a) (1) provides in relevant part: ‘Any person who is confined . . . under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence equal to the number of days which such person spent in such facility from the time such person was placed in presentence confinement to the time such person began serving the term of imprisonment imposed . . . .’ The statute, however, expressly limits the credit a prisoner may receive because it provides that ‘each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement . . . .’ General Statutes § 18-98d (a) (1) (A). The statute also excludes from this credit any time that a prisoner spends incarcerated for a prior conviction before sentencing on a separate, pending charge. See General Statutes § 18-98d (a) (1) (B). Finally, subsection (c) of § 18-98d charges the respondent with the responsibility for correctly applying presentence confinement credit to a prisoner’s sentence.

“Section 18-98d provides only part of the relevant statutory guidance .... Because a sentencing court may order sentences to be served concurrently, we also must consider the language of General Statutes § 53a-38 (b). That statute provides in relevant part: ‘Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run . . . .’ General Statutes § 53a-38 (b).

“Our case law illustrates the interaction of these statutory provisions, which defines the process by which the respondent calculates a prisoner’s anticipated release date. See, e.g., Hunter v. Commissioner of Correction, [271 Conn. 856, 860 A.2d 700 (2004)]; Cox v. Commissioner of Correction, [271 Conn. 844, 853, 860 A.2d 708 (2004)]; Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988) [en banc], overruled in part on other grounds by Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000). First, the respondent adds the term of the imposed sentence to the date of sentencing to calculate the latest possible release date; then, the respondent applies presentence confinement credit on that docket to reduce the prisoner’s term of confinement by the days that he has been in custody prior to the date of sentencing. Finally, if the prisoner has been ordered to serve multiple sentences concurrently, the respondent then merges the sentences, and the longest sentence controls the prisoner’s anticipated release date.” Washington v. Commissioner of Correction, 287 Conn. 792, 800-801, 950 A.2d 1220 (2008).

Our Supreme Court further explained in Washington that “[i]n Payton v. Albert, supra, 209 Conn. 32, [it had] approved the application of presentence confinement credit, earned simultaneously on multiple charges, to all concurrent sentences imposed on the same day. Although [the Supreme Court] noted [its] approval of this practice, it was not the central issue in Payton. Rather, Payton required [the court] to resolve whether a prisoner may ‘bank’ presentence confinement credit earned in connection with one charge for later application to another, unrelated sentence. . . . [The court] concluded that such application of presentence confinement credit was not permitted under §§ 18-98d (a) and 53a-38 (b). Id., 29-32. In Harris, [our Supreme Court] distinguished Payton from situations in which a prisoner has been ordered to serve concurrent sentences that were imposed on different days. See Harris v. Commissioner of Correction, [271 Conn. 808, 823, 860 A.2d 715 (2004)]. [Our Supreme Court] observed that, ‘[w]hen concurrent sentences are imposed on the same date, as in Payton, the available presentence confinement days have not yet been utilized. . . . Conversely, when concurrent sentences are imposed on different dates, the presentence confinement days accrued simultaneously on more than one docket are utilized fully on the date that they are applied to the first sentence.’ ... Id.

“In Harris, [our Supreme Court] announced for the first time [its] conclusion that § 18-98d (a) prohibits the respondent from crediting multiple sentences, imposed on different days, with the same presentence confinement when a prisoner had been imprisoned simultaneously in multiple dockets. See id. Although [the court’s] decision in Cox was governed by this conclusion, in that case, [it] further determined that once the respondent has applied presentence confinement credit to a prisoner’s first imposed sentence, the credit has been fully utilized. See Cox v. Commissioner of Correction, supra, 271 Conn. 852. Thus, [the court] determined that the statute ‘does not permit’ the respondent to transfer presentence confinement credit, after it has been applied to one sentence, to a subsequently imposed sentence to effectuate the earliest possible release date for the prisoner. Id., 853.” (Emphasis added.) Washington v. Commissioner of Correction, supra, 287 Conn. 802-803.

Although the petitioner in this case argues that the presentence confinement time that he served in the Middletown cases should have been credited to the New Haven sentences, we consider it axiomatic that a petitioner cannot receive presentence confinement credit for confinement that predates the arrest on the charges for which he wants the confinement to be credited. The petitioner argues that Judge Fasano continued the sentencing on the New Haven charges so that the Middletown sentence and the New Haven sentence could run concurrently and that the intent of this was that the presentence confinement credit would be applied to both sets of cases. We simply cannot agree that the outcome would have been any different had the petitioner been sentenced simultaneously on all dockets. This is not a case in which the petitioner was imprisoned simultaneously on multiple dockets for the period of June 4 through October 29, 2003. Rather, he was held during that time only on the Middletown cases. Accordingly, even if the petitioner had been sentenced on all of the charges on the same day, the presentence confinement credit that was earned from June 4 through October 29, 2003, could not be credited to the New Haven charges because the petitioner was not arrested on those charges until October 30, 2003.

We find support for our conclusion in Payton v. Albert, supra, 209 Conn. 32. The issue before our Supreme Court in Payton was whether days of presentence confinement distinctive to one sentence could be transferred to another sentence that was imposed on the same date. See id., 24-25. The petitioner in Payton was arrested on July 22, 1986, in Docket No. CR-6-262088, and he was held in lieu of bail for 113 days, until November 12, 1986. Id., 24, 27. While held in lieu of bail on CR-6-262088, the petitioner in that case also was arrested, on August 28, 1986, in Docket No. CR-6-263741, and he remained in pretrial confinement on that charge as well, until he posted bail on November 12, 1986, seventy-six days later. Id. On January 16, 1987, he pleaded guilty in Docket No. CR-6-262088 and was sentenced to a term of two and one-half years imprisonment. Id. He also pleaded guilty in Docket No. CR-6-263741 that same day, and he received a two and one-half year concurrent sentence on that charge. Id.

