text:
    STATE OF CONNECTICUT v. MICHAEL GAY
    (AC 27667)
    Bishop, Beach and Borden, Js.

      Argued March 18
    officially released June 3, 2008

      Michael Zariphes, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Michael Gay, appeals from the judgments of the trial court, rendered following the denial of his motions to withdraw his guilty pleas, convicting him of the crimes of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d, operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a and assault of a public safety officer in violation of General Statutes § 53a-167c. The defendant claims that the court abused its discretion by denying his motions to withdraw his guilty pleas, which were based on alleged ineffective assistance of counsel. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. On the evening of November 16, 2001, the defendant, who was on probation, was sleeping at his girlfriend’s house, when he was awakened by a commotion caused by the victim, his former girlfriend, who had come to the house. Subsequently, while driving the victim home in her car, the defendant lost control of the vehicle. The car suddenly veered to the right, mounted a curb and struck a guardrail, coming to rest approximately 500 feet away. As a result of the accident, both the victim and the defendant required immediate medical care, and the victim was left paralyzed from the neck down and with one arm amputated.

While at the hospital, the defendant was given a blood test that revealed the presence of cocaine in his system. At his subsequent violation of probation hearing, he admitted that he had smoked marijuana before driving the car. Following the hearing, the court found the defendant in violation of the conditions of his probation and sentenced him to seven years in prison. On appeal, this court affirmed the judgment of the trial court. State v. Gay, 87 Conn. App. 806, 814, 867 A.2d 26, cert. denied, 273 Conn. 930, 873 A.2d 999 (2005).

On March 21, 2005, while the defendant was free on a $250,000 appellate bond relating to his violation of probation, police officers attempted to stop his vehicle because its rear license plate was partially detached. Instead of stopping, the defendant accelerated, engaging the police in a high speed chase. After overturning the vehicle, the defendant exited it and struck one of the officers at the scene. The charges arising from this incident were consolidated with the charges stemming from the 2001 accident in which the defendant’s passenger was seriously injured. Though the defendant was initially represented by private counsel, assistant public defender Elizabeth Reid was later appointed to represent him on April, 19, 2005.

From the inception of his professional relationship with Reid, the defendant repeatedly told her that he intended to hire private counsel. On September 20,2005, Reid was permitted to withdraw from representing the defendant on the basis of representations made by the defendant’s father that he had hired a private attorney. Reid was subsequently reappointed on October 20, 2005, when that assertion proved inaccurate. During the pretrial aspect of this matter, the defendant was granted several continuances in conjunction with his representations that he intended to retain private counsel.

Ultimately, Reid secured an offer from the state for a plea bargain through which the defendant would receive a sentence of five years to be served consecutively to the seven years he was already serving for his violation of probation. On January 6, 2006, because the defendant had not yet accepted the state’s offer, negotiations continued at the same time as jury selection was scheduled to begin. In conjunction with the plea negotiations, the defendant appeared before the court and was canvassed with respect to the state’s offer. Finally, following the court’s extensive canvass and numerous conversations with Reid, the defendant decided to accept the state’s offer. Accordingly, he entered pleas to the charges of assault in the second degree with a motor vehicle, operating a motor vehicle while under the influence of intoxicating liquor or drugs and assault of a public safety officer.

On February 6, 2006, attorney Tina Sypek D’Amato appeared on behalf of the defendant and filed a motion to withdraw his guilty pleas on the basis of his claim that he had been denied the effective assistance of counsel and that the court’s plea canvass had been inadequate. Later, on February 17, 2006, the defendant filed an amended motion to withdraw his guilty pleas in which he detailed the claimed manner in which counsel's assistance had been ineffective and the court’s allegedly inadequate plea canvass had rendered his pleas unknowing and involuntary. Following an evidentiary hearing on February 27, 2006, at which both the defendant and Reid testified, the court denied the motion to withdraw. On March 20, 2006, the defendant filed another motion to withdraw his guilty pleas on the basis of ineffective assistance of counsel. In response, the court held another evidentiary hearing on March 27, 2006, at which both the defendant and Reid again testified. Following this hearing, the court denied the second motion to withdraw the guilty pleas. Consequently, the defendant was sentenced in accordance with the terms of the plea agreement. This appeal followed. Additional facts will be provided as necessary.

The defendant claims that the court improperly denied his motions to withdraw his guilty pleas because his appointed counsel provided ineffective assistance, and, consequently, the pleas were not knowing, intelligent and voluntary. The defendant also claims that his conviction after plea is unconstitutional because his counsel conducted an inadequate investigation, failed to review fully the transcripts of a prior hearing and misled the defendant as to the ramifications of pleading guilty. We are unpersuaded.

The following legal principles and standards inform our review of the court’s decision. “Before a guilty plea is accepted a defendant may withdraw it as a matter of right. Practice Book [§ 39-26]. After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39-27]. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. ... To warrant consideration, the defendant must allege and provide facts which justify permitting him to withdraw his plea under [Practice Book § 39-27].” (Citation omitted; internal quotation marks omitted.) State v. Barnwell, 102 Conn. App. 255, 258-59, 925 A.2d 1106 (2007). “Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d 204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000).

“Our case law holds that [a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 [4] of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance. ... In addressing this second prong, the United States Supreme Court held in Hill v. Lockhart, 474 U.S. 52, [59] 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), that to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . The resolution of this inquiry will largely depend on the likely success of any new defenses or trial tactics that would have been available but for counsel’s ineffective assistance.” (Citations omitted; internal quotation marks omitted.) State v. Scales, 82 Conn. App. 126, 129-30, 842 A.2d 1158, cert. denied, 269 Conn. 902, 851 A.2d 305 (2004). “Areviewing court can find against the [defendant] on whichever ground is easier.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 259, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

I

The defendant first claims that the court abused its discretion by denying his motions to withdraw his guilty pleas, which he based on counsel’s alleged ineffective assistance in failing to conduct an adequate pretrial investigation. The defendant claims that if counsel had effectively interviewed the victim and had adequately investigated the scene of the accident, he could have proceeded to trial and pursued a causation defense for the charge of assault in the second degree with a motor vehicle. Specifically, the defendant claims that an adequate investigation would have supported his assertion that the victim grabbed the steering wheel and caused the accident. The court noted, however, that the defendant presented no evidence that counsel had failed to investigate in the manner claimed and, furthermore, offered no evidence that even if counsel had spoken directly with the victim, her response would have been sufficiently supportive to encourage him to go to trial.

Additionally, the court found that Reid’s investigation was adequate, a conclusion that finds support in the record. Reid testified that she instructed her investigator to talk to the police officers, to review the police and witness reports and to identify potential witnesses. Reid also testified that she reviewed all of the police reports and spoke with the defendant at length about the reports’ contents and avenues of possible further investigation. Reid indicated that she sent her social worker to speak to the victim and her mother and, as a result of those interviews, concluded that further efforts to obtain the victim’s testimony would not be beneficial to the defense. Reid testified that she was aware of the defendant’s claim that the victim had caused the accident by grabbing the steering wheel and that she spoke with the defendant at length about her concerns regarding this defense. She indicated that she informed the defendant that this defense would be problematic because, to assert it, he would have to testify, thereby subjecting him to cross-examination and impeachment. She also testified that she pointed out to the defendant that his statement to the police immediately after the accident, in which he stated that he did not remember what caused the accident, would need to be explained at trial.

In reaching its conclusion that Reid’s investigation was adequate, the court was free to credit Reid’s testimony in this regard. Having done so, the court’s conclusion that Reid’s investigation and advice to the defendant was reasonable finds ample evidence in the record.

