author: BEACH, J.

text:
    STATE OF CONNECTICUT v. SCOTT C.

    (AC 29920)
    Flynn, C. J., and Bishop and Beach, Js.

      Argued November 12, 2009
    officially released March 23, 2010

      David T. Grudberg, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Richard J. Rubino, assistant state’s attorney, for the appellee (state).

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

   Opinion

BEACH, J.

The defendant, Scott C., appeals from the judgments of conviction rendered after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). All counts related to incidents involving his minor stepdaughter, which occurred at various times from 1998 through 2006. On appeal, the defendant claims that (1) the expert testimony at trial exceeded the scope of opinions disclosed by discovery and the permissible bounds of expert testimony in sexual abuse cases, and (2) the trial court erred in denying his posttrial motion for a new trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The victim, A, lived in Hartford for eight years with her mother, her half sister, her half brother and the defendant, her stepfather. Starting when A was ten years old, the defendant began sexually assaulting her in their home. At first, the defendant touched A’s chest and vaginal area over her clothing. When A was eleven years old, the defendant began penetrating her digitally in the basement of their home. When A was twelve, the defendant began having sexual intercourse with her. A tried to resist the defendant’s advances by “hitting him and kicking him, punching him, [trying] to scratch [him], whatever [she] could do.” The last time the defendant had sexual intercourse with A in Hartford was when A was thirteen years old.

In March, 2004, A and her family, including the defendant, moved to a different residence in Canton. The defendant continued to force A to have sexual intercourse with him in the new home. The last time the defendant and A had sexual intercourse was in June, 2006.

On August 7,2006, the defendant disciplined A. Upset that the defendant was yelling at her, A went to her mother and told her that the defendant was a rapist. This was the first time A disclosed any allegations that the defendant had sexually assaulted her. A’s mother “freaked out and called the police.” The defendant then removed the telephone cord from the wall and shut off the power to the home. A and her mother subsequently went to the Canton police department to file a complaint against the defendant. Shortly thereafter, A and her mother went to the Hartford police department to lodge a complaint against the defendant there, as well.

On August 17, 2006, A told the Canton police that she did not want to proceed with the prosecution of the defendant and that she had been mad at him and made up the allegations. A told the Canton police department that she had been upset with the defendant’s attempts to control and to discipline her. She also indicated that she had a dispute with him over finances regarding $400 that he had loaned to her. Kevin Wilkinson, an officer with the Canton police department, asked A to elaborate on why she did not want the defendant to be prosecuted. A then stated that “she didn’t make it up, she just wanted this all to end. She didn’t want to have to testify and go to court. And she just wanted the defendant out of her life.” A said that she recanted her story because her mother told her that it was “messing her up and messing [her] family up.” A also told her brother and her mother that she made up the allegations because “she hated [the defendant] and she wanted him out of her life.”

At all relevant times, A was a patient of a pediatrician, Sherry Banack. As part of A’s visits to Banack, during which A was sometimes accompanied by the defendant, A filled out a form indicating that she was not sexually active and that she was not concerned about pregnancies or sexually transmitted diseases. A apparently was not concerned about becoming pregnant by the defendant because he had told her that he had had a vasectomy. At no time did A inform Banack that the defendant was sexually assaulting her, despite some opportunity to do so when the defendant left A alone with Banack. After the allegations of sexual abuse had been made against the defendant, he called Banack and said: “Sherry, didn’t you, like, examine her? Didn’t you check her?” Banack took the defendant’s inquiries to be a question as to whether she had performed a pelvic examination on A. Banack replied, “no, I don’t routinely do that.” This conversation led Banack to believe that the allegations were untrue because she thought “he would not have said that to [her] if he was guilty.”

The state presented an expert witness, Diane Edell. By agreement of counsel, Edell testified after the defendant presented his witnesses. She was offered as an expert to testify about the late disclosure of sexual abuse by victims; she gained expertise from her work with a multidisciplinary team that investigates child sexual assault allegations in Connecticut. Edell testified as to common characteristics of sexual assault cases in which the victims did not disclose the assaults until well after they had occurred. She testified that in sexual abuse cases there is rarely any medical evidence, the abuse occurs in secrecy and disclosures of the abuse usually are delayed. She also stated that often the victim and the offender know each other and that alleged offenders look like “everyday people.” Edell explained that there were several causes for late disclosure by the victim, including the relationship between the offender and the victim, the victim’s fear of destruction of the family unit if she discloses the abuse and the victim’s embarrassment and guilt over the abuse that is occurring. Edell then went on to elucidate how, in her experience, purposeful or accidental disclosure occurs. She described that it was not unusual for a victim of sexual abuse later to recant her allegations. Defense counsel’s brief cross-examination of Edell elicited that Edell’s testimony was not related to anything that specifically happened in this case.