Our Supreme Court explained that “[i]n determining the petitioner’s effective release date, the respondent examined the pretrial confinement time in each case. In Docket No. CR 6-262088, the respondent calculated that 113 days of jail time plus a corresponding reduction of thirty-eight days for good conduct (good time) advanced the petitioner’s release date in that case from July 15, 1989, to February 14, 1989. In Docket No. CR 6-263741, the respondent calculated that seventy-six days of jail time plus a corresponding twenty-six days of good time advanced the release date from July 15, 1989, to April 4,1989. Having merged the two sentences and on the basis of the sentence which had the longest to run, the respondent, pursuant to § 53a-38 (b), determined that the actual release date would be April 4, 1989.” Id., 27-28.

Seeking to have the 113 days of presentence confinement credit from Docket No. CR-6-262088 credited to Docket No. CR-6-263741, the petitioner in Payton argued that he was entitled to receive credit for his entire presentence confinement, regardless of which offenses caused the confinement. Id., 27-28. Our Supreme Court rejected his argument, concluding that the plain language and the legislative history of § 18-98d revealed nothing that would indicate that the legislature had “intended to authorize the transfer of jail time credits accrued while in pretrial confinement under one offense to the sentence thereafter imposed upon conviction for another offense.” Id., 31-32.

As our Supreme Court explained in Harris: “When concurrent sentences are imposed on the same date, as in Payton, the available presentence confinement days have not yet been utilized. The respondent thus examines and applies the presentence time served under each docket and then establishes the discharge date by choosing the sentence which has the longest term to run. See General Statutes § 53a-38 (b) (1).” (Emphasis added.) Harris v. Commissioner of Correction, supra, 271 Conn. 823.

We find further support for our conclusion in Cox v. Commissioner of Correction, supra, 271 Conn. 844. The petitioner in the Cox case had been held in lieu of bond simultaneously under two separate dockets, one in Bridgeport and one in Milford, for a period of time. Id., 846. Originally, however, the petitioner was arrested on the Milford matter on July 9, 2001, and held in lieu of bond until December 18, 2001. Id., 848. He then was arrested on the Bridgeport matter on July 30, 2001, and held in lieu of bond until December 18, 2001. Id., 847. The petitioner was sentenced on these matters on different dates, the Bridgeport sentencing occurring first. Id., 848. The petitioner argued that the presentence confinement credit for the time he was held simultaneously on both matters should be credited to both matters. Id., 850. Our Supreme Court did not agree. The court explained that the respondent originally had determined that after applying presentence confinement credit to the Bridgeport sentence, the petitioner’s release date on that sentence was July 29, 2003. Id., 847-48. After applying the presentence confinement credit that was accrued solely in connection with the Milford case to the Milford sentence, which had been ordered to run concurrently with the Bridgeport sentence, the respondent arrived at a release date of January 17, 2004. Id. Pursuant to § 53a-38 (b), the longer of the two sentences, the Milford sentence, became the controlling sentence. Id., 848-49. The petitioner in Cox filed a habeas petition challenging the respondent’s failure to credit both sentences with the presentence confinement credit that had been earned simultaneously in both cases. Id., 850. According to the petitioner’s claim, if the presentence confinement credit had been applied to both sentences, his release date would have been advanced by three and one-half months. Id. Our Supreme Court disagreed with the petitioner and held that the respondent’s original calculations were correct. Id., 853.

What we especially find informative in the Cox case is that despite the majority of the presentence confinement credit being applied to the first sentence, i.e., the Bridgeport sentence, the presentence confinement credit that was attributable only to the Milford sentence, for the time the petitioner had been held from July 9 through July 29,2001, was credited solely to the Milford sentence and not to the Bridgeport sentence. Id., 854.

On the basis of this analysis, we conclude that the habeas court properly determined that the petitioner could not receive presentence credit on the New Haven charges for the time preceding his arrest on those charges.

The judgment is reversed in part and the case is remanded for consideration of the petitioner’s ineffective assistance of counsel claim. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       It is unclear from the record whether the petitioner received any presentence confinement credit on the Middletown sentences for his period of presentence confinement between the dates of June 4 and October 29,2003. He does not raise this as an issue, however.

       The petitioner’s ineffective assistance of counsel claim alleged that counsel had been ineffective in failing to file a motion to suppress the in-court, show-up identification procedure that had resulted in four people positively identifying him in the New Haven robbery, which led to his plea of guilty. Specifically, he argues that “the claim is quite simple. [The petitioner’s] lawyer should have filed a motion to suppress. If that motion were successful, the entirety of the state’s case evaporates, and [the petitioner] would not have [pleaded] guilty . . . .”

       In Santobello, the United States Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, supra, 404 U.S. 262.

       Practice Book § 23-30 provides: “(a) The respondent shall file a return to the petition setting forth the facts claimed to justify the detention and attaching any commitment order upon which custody is based.
      “(b) The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”

       Practice Book § 23-31 provides: “(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.

        “(b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief.
      “(c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition.”

       We find it quite troubling that the respondent took the opposite position before the habeas court, arguing that the petitioner was procedurally defaulted from asserting his claim that the commissioner incorrectly calculated his presentence confinement credit.

       See footnote 1.