Even if the record could support the conclusion that Reid’s investigation was faulty, the defendant failed to make any proffer to the court that he was prejudiced by counsel’s alleged dereliction. The defendant provided no evidence at the evidentiary hearings that additional investigation of the accident scene would have provided any basis for his claim that the accident was caused by the victim’s conduct in the vehicle. Furthermore, although the defendant claimed that Reid’s failure to question the victim directly prejudiced his case, the defendant did not bring the victim forward as a witness, he provided no reason for her absence, and no effort was made to present her evidence through other means. Thus, the court was left with no basis for determining that the victim’s recitation of the facts of the accident would have been of any assistance to the defendant. In the absence of any evidentiary support, the defendant’s bare assertion that further investigation was pivotal to his decision to plead guilty does not establish prejudice. See Williams v. Commissioner of Correction, 90 Conn. App. 431, 437, 876 A.2d 1281 (2005). Accordingly the defendant has failed to sustain his burden of proof.

II

The defendant next claims that counsel was ineffective in that her failure to copy, to review adequately and to analyze the transcripts from his violation of probation hearing rendered her unprepared for trial. This claim has no merit.

Reid testified at both evidentiary hearings on the defendant’s motions to withdraw that she had access to the transcripts, reviewed them and was prepared for trial. As it was entitled to do, the court plainly credited this testimony. “[T]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The [trial] judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007).

Ill

Finally, the defendant claims that his guilty pleas were not knowingly entered into because Reid led him to believe that by pleading guilty he would gain more time to hire a private attorney and could then use his private attorney to vacate the pleas prior to sentencing. We are not persuaded.

Our review of the transcript of the plea hearing reveals that the defendant knew what rights he was surrendering by pleading guilty and that he voluntarily chose to do so. Finally, the defendant was not a newcomer to the criminal justice system, having been convicted on three previous occasions following guilty pleas. In response to this claim, the court credited Reid’s adamant denial that she told the defendant that he could avoid the commencement of trial by initially pleading guilty with the intent of then hiring a private attorney for the purpose of withdrawing the guilty pleas before sentencing. In light of the record, we have no reason to reject the court’s determination that Reid’s testimony was credible. See id.

The judgments are affirmed.

In this opinion the other judges concurred.

       As a result of the March 21, 2005 incident, the defendant was charged with interfering with an officer in violation of General Statutes § 53a-167a, assault of public safety or emergency medical personnel in violation of § 53a-167c, engaging police in pursuit in violation of General Statutes § 14-223 (b), reckless driving in violation of General Statutes § 14-222, theft or illegal possession of motor vehicle number plates in violation of General Statutes § 14-147a and illegal operation of a motor vehicle while his license was under suspension in violation of General Statutes § 14-215.

       The plea bargain included a sentence of five years for the assault of a public safety officer and a concurrent five year sentence for the assault in the second degree with a motor vehicle. The state agreed to nolle the other charges, including a charge of assault in the first degree arising from the 2001 accident, which carried a maximum penalty of twenty years in prison.

       The defendant relies on Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006), for the proposition that mere failure to investigate is sufficient to prove ineffective assistance of counsel without proof of what evidence further investigation would have revealed. We disagree with this analysis. In Dando, the defendant originally pleaded no contest on the advice of counsel. Id., 794. On appeal, new counsel filed a motion for the appointment of an expert on battered woman’s syndrome to assist with an ineffective assistance of counsel claim on the basis of an unexplored affirmative duress defense. Id., 794-95. In conjunction with that appeal, the defendant submitted three affidavits attesting to a history of physical and sexual abuse. Id., 795. In its decision, the court described the “shocking” details of the abuse the defendant had suffered and expressly found that counsel would not have recommended the no contest plea and likely would have rejected a guilty plea altogether. Id., 801-802. There was no such evidence or findings of prejudice in the case at hand.
      The defendant’s reliance on Dando is further undermined by cases within our jurisdiction that indicate that for a claim of ineffective assistance of counsel to succeed, there must be concrete evidence of prejudice. For example, in Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995), our Supreme Court’s conclusion that the petitioner was denied effective assistance of counsel relied on the evaluation and testimony of a psychiatrist, presented at the habeas hearing, that the petitioner suffered from mental illness at the time of the offense. A defendant must present some basis in evidence for a court to find actual prejudice.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    LASER CONTRACTING, LLC v. TORRANCE FAMILY LIMITED PARTNERSHIP ET AL.
    (AC 28802)
    Lavine, Beach and Peters, Js.

      Argued March 13
    officially released June 3, 2008

      Brian B. Staines, for the appellants (defendants).

      Frank J. Liberty, for the appellee (plaintiff).
   Opinion

PETERS, J.

With limited exceptions, the Home Improvement Act, General Statutes § 20-418 et seq., makes a home improvement contract that is not in writing unenforceable in an action either for breach of contract or for unjust enrichment. Barrett Builders v. Miller, 215 Conn. 316, 322, 576 A.2d 455 (1990). The principal issue in this case is whether the services performed by a contractor in installing a modular home at a new site and in making improvements to the newly installed home qualify for the statutory exception for contracts for the construction of a new home. General Statutes § 20-419 (4) (A). Relying on the fact that the contractor’s services preceded the issuance of a certificate of occupancy for the modular home, the trial court held the exception to be applicable and also resolved other remaining issues in favor of the contractor. We affirm the judgment of the trial court.

On June 30, 2003, the plaintiff, Laser Contracting, LLC, filed a multicount complaint against the defendants, Torrance Family Limited Partnership and Jeffrey Torrance, to recover for services rendered in conjunction with the removal of a modular home from East Lyme and its attachment to a new foundation at 120 Rattlesnake Ledge Road, Salem. The defendants filed a general denial and a special defense based on the Home Improvement Act. After a trial to the court, the court rendered judgment on behalf of the plaintiff on its claims of breach of contract and unjust enrichment and awarded damages of $45,398.27 as well as interest in the amount of 10 percent a year pursuant to General Statutes § 37-3a.

The memorandum of decision of the trial court contains the following findings of fact. The defendants hired the plaintiff to prepare a modular home for its removal to a newly poured foundation at 120 Rattlesnake Ledge Road, Salem, and to perform services required to make the home functional at its new location. Subsequently, Scott Weston, the sole member of the plaintiff limited liability company, entered into an agreement to purchase the Salem property from the defendants at a price based on the combined costs of the lot, the modular home, the relocation and improvements made prior to purchase. In reliance on this agreement, the plaintiff incurred expenses to make further improvements to the home. The agreement could not, however, be performed as originally drafted because the defendants did not yet own the underlying lot on the stated closing date of November 1,2002. They did not obtain title to the lot until December 31, 2002. The parties’ subsequent negotiations for a formal purchase and sale agreement were unsuccessful, and the defendants sold the property to a third party purchaser. Before doing so, the defendants were required to pay $42,076.94 for the release of mechanic’s liens for services performed by the plaintiff. They maintained that they incurred a net loss of $9498 on the sale to the third party.

In light of these findings, the court rejected the defendants’ argument that, because no written contract was provided pursuant to the Home Improvement Act, they had no duty to pay the plaintiff for the services rendered and materials installed. Instead, the court concluded that the defendants’ offer to sell the property to Weston had induced the plaintiff to perform additional improvements to the property. Without differentiating between the plaintiffs claims for breach of contract and unjust enrichment, the court awarded the plaintiff a total of $45,398.27.

The defendants’ appeal raises three principal issues. As a matter of statutory law, they challenge the validity of the court’s conclusion that the Home Improvement Act did not bar the plaintiffs recovery. As a matter of substantive law, they contend that the court improperly held them liable both for breach of contract and for unjust enrichment. As an evidentiary matter, they contest the propriety of the court’s holding both defendants liable to the plaintiff. Although we agree in part with the defendants’ second claim, we nonetheless affirm the judgment in favor of the plaintiff.

I

THE HOME IMPROVEMENT ACT

As a general rule, ahorne improvement contract is not enforceable against a homeowner unless the contract complies with the writing requirements of the Home Improvement Act, General Statutes § 20-429. Barrett Builders v. Miller, supra, 215 Conn. 322; New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 659, 927 A.2d 333 (2007). In this case, the plaintiff argued, and the trial court found, that the services performed by the plaintiff fell within the statutory exception for contracts for “[t]he construction of a new home . . . .” General Statutes § 20-419 (4) (A). In their appeal, the defendants maintain, as they did at trial, that the exception is inapplicable. We agree with the trial court in ruling to the contrary.

The principal precedent on which the defendants rely is Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995), in which our Supreme Court held the Home Improvement Act to be applicable to the construction of a swimming pool concurrently with the construction of a new home. Rizzo Pool Co. expressly relied on the fact that the pool installation contract was “completely separate and distinct” from the new home construction and involved unrelated contractors. Id., 677. The defendants here claim that, analogous to Rizzo Pool Co., the trial court’s finding that described the plaintiffs services as “repairs, alterations and upgrades” denotes the court’s implicit determination that the services amounted to home improvements that were separate and distinct from the modular home’s original construction.

We must decide two issues: whether the court properly found that relocation of the house to Salem constituted new construction and, if so, whether the services undertaken by the plaintiff after the defendants’ agreement to sell the property to Weston qualified as separate and distinct home improvements, as in Rizzo Pool Co. Our resolution of these issues requires us to determine whether the court’s explicit and implicit findings of fact were clearly erroneous. See Practice Book § 60-5; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-22, 435 A.2d 24 (1980).

The court record and the memorandum of decision establish the factual basis for the court’s finding that “the [mobile] home was new to the lot, and work [was required to qualify for] a certificate of occupancy.” Prior to any work on the Salem property, the former owner of the lot and the defendants entered into a purchase and sale agreement that included a provision requiring the seller to apply for a building permit. The permit was granted under a new home construction license, as opposed to a home improvement license. Upon its purchase and relocation, the modular house was uninhabitable and in need of electrical, plumbing and heating services. A new basement, septic system, well, garage and driveway were constructed where none previously had existed. In sum, the project involved the construction of a new home, albeit with a used part. The trial court therefore properly found that the statutory exception governed the installation of the modular home on the Salem property.

The more difficult question that remains is whether the specific “repairs, alterations and upgrades” to the modular home that the plaintiff performed after Weston’s agreement to buy the property equally qualify as home improvements under Rizzo Pool Co. Our Supreme Court’s opinion in Rizzo Pool Co. is again illuminating. As previously noted, in that case the pool installation contract involved services that were physically separate and distinct from the new home construction, and performed by separate unrelated contractors. Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 677. In addition, the pool contract contained no indication that the pool was to be installed at any particular stage of the new home construction or even that it was to have been installed prior to the completion of the new home. Id., 677-78. By contrast, the record in this case shows that the plaintiffs services after the defendants agreed to sell Weston the property were not separate and distinct from the underlying project of reassembling and preparing a modular home for resale at a new location. At trial, Torrance testified: “[M]y agreement with Mr. Weston had to do with him taking over the project, completing the construction and completing the house.” Unlike the situation in Rizzo Pool Co., then, not only was the contractor always the same entity, but the services it performed consistently served the parties’ common goal of completing the house for resale. We conclude, therefore, that the trial court’s finding that the plaintiff s services fell within the scope of the new construction exception to the Home Improvement Act was not clearly erroneous.

II

BREACH OF CONTRACT AND UNJUST ENRICHMENT

In their alternate arguments for reversal of the judgment of the trial court, the defendants maintain that the trial court improperly rendered judgment in favor of the plaintiff on the plaintiffs claims of breach of contract and unjust enrichment. This argument has two parts. The defendants maintain that (1) they never entered into an enforceable contract with the plaintiff and (2) they cannot be held liable for both breach of contract and unjust enrichment. Although we agree in part with the defendants’ second argument, we need not address the merits of their contract claim because the judgment can be sustained on the ground of unjust enrichment.

The defendants maintain that, as a matter of law, it was improper for the trial court to render judgment in favor of the plaintiff both on its claim of breach of contract and on its claim for unjust enrichment. Although the defendants have not brought to our attention any effort on their part at trial to have the plaintiff undertake an election of remedies, they nonetheless are correct that they cannot be held liable simultaneously for breach of an express contract and an implied in law contract governing the same subject matter. Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999); 1 E. Farnsworth, Contracts (2d Ed. 1998) § 2.20, p. 176. The trial court, therefore, should not have rendered judgment in favor of the plaintiff on both the first and fourth counts of the plaintiffs complaint.

We may, nonetheless, affirm the judgment against the defendants if we conclude that the plaintiff established one of its claims, namely, its claim of unjust enrichment. As recently restated by our Supreme Court, “[u]njust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

Appellate appraisal of a trial court’s finding of unjust enrichment is governed by the well established principle that “the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

Our review of the record persuades us that, in this case, the court properly rendered an equitable judgment in favor of the plaintiff on the basis of unjust enrichment. The parties do not dispute the court’s findings that the individual defendant, who was the senior partner of the defendant partnership, proposed selling the house and the land to Weston at a time when he knew that the partnership did not yet own the real property. In the months subsequent to this proposal, the plaintiff continued to make improvements to the property and was observed to be doing so by the individual defendant. This evidence supported the court’s implicit finding that the defendants acquiesced in the performance of the plaintiffs services. Weston’s interest in purchasing the property was frustrated by the parties’ inability to agree on subsidiary terms of a formal purchase and sale agreement. In light of this record, the trial court properly could conclude that the defendants unjustly enriched themselves by selling the improved property to a third party without fully compensating the plaintiff for the enhancement in the value of the property that was attributable to the valuable services rendered by the plaintiff.

Case law also supports the trial court’s findings in this case. In Wainwright v. Talcott, 60 Conn. 43, 22 A. 484 (1891), our Supreme Court reviewed a complaint in which the plaintiff allegedly had been assured that his family would inherit the defendant’s property. Although the defendant had acquiesced in the plaintiffs improvements to the property, he ultimately devised the improved real estate to another party. Id., 49-50. Identifying the principle animating the complaint, our Supreme Court stated: “The cause of action in such cases is not the refusal to perform a contract, or keep a promise or engagement upon which another relied, but it is the consequent unjust infliction of loss or injury upon one party, and the consequent benefit and advantage resulting to the other, from the violation or breach of a faith and confidence which, under the circumstances, a court of equity deems to have been rightly reposed in him.” Id., 52-53.

More recently, our Supreme Court reviewed a case in which the defendant offered and agreed to sell a residential property to his nephew, the plaintiff, when the defendant reached retirement age. Misisco v. La Maita, 150 Conn. 680, 681-82, 192 A.2d 891 (1963). Although the nephew made substantial alterations and improvements to the property in reliance on his uncle’s assurances, the defendant repudiated the agreement. Id., 682. Our Supreme Court stated: “The cause of action ... is to recover for the loss which the plaintiff has incurred as a result of making, to the enrichment of the defendant, expenditures for and the improvements to the property in reliance on a course of conduct by the defendant which led the plaintiff to believe that the defendant would sell the property to him. . . . It is an action in quasi contract, i.e. an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract. . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which is to prevent unjust enrichment. . . . The only remedy is in an award of money damages.” (Citations omitted.) Id., 683-84.

These precedents illuminate the present case and reinforce our conclusion that the trial court properly awarded money damages on the basis of unjust enrichment to the plaintiff, whose self-interested expenditures, made in reliance on the defendants’ assurance to sell Weston the property, proved to have benefited the defendants.

As a final matter, the defendants argue on appeal that the court could not have awarded restitution on the basis of unjust enrichment because they were not enriched by the services performed by the plaintiff. They cite the fact that the third party sale resulted in a net loss of $9498 and that this loss was exacerbated by their obligation to pay $42,076.94 toward the payment of mechanic’s liens for services performed by the plaintiff.

A trial court’s determination of the exact amount of recovery under the unjust enrichment doctrine is a question of fact. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 283. To obtain review of the propriety of such an award, a litigant must provide us with a record of the underpinnings of the court’s decision. In this case, the court did not make specific factual findings either with respect to the plaintiffs costs or with respect to the benefits conferred on the defendants. The defendants did not seek an articulation of the basis for the court’s award. See Practice Book § 66-5. On this record, we have no basis other than speculation to review the court’s determination. Accordingly, we decline to review this claim. See Newtown Pool Construction, LLC v. Errico, 103 Conn. App. 566, 571, 930 A.2d 50 (2007).

Ill

LIABILITY OF THE DEFENDANT PARTNERSHIP

The court awarded the plaintiff a remedy both against Torrance and against the Torrance Family Limited Partnership. The partnership maintains that the trial court improperly denied its motion for dismissal on all counts of the plaintiffs complaint for failure to make out a prima facie case. The partnership bases this contention on two arguments. As a matter of pleading, it alleges that it improperly was held liable on the plaintiffs claim of unjust enrichment because the plaintiffs posttrial brief did not expressly refer to the partnership’s potential liability. As a matter of proof, it alleges that the record establishes that the plaintiff dealt only with the individual defendant and not with the partnership defendant. We disagree.

The trial court implicitly found that Torrance, in conducting the negotiations with Weston, was acting as an agent of the Torrance Family Limited Partnership. That finding was supported by evidence that the checks issued to purchase both the modular home and the lot on which the modular home was placed were drawn on a partnership account. Furthermore, the partnership was identified as the operative party in the documents attendant to the sale of the property to the third party purchaser. Finally, the partnership does not dispute the fact that the individual defendant was its principal partner. Because these findings of fact were not clearly erroneous, the court’s decision to hold the partnership liable for unjust enrichment must be sustained.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint alleged (1) breach of an oral contract, (2) violation of the implied covenant of good faith and fair dealing, (3) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and (4) upjust enrichment.

       Although the defendants also filed a claim for setoff, the trial court found this defense to have been abandoned at trial. The defendants have not contested the court’s ruling.

       The plaintiff has not appealed from the court’s denial of the second and third claims for recovery.

       The defendants did not file a motion for articulation asking the court to clarify the basis for the court’s monetary award. Practice Book § 66-5.

       Because we hold this statutory exception applicable, we need not address the validity of the trial court’s alternate holding that the defendants were not “owners” entitled to invoke the provisions of the Home Improvement Act because, at the time of the plaintiffs performance, the defendants had not yet obtained title to the underlying property.

       A certificate of occupancy was first issued on February 24, 2003, more than nine months after construction work had begun and after the plaintiff had ceased work on the property.

       No issue has been raised under the New Home Construction Contractors Act, General Statutes § 20-417a et seq., either in the trial court or in this court.

       Though not dispositive of the Home Improvement Act defense, the bill of sale representing the defendants’ purchase of the East Lyme structure is more indicative of a sale of a chattel than of a real estate transaction. Under the Uniform Commercial Code, “ ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale . . . U.C.C. § 2-105 (1) (1998); see also General Statutes § 42a-2-105 (1). Accordingly, other courts have traditionally classified modular homes to be “goods” under the Uniform Commercial Code. See Cates v. Morgan Portable Building Corp., 591 F.2d 17, 20 (7th Cir. 1979); Stephenson v. Frazier, 399 N.E.2d 794, 797 (Ind. App. 1980); Joswick v. Chesapeake Mobile Homes, Inc., 362 Md. 261, 266-67, 765 A.2d 90 (2001).

       In his complaint, the plaintiff, William Wainwright, alleged that the defendant, John L. Talcott, had “assured and promised the plaintiff that upon his, John L.Talcott’s, dealh, his interest in said real estate should go to the plaintiffs wife and children, and that any improvements made by the plaintiff thereon and expenses incurred therefor, should at the death of said Talcott accrue to the benefit of the plaintiffs wife and children; that in reliance upon said promise and assurance the plaintiff expended large sums of money on the permanent improvement of said real estate; that Talcott knew of this expenditure and knew that it was done in reliance upon his said assurance; that afterwards Talcott, by will, left all of his interest in said real estate to others and has never in any way reimbursed the plaintiff for said expenditures . . . .” Wainwright v. Talcott, supra, 60 Conn. 49-50.

       This reasoning also was articulated in the Restatement of the Law of Restitution: “A person who has rendered services to another or services which have inured to the benefit of another or who has affixed chattels to the land or chattels of another is entitled to restitution therefor if the services were rendered or the chattels were affixed . . . (b) to obtain the performance of an agreement with the other therefor, not operative as a contract, or voidable as a contract and avoided by the other party after the services were rendered, the one performing the services erroneously believing because of a mistake of fact that the agreement was binding upon the other . . . .” Restatement, Restitution, Quasi Contracts and Constructive Trusts § 40, p. 155 (1937). “A person who has acquired an interest in land or chattels as the result of an agreement with the owner made under a mistake of fact and avoided by the owner is entitled to restitution for the value of services rendered in their preservation or in making appropriate improvements thereon.” Id., § 42 (3), p. 167; see also id., § 170 comment (a), p. 689.

       Because the court rendered damages of $45,398.27 plus interest, we could conclude that it agreed with the plaintiffs claim that the defendants’ recovery from the third party purchaser was enhanced by the value of the improvements to the property that Weston had undertaken.

       The defendants also fault the trial court’s judgment on the ground that the plaintiff, in its posttrial brief, did not specifically argue its contract and unjust enrichment claims. In the absence of a rule of practice that, as a prerequisite to adjudication, requires a party to articulate every claim from its pleadings in its posttrial brief, this argument lacks merit.


author: HENNESSY, J.

text:
    JOHN A. FANOTTO, JR., ET AL. v. INLAND WETLANDS COMMISSION OF THE TOWN OF SEYMOUR
    (AC 28405)
    Flynn, C. J., and Beach and Hennessy, Js.
    Argued February 14
    officially released June 3, 2008

      Matthew Ranelli, with whom, on the brief, was Lewis R. Whitehead, for the appellants (plaintiffs).

      Timothy J. Lee, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiffs, John A. Fanotto, Jr., and Anna Fanotto, appeal from the judgment of the trial court dismissing their appeal from the denial by the defendant, the inland wetlands commission of the town of Seymour (commission), of their application for a wetlands permit so that they could build a subdivision on their property. The issue presented in this appeal is whether the court properly concluded that the commission had adequate support for the denial of the application to conduct regulated activities on the property when the uncontroverted expert testimony and reports showed that there would be minimal impact to the wetlands. We reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiffs appeal and ordering the commission to approve the application with reasonable conditions consistent with this opinion.

The following facts and procedural history are relevant to the plaintiffs’ appeal. The plaintiffs own a 20.37 acre parcel zoned R-18 in Seymour on which they wanted to create a twenty lot subdivision. The parcel includes 5.1 acres of wetlands, 3.6 acres of which are encompassed in 4.1 acres of land proposed for dedication as open space. The plaintiffs submitted the application at issue on March 2, 2004, and the commission deemed it to be a complete application. The commission first heard from the plaintiffs at its March 22, 2004 meeting, at which time “ ‘a site waik/special meeting/ public hearing’ ” was scheduled for April 10, 2004. Consultant and wetlands scientist Robert Jontos was introduced by the plaintiffs at the March 22, 2004 meeting and was able generally to present the impact the subdivision would have on the wetlands. The commission next heard from the plaintiffs at its April 26, 2004 meeting. The commission unanimously voted to classify the property as having a “possible significant impact on the wetlands and watercourses.” The commission then requested the plaintiffs’ permission to have various agencies perform soil tests, which the plaintiffs did not oppose. The May 17, 2004 public hearing on the application was not attended by the plaintiffs. Instead, their counsel sent a letter stating that the plaintiffs were of the opinion that the commission had failed to act on the application in a timely fashion and that the plaintiffs were forwarding the application to the department of environmental protection. Owners of land adjoining the subject property attended the May 17, 2004 public hearing and voiced concern about the application and the impact to the wetlands. The public hearing was continued until May 24, 2004, where more laypersons spoke in opposition to the application. The public hearing was closed, and the commission unanimously denied the application. The reasoning for the denial of the application is encompassed in the minutes of the meeting.

The plaintiffs appealed from the decision of the commission to the Superior Court, arguing that there was no substantial evidence to support the commission’s denial of their application, especially in light of the expert testimony. The court found that the commission had “actual knowledge of the area involved” and that the maps included with the application showed that twelve of the twenty lots proposed were affected by the proximity of the wetlands. Overall, the court held that the knowledge gained by the commission through personal observation of the area encompassed by the application was properly considered in reaching the decision that the construction would have an adverse effect on the wetlands. The court also held that no evidence was necessary to make a credibility determination about the expert’s testimony, nor was the commission required to believe the expert. Accordingly, the court dismissed the plaintiffs’ appeal. The plaintiffs then filed the present appeal after this court granted their petition for certification to appeal.

We begin by setting forth the applicable standard of review. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 576, 800 A.2d 1102 (2002). “The court is limited to a review of the evidence and reasoning the agency has placed on the record. Agency decisions must be sustained if the record reveals substantial evidence in support of any reason given.” Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 52, 609 A.2d 1043 (1992). “In appraising the sufficiency of this record, the court must determine only whether there was substantial evidence which reasonably supported the administrative decision, since [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” (Internal quotation marks omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). The party challenging the agency decision has the burden to show that “substantial evidence does not exist in the record as a whole to support the agency’s decision.” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). The substantial evidence test requires a substantial basis in fact that an actual adverse impact to the wetlands or watercourses will result from the proposed activities and that the defendant’s decision must be supported by more than a possibility of that adverse impact. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70-80, 848 A.2d 395 (2004).

“Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness. From both perspectives, we are compelled to conclude that a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view.” Feinson v. Conservation Commission, supra, 180 Conn. 429. “Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 71. “The determination of what constitutes an adverse impact on the wetlands is considered to be a technically complex issue.” Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 222, 605 A.2d 869 (1992).

With this in mind, we must look to what evidence we may consider. “[T]he general rule is that information may not be considered by board members which has not been presented at the public hearing itself.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 407. “When an inland wetlands agency grants, denies or limits any permit for a regulated activity, it is required to state upon the record the reasons for its decision. On review, the court determines whether the express reasons given for denial are based upon the agency’s regulations and whether they are reasonably supported by evidence in the record. ... If none of the reasons given by the agency are properly supported by substantial evidence, then the agency’s denial of the application will be overturned.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:9, pp. 271-72. “Although the commission would have been entitled to deny an application because it did not believe the expert testimony . . . the commission had the burden of showing evidence in the record to support its decision not to believe the experts—i.e., evidence which undermined either the experts’ credibility or their ultimate conclusions.” Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995). “If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings.” Feinson v. Conservation Commission, supra, 180 Conn. 428-29.

We begin our analysis by setting forth the information that was presented before the commission. At the March 22, 2004 meeting, the plaintiffs’ expert, Jontos, presented the proposed plan by explaining what type of intrusion would be on the wetlands. He explained the proposal to improve the watershed areas in terms of direct and indirect impacts. He stated that direct impacts are actual physical intrusions into the wetlands or watercourses and indirect impacts are discharge, with one example of it being storm water activity. He stated that the direct impacts in the plan were a total of two driveways that would cross an intermittent watercourse to enter three building lots and utilities installed near the driveways. The other direct impact would be from the upgrading of the existing road running through the property. The indirect impacts would be the discharge of storm water in some of the areas, which would be addressed by upgrading and instituting systems to direct the runoff and to “provide for stabilization of this area.” He asserted that the improvements to the existing system would have a stabilizing effect as well as promote increased diversity for additional wildlife habitats. The commission voted during this meeting to have a site walk on April 10,2004, and invited the public so that it would be a public hearing as well.

From the minutes and transcripts of the April 26, 2004 special meeting and public hearing, it is apparent that a silent walk through occurred on April 24, 2004, with three of the commission members “to review wetland delineation markers on the parcel of land.” The plaintiffs submitted an updated environmental report with an expanded wildlife section and added the expert’s resume to the record. Upon questioning by the commission, Jontos explained the process of conducting a soil survey, that the soil tests were complete and that the survey that was submitted was “intensive.” A member then suggested that other agencies be asked to come and perform surveys on the site, to which the plaintiffs did not object. Jontos still requested that the commission be polled to find out its areas of interest so that he could address its concerns and questions at the next public hearing. The commission did not think that it could give a list, however, until it conferred with other agencies. The chairman of the commission stated that the commission would contact the agencies that it would like to have survey the site. The meeting ended with the plaintiffs’ counsel stating that the clock was running on the application and the chairman stating that if the commission did not have all the information at the end of the statutory time period, the commission had the right to reject the application.

In the minutes of the May 17, 2004 public hearing, the commission read the letter from the plaintiffs’ counsel into the record. The letter informed the commission that the plaintiffs were not going to attend the meeting because they were of the opinion that the commission had not acted on the application in a timely fashion and that they were taking their application to the department of environmental protection. Owners of adjoining property spoke at this meeting opposing the application. Some property owners without any demonstrated expertise in wetlands wrote letters that are available in the record. One property owner wrote about trees that had been cut down on the property. He also asked whether there was a spring or storm water on the property because water appeared to be draining into the Globe Mill Brook, which runs along the proposed subdivision. Another property owner wrote a letter about how much she enjoyed the Globe Mill Brook and that she thought that the development would ruin it.

According to the minutes of the May 24, 2004 public hearing, more property owners spoke in opposition, but again, none of the speakers was shown to have any expertise. The commission then moved to go into executive session. After that, a regular meeting was called to order, and the plaintiffs’ application was rejected without prejudice. The minutes reflect that a commission member “stated that the purpose of the commission is to conserve and maintain the quality of the wetlands and watercourses by preventing and reducing any reduction of their quality. The commission has followed the rule of law by requesting pertinent information from the applicant that is needed by this board to reach a decision on his project. This commission held a special meeting site walk and, because of poor flagging and identification on the wetland borders, held a second silent site walk with two members and the applicant. It was very evident to this board from our previous experience that this site with steep slopes, heavy seepage, watercourses, and breakout soils constituted a definite potential for a significant impact during and after construction of this project. Neighbors’ concerns were also weighed in the decision to classify this application as requiring a public hearing. The applicant did not submit soil tests or maps that were complete or clear to this board and chose not to attend the special public hearing on May 17, 2004, to address the concerns for the commissioners or the public on these matters.”

An extensive review of the record reveals that there was no credible evidence presented during the public hearings to rebut the findings of the plaintiffs’ expert. The commentary against the development was set forth by individuals with no apparent expertise in any field relevant to the specialized determination of adverse impacts to wetlands. Cf. Milardo v. Inland Wetlands Commission, supra, 27 Conn. App. 222. It is evident from the commission’s statement regarding the denial of the application that the commission, without any claimed expertise, relied on its knowledge without an opportunity for the plaintiffs to rebut the evidence. The commission never requested information from the plaintiffs that went unanswered, as claimed in the statement. When asked by the plaintiffs’ expert for such concerns so that he could prepare a rebuttal, the commission stated that it would need to confer with experts first, but no experts were ever consulted. Although the commission was correct in stating that the plaintiffs did not attend the May 17, 2004 public hearing, there were no outstanding questions from the commission that the plaintiffs had to answer, and they were exercising their statutory right to take the application to the department of environmental protection. The commission’s assertion that the plaintiffs did not present complete or clear soil maps was wholly unsupported by the record because there was extensive discussion on the record about the soil maps, and the commission’s concerns regarding the maps during the hearings were baseless. Overall, the plaintiffs have shown that no substantial evidence exists in the record to support the commission’s decision to deny the application. They have further shown through credible expert testimony that there is minimal intrusion into the wetlands and there are improvements to the stability of the property; therefore, the only reasonable conclusion for the commission to reach would be to grant the application with reasonable conditions.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal and directing the commission to approve the application with reasonable conditions.

In this opinion the other judges concurred.

       See Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979) (in zoning appeals when as matter of law there was one conclusion zoning authority reasonably could reach, court may direct administrative agency to do or to refrain from doing what conclusion legally requires).

       The commission claims that the public healing for the plaintiffs’ application was not opened until the May 17, 2004 meeting; the record, however, clearly shows that the commission classified this first site walk as a public hearing and published notice of this meeting in the local newspaper as such. See General Statutes § 22a-42a. Pursuant to General Statutes § 8-7d (a), “a hearing . . . held on such petition, application, request or appeal . . . shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty-five days after such hearing commences Under § 22a-42a (c) (1), if the inland wetlands agency fails to act within the time limits under that section or § 8-7d, an applicant may file his or her application with the commissioner of environment al protection, which the plaintiffs did in this case. Failure of the inland wetlands agency to act within the statutory time limitations does not constitute approval of the application. General Statutes § 22a-42a; R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 23.4, p. 531.

       The return of record is missing the transcripts from the May 17 and 24, 2004 meetings. The record shows that counsel for both parties attempted to locate the tapes of the meeting but were unsuccessful. From our review of the record, the meeting minutes from both of the public hearings are adequate to resolve the legal issue before this court.

       There is no documentation in the record showing that the commission made any contact with any other agency to perform such surveys, and no survey results were presented while the public hearing was open.

       The record demonstrates that the commission members misplaced the soil maps, then found them. The commission then questioned the plaintiffs on where and with whom the maps were filed. Once the plaintiffs explained how the soil maps were properly filed, there was no further comment about it. There was then some discussion about who created the soil maps, but once the plaintiffs informed the commission on the subject, again, there was no further comment. Ultimately, all questions the commission had were answered to members’ satisfaction. There was no further discussion.


author: WEST, J.

text:
    LUIS ANGEL LEBRON v. COMMISSIONER OF CORRECTION
    (AC 28029)
    Flynn, C. J., and McLachlan and West, Js.

      Argued March 10
    officially released June 3, 2008

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Luis Angel Lebrón, appeals following the denial of his first amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly denied his two post-judgment motions without conducting a hearing to inquire into the merits of his claims. We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to our disposition of the petitioner’s appeal. On May 13, 1999, pursuant to a plea agreement, and after being properly canvassed, the petitioner pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and conspiracy to tamper with a witness in violation of General Statutes §§ 53a-151 and 53a-48. On August 12, 1999, the trial court sentenced the petitioner to thirty years imprisonment. On June 22, 2000, the petitioner filed a pro se petition for a writ of habeas corpus. Subsequently, on September 10, 2002, the petitioner’s habeas counsel filed an amended petition for a writ of habeas corpus. The petition alleged three claims of ineffective assistance of trial counsel. The petitioner alleged that trial counsel failed (1) to pursue discovery and to communicate with him concerning it, (2) to challenge the petitioner’s arrest and the search of the area in which he was arrested, as well as the arrest warrant itself, and (3) to communicate with him regarding legal standards and evidentiary standards so that the petitioner could make a knowing and voluntary decision as to whether to proceed to trial or plead guilty. On February 20, 2003, the habeas court issued a memorandum of decision denying the amended habeas petition. The petitioner’s habeas counsel failed to file a timely petition for certification to appeal from the court’s decision.

On February 26, 2003, the petitioner filed a pro se petition for certification to appeal from the court’s decision, and the court denied that petition on February 28, 2003. Next, on June 12, 2003, the petitioner filed a pro se letter with the court, which the court construed as a motion for reconsideration of its judgment. Additionally, on July 14, 2003, the petitioner filed a pro se motion for rehearing of the court’s denial of his amended habeas petition. On July 18, 2003, the court denied both without a hearing. On September 29, 2003, the petitioner filed with this court a motion for permission to file a late appeal, which this court denied on November 6, 2003.

On July 18, 2006, the petitioner’s current counsel filed a second petition for a writ of habeas corpus, alleging ineffective assistance of both trial counsel and prior habeas counsel. Also, on July 18, 2006, the petitioner and the habeas trial prosecutor entered into an agreement to restore the petitioner’s appellate rights in the first habeas action. The court rendered a stipulated judgment pursuant to the agreement. As a result, the petitioner filed a second petition for certification to appeal from the judgment in the first habeas action. On August 24, 2006, the court granted this second petition for certification to appeal from the judgment, and this appeal followed on September 8,2006. The petitioner’s attorney filed an appeal form on which he stated that the petitioner was appealing from the denial of the petition for a writ of habeas corpus.

After oral arguments, this court ordered the parties, on March 28, 2008, to submit supplemental briefs on the issue of “whether the claim that the habeas court denied the petitioner’s postjudgment motions without a hearing is properly before this court, as it appears to fall outside the scope of the stipulated judgment to which the petitioner agreed.” The respondent, the commissioner of correction, argued that the denial of the two postjudgment motions was outside the scope of the stipulated judgment and therefore not properly before the court. In contrast, the petitioner argued that the issue of the denial of the two postjudgment motions properly was before this court because it was the intention of the parties to the stipulation to include any issues on appeal that could have been raised as of the time of entry of the stipulation.

The petitioner’s only claim in this appeal is that the habeas court improperly denied his two postjudgment motions without conducting a hearing to inquire into the merits of his claims. We decline to review this claim, as it falls outside the scope of the stipulated judgment to which the petitioner agreed. Indeed, the stipulated judgment provided that the petitioner’s rights were restored with respect to his right to petition the court for certification to appeal from the habeas court’s denial of his amended petition for a writ of habeas corpus. The pro se motions for reconsideration and for a rehearing were filed three and one-half months and four and one-half months, respectively, after the court rendered judgment denying the petitioner’s amended petition for a writ of habeas corpus. Therefore, the pro se, postjudgment motions were not raised in the petitioner’s amended petition for a writ of habeas corpus. As such, the challenge to the denial of those motions does not fall within the scope of the rights restored to the petitioner in the stipulated judgment, and, consequently, we decline to review the petitioner’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, [supra], 400 U.S. 25 ... a criminal defendant is not required to admit Ms guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 736 n.1, 930 A.2d 644 (2007).

       The agreement stated: “IT IS FURTHER STIPULATED AND AGREED that [the petitioner’s] right [to] petition the [habeas] court for certification to appeal the [dismissal [of his first amended petition for a writ of habeas corpus] be and hereby is restored to him . . . .”

       At the time the parties entered into the stipulated judgment, it appears that they were under the assumption that a timely petition for certification to appeal had not been filed after the court denied the petitioner’s first habeas petition. The record demonstrates, however, that the petitioner had filed a timely petition for certification to appeal six days after the court issued its memorandum of decision denying his habeas petition.

       See Brown v. Commissioner of Correction, 104 Conn. App. 144, 149, 931 A.2d 963 (“We are not bound to consider an issue unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . The issue . . . was never raised before the habeas court, and it was not discussed in its memorandum of decision. We therefore decline to review the petitioner’s claim . . . because [t]o review the petitioner’s [claim] now would amount to an ambuscade of the [habeas court,].” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 937, 937 A.2d 693 (2007).

       It also should be noted that the petitioner filed a motion for permission to file a late motion for articulation of the habeas court’s denial of his two postjudgment motions, which this court denied on the ground that the two postjudgment motions were not raised at the habeas trial.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. JAVIER SANTOS
    (AC 27920)
    Flynn, C. X, and Robinson and McDonald, Js.

      Argued February 5
    officially released June 3, 2008

      Elio C. Morgan, special public defender, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Javier Santos, appeals from the judgment of the trial court revoking his probation and reinstating six years of the unexecuted portion of his previous sentence. On appeal, the defendant claims that (1) there was insufficient evidence that he violated his probation by committing sexual assault in the first and second degrees and (2) he was denied due process of law because (a) the revocation of probation hearing and the arrest warrant application did not provide sufficient notice of the specific incidents of the alleged violations of probation for failure to report to his probation officer and (b) there was an unreasonable preaccusation delay in charging him with a violation of probation for failing to report. We affirm the judgment of the trial court.

The following procedural history is relevant to our resolution of the defendant’s claims on appeal. On August 17,1995, the defendant was convicted of robbery in the first degree and was sentenced to twelve years imprisonment, execution suspended after five years, and five years probation. The defendant’s probation commenced on June 5, 2000, after he was released from prison. On that date, the defendant signed a conditions of probation form, which contained ten standard conditions of probation as well as several court-ordered special conditions. On April 12, 2005, the defendant was arrested and charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and thereafter the information was amended to include a charge of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3). On May 10, 2005, Jodie Ward, from the office of adult probation, applied for a warrant for the defendant’s arrest for violating his probation. Ward averred that the defendant was in violation of two of the standard conditions of his probation, one, that he not violate any criminal law and, two, that he report to his probation officer as directed.

The defendant’s trial on the sexual assault charges and his hearing on the violation of probation were held simultaneously, with additional evidence being allowed on the violation of probation charge after the jury returned its verdict. The jury found the defendant not guilty of the sexual assault charges, using the criminal standard of proof of beyond a reasonable doubt. The court, however, found the defendant to be in violation of the conditions of his probation by using the lesser standard of proof of a preponderance of the evidence. The court revoked the defendant’s probation and ordered him to serve six years of the unexecuted portion of his prior sentence. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that there was insufficient evidence that he violated his probation by committing sexual assault in the first and second degrees. Initially, he challenges the court’s conclusion that the evidence was sufficient to establish that he committed sexual assault in the first degree. He then challenges the court’s conclusion that the evidence was sufficient to establish that he committed sexual assault in the second degree. We do not agree with either challenge.

“[E]vidence is not insufficient [merely] because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).

“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. ... 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.” (Citation omitted; internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 80-81, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003). “[A] trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.” (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002).

The following facts, as found by the court, are relevant to our consideration of the defendant’s claims. On the evening of March 19, 2004, “[The victim left] Tracy’s [bar in Bristol] and [went] to Sabino’s parking lot with [her friend]. At that location, the defendant . . . arrive [d]—a person [with whom the victim had] been acquainted ... for a long period of time, including past experiences of consensual sexual relations. [The victim] approache[d] the defendant. There [was a] discussion concerning a ride home for [her friend]. The defendant agree [d]. . . . [A]fter dropping off [the friend] the defendant [drove] to his tractor-trailer . . . which he [was] moving ... to the Friendly’s [restaurant] parking lot. They entered the cab of the truck, and [the victim] indicate[d] that she [didn’t] feel well; [she then lay] on the sleeping area of the cab. . . .

“[The victim] indicated that she had drank too much. . . . She pass[ed] out, falling] asleep in the cab. . . . [L]ater, [she awoke] with the defendant on top of her, [his] penis in her vagina [and] her shoes and pants removed. She told him to stop [and that] it hurt. He didn’t stop. She tried to kick him [and to] push him away, with no result. He pinned her down with his shoulders. She told him she was going to be sick. She was not sure if he ejaculated in her. . . . [A]fter the incident, he gave her a ride home. She was crying.” The court also found that the victim went to a hospital, where a rape kit examination was conducted, which revealed that the defendant had ejaculated inside of the victim’s vagina.

On the basis of these specific facts, the court found, by a preponderance of the evidence, that the defendant had violated the terms of his probation by committing sexual assault in both the first and second degrees.

A

The defendant claims that there was insufficient evidence to support the court’s conclusion that he “violated [his probation] by committing the crime of first degree sexual assault because the facts as found by the court [did] not establish by a preponderance of the evidence that [he] compelled the alleged victim to engage in sexual intercourse by the use or threat of use of force and that the force was . . . such to cause the alleged victim to fear physical injury.” The defendant argues that even if the court accepted the victim’s version of events that “when the act started . . . she woke up and resisted . . . [i]n the world of reasonable logic, the strength and will to resist the use of force or the threat of use of force is inconsistent with the state of fear of physical injury that could result from such resistance. The plain language of the statute contemplates a victim that is so overcome by force or the threat thereof that it generates in her such fear of physical injury that [she] succumb [s] to the desires of her assailant against her will.” This argument is without merit.

Section 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .” The defendant’s argument that if a victim resists a sexual assault, the victim, necessarily, is not in a state of fear of physical injury is lacking in support both logically and legally. A clear and simple example of a victim fighting back while in fear of physical injury can be found in cases of self-defense, in which fear for one’s own safety relieves criminal responsibility for fighting off one’s attacker. Certainly, fear for personal safety and resistance to an attack are both present in such cases. We read nothing in § 53a-70 that would lead us to the conclusion that it requires that a victim’s fear be of the type that would make her “succumb to the desires of her assailant against her will” without fighting back. The argument merits no further discussion.

The defendant also argues that § 53a-70 requires (1) compulsion by the use of force or the threat of force and (2) fear of physical injury. We do not agree. The clear language of § 53a-70 (a) requires that a victim engage in sexual intercoruse with an assailant due to (1) compulsion by the use of force or (2) compulsion by the threat of force and fear of physical injury.

In this case, the court found that the victim passed out in the defendant’s truck and that she awoke “with the defendant on top of her, [his] penis in her vagina [and] her shoes and pants removed. She told him to stop [and that] it hurt. He didn’t stop. She tried to kick him [and to] push him away, with no result. He pinned her down with his shoulders.” The court further found, by a preponderance of the evidence, that “the defendant did compel another person to engage in sexual intercourse with him by the use of force against her . . . .” After reviewing the record, we conclude that the trial court’s finding that the state had proven, by a preponderance of the evidence, that the defendant had committed sexual assault in the first degree and thereby violated his probation was not clearly erroneous and was supported by the evidence.

B

The defendant claims that when viewing “[t]he evidence ... as a whole [along with] the reasonable and logical inferences to be drawn from the testimonies and conduct of the parties, it cannot be said that there exists a preponderance of evidence to support a conclusion that the defendant committed second degree sexual assault. It is equally likely that the sexual intercourse was consensual.” The defendant also alleges that the court gave too much weight to the constancy of accusation witnesses, stating that he “does not challenge the court’s assignment of credibility as to the testimonies of those witnesses but questions the proper weight that should be accorded to them.” We are not persuaded.

Section 6-11 (c) of the Connecticut Code of Evidence, provides: “A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.”

Although the court stated that it “found [the victim’s] testimony more credible because of the constancy of accusation witnesses,” there is nothing in the record that would lead us to the conclusion that this statement meant anything more than the court found the testimony of these witnesses to be corroborative of the victim’s testimony, which lent more credibility to her version of events. In making this statement, the court also explained that it “followed [the] law” related to constancy of accusation witnesses and the use of their testimony. We can discern nothing in the record that would lead us to the conclusion that the court used the testimony of these witnesses for any purpose beyond that which is permitted.

The defendant testified that the sexual encounter between him and the victim was consensual. The victim testified that it was not consensual. The court found the victim to be more credible than the defendant. “The credibility of witnesses is a matter to be resolved solely by the [trier of fact].” (Internal quotation marks omitted.) State v. White, 229 Conn. 125, 143, 640 A.2d 572 (1994). “[W]e must defer to the [trier’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Id.

The court specifically found that the victim had passed out in the defendant’s truck and that when she awoke, the defendant was on top of her, her shoes and pants had been removed, and the defendant’s penis was inside of her vagina. One manner of violating § 53a-71 (a) (3) is by engaging in sexual intercourse with another person who is unconscious. The court’s finding, made after its assessment of the credibility of the witnesses, that the state had proven, by a preponderance of the evidence, that the defendant had committed sexual assault in the second degree and thereby violated his probation was not clearly erroneous and was supported by the evidence.

II

Although the defendant does not dispute that he failed to report to his probation officer as directed, he, nevertheless, claims that his right to due process was violated because (1) the revocation of probation hearing and the arrest warrant application did not provide sufficient notice of the specific incidents of the alleged violations of probation for failure to report and (2) there was an unreasonable preaccusation delay in charging him with a violation of probation for failing to report. We do not agree.

“[T]he due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. ... In this regard . . . [w]here noncriminal activity forms the basis for the revocation of probation . . . due process mandates that the [probationer] cannot be subjected] to a forfeiture of his liberty for those acts unless he is given prior fair warning. . . . [Assertions that the defendant lacked prior notice of the conditions underlying the probation revocation [involve a question] of law for which our review is plenary.” (Citation omitted; internal quotation marks omitted.) State v. Bruce T., 98 Conn. App. 579, 586, 910 A.2d 986 (2006).

A

The defendant claims that his right to due process was violated because the revocation of probation hearing and the arrest warrant application did not provide sufficient notice of the specific incidents of the alleged violations of probation for failure to report. We do not agree.

The following additional facts are relevant to this issue. The conditions of probation form, signed by the defendant, contained ten standard conditions of probation and several court-ordered special conditions. Standard condition number two required that the defendant, during the period of probation, “[r]eport as the [probation [o]fficer directs, give immediate notice if arrested and, if incarcerated, report to the [probation [o]fficer upon your release.” Standard condition number four, required that the defendant “not leave the [s]tate of Connecticut without permission from the [probation [o]fficer.”

On May 10, 2005, probation officer Ward attested in a warrant application that the defendant, among other things, “violated standard condition of probation [number two].” Ward also averred, in a prior paragraph of the warrant application, that “on April 14, 2005, this affiant [Ward] instructed [the defendant] to report on [April 18, 2005] but he respectfully declined stating that he would be traveling out of state on business but that he would report on [April 25, 2005]. At this time, [the defendant] was advised that he did not have permission to travel out of state. On [April 25,2005], [the defendant] failed to report. As of this writing, [the defendant] has failed to make contact with this affiant.”

When considering the defendant’s violation of probation, the court specifically found that the defendant “was advised of his conditions of probation on four occasions . . . [and] that the defendant was aware of the . . . standard conditions of probation, which include [the requirements] to report ... as [the] probation officer directs, and to not violate any law of this state . . . .” The court went on to find that “[t]he testimony of the probation officer . . . indicated that the defendant did not show [up] as the probation officer [had] directed. Specific dates reported are January 29, 2001, April 2, 2002, April 23, 2002, August 4, 2002, and November 12,2002. The court finds the testimony of the probation officer credible. The fact that the defendant appeared on the other dates does not eliminate the basis of a violation of failure to report.” After considering those facts, the court then found that “the defendant did violate the terms and conditions of his probation as it relates to failure to report as the probation officer directs.” The court, however, made no specific finding on the record concerning the April 18, 2005 date on which the defendant also failed to report.

The defendant does not contest that he failed to report on those specific dates. Rather, he argues that the court improperly, and in violation of his right to due process, allowed Ward to testify concerning the defendant’s failure to report on dates between 2000 and 2002. He argues that he vehemently had objected to this testimony because those missed dates were not listed in the warrant application. He reasons that because the warrant listed only April 18, 2005, as a specific date, he had no notice that any other dates on which he had failed to report could form the basis for a violation of probation. We are not persuaded.

General Statutes § 53a-32 (a) requires that 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 . . . .” The defendant was charged with one count of violation of probation on the basis of violating two standard conditions of probation, violating the criminal laws and failing to report as directed. During the violation of probation hearing, the state sought to introduce evidence of the defendant’s failure to report on several occasions. When the defendant objected on the ground that the arrest warrant listed April 18, 2005, as the only specific date on which he had failed to report, the court overruled the objection, explaining that paragraph ten of the warrant application provided “sufficient notice to the defendant that the hearing would involve his reporting as directed [to] the probation officer.”

Paragraph eight of the arrest warrant application specifically listed April 18, 2005, as a date on which, among other things, the defendant failed to report as directed. Subsequent to the allegations set forth in paragraph eight, however, paragraph ten, in its entirety alleged: “In addition, this affiant [Ward] feels that [p]robable [c]ause exists to believe that the accused has violated: [standard [c]ondition(s) of [probation: [number two, which requires the defendant to] [r]eport as the [probation [o]fficer directs, give immediate notice if arrested and, if incarcerated, report to the [probation [o]fficer immediately upon your release.”

On the basis of the allegations contained in paragraph ten of the arrest warrant application, which put the defendant on notice that his failure to report as directed was one of the bases for the violation of probation charge, and the evidence offered at the hearing concerning the many dates on which the defendant failed to report as directed, we conclude that the defendant had sufficient notice of the manner in which he was alleged to have violated his probation.

B

The defendant next claims that his right to due process was violated because there was an unreasonable preaccusation delay in charging him with a violation of probation for failing to report as directed several years earlier. He argues that the delay of two and one-half years to five years prejudiced him “because he was unable to properly prepare his defense. ” We are not persuaded.

The law is quite clear that “[i]n order to establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant.” State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985). The record in this case does not demonstrate either of these requirements.

First of all, the defendant does not explain how this delay interfered with his defense preparation. Quite to the contrary, the defendant stated to the court during his allocution that he had no malicious intent in failing to report to his probation officer as directed “on several occasions.” In his appellate brief, he also states: “The defendant admits that the alleged incidents occurred.” Accordingly, the defendant has never contested that he failed to report as directed either at his violation of probation hearing or on appeal. On the basis of these admissions, we can discern no manner in which this preaccusation delay could have implicated his defense preparation, nor does the defendant explain that to us.

Further, although the defendant argues that “[n]o justification was offered for the delay” by the state, it is the defendant’s burden to show that the delay was wholly unjustifiable. This he has not attempted to do. Accordingly, he has failed in his burden of proof.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (3) such other person is physically helpless . . . .” General Statutes § 53a-65 (6) defines “physically helpless” to mean a person who is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

       We note that in response to a specific inquiry by Justice McDonald during oral argument before this court, the defendant’s appellate counsel specifically stated that he was not making a Strickland argument. See State v. Strickland, 42 Conn. App. 768, 773-74, 682 A.2d 521 (1996) (“[T]he court may modify or enlarge a defendant’s conditions of probation. . . . This power is not given to the office of adult probation.” [Citation omitted; internal quotation marks omitted.]), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997).

       We also note that the defendant did not file a request for a bill of particulars.