I

The defendant first claims that statements made by Edell were improper because they (1) exceeded the scope of the state’s pretrial disclosure and, thus, strayed beyond the scope of the court’s ruling permitting Edell’s testimony, (2) encroached on the jury’s role by imper-missibly commenting on the credibility of the victim and (3) were improperly inflammatory. We decline to review this claim.

As a preliminary matter, the state argues that this claim was not preserved for appellate review because the defendant failed to object to Edell’s testimony on these particular grounds and, instead, objected only to the state’s late disclosure of Edell. The defendant argues that his claim is preserved on appeal because he objected prior to juiy selection to any expert testimony in this case. We agree with the state and conclude that the defendant’s claim is unpreserved because of his failure to object at any time to the substance of Edell’s testimony.

The following facts and procedural history are relevant. On January 31, 2007, the defendant filed a request for disclosure and inspection in which he requested, among other things, “[a]ny reports or statements of experts made in connection with the offense charged . . . which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at trial . . . .” The state did not respond to the defendant’s motion with any information about a potential expert in this case.

On February, 1, 2008, the first day of jury selection, the state informed the court that its case-in-chief would consist of two witnesses, the victim and an unnamed individual who would “testify as an expert [as] to why individuals, victims, late disclose.” The defendant objected to the state’s proposed expert witness on the ground that the state failed to provide any information about this expert witness until the eve of trial. The court reserved judgment, allowing the state to add the expert to its witness list and instructed the parties that it would revisit the issue prior to the introduction of evidence.

The court heard further argument on the defendant’s request to strike the expert from the state’s witness list on February 5, 2008. The defendant reiterated his argument that the expert should be precluded because the state did not disclose its intention to present an expert witness until the first day of jury selection. He argued that he was prejudiced by the introduction of any expert testimony because the state had provided him with only the expert’s identity and the vague idea that she would testify about late disclosure. The state responded that there were no reports from this expert, the expert had never met with the victim, the expert did not know the facts of the case and the expert would “testify entirely to the generalities of late disclosure.”

The court stated that “this type of evidence, the use of a person who is not going to testify to a particular fact of this case, but just as to general concepts as an expert, is [a decision] that you tend to make later in the day because you have to assess your case and make a determination typically whether you need this kind of testimony.” It did not “fault the state with respect to its failure to disclose the name of the witness a year ago.” Finding that the state had not acted in bad faith, the court denied the defendant’s motion. It did, however, “direct the state to work with [defense counsel] to coordinate either an in-person conference or a telephone call with the witness to discuss his or her expected testimony and any other aspects of the delayed reporting concept, which this witness is going to testify to.” The court also noted that “this type of testimony is not novel” because “there’s a whole body of literature which speaks to the concept of delayed reporting in sexual assault cases.”

As stated earlier, at trial, the state called Edell as its expert in delayed reporting in sexual assault cases. Edell is a licensed clinical social worker employed with the Center for Youth and Families, a part of Charlotte Hungerford Hospital in Torrington, and serves as a member of the Governor’s Task Force on Justice for Abused Children, a group that monitors the investigation of cases of sexual abuse and serious physical abuse of children. Edell has extensive experience in interviewing children who have made allegations of abuse, and she has trained others throughout the state on how to conduct such interviews.

Edell testified that there are common characteristics in child sexual abuse cases, including common reasons why most disclosures of child sexual abuse are delayed. She further testified as to the manner in which victims of child sexual abuse typically disclose the abuse and explained that many victims later recant their allegations. Finally, Edell testified as to how children undergoing sexual abuse cope with the abuse. She noted two examples, Oprah Winfrey and a former Miss America, who had coped with sexual abuse for years before disclosing the abuse much later in life. Defense counsel did not object to any of Edell’s testimony, and there was no “dry run” in the absence of the jury. He briefly cross-examined Edell and highlighted the fact that her testimony was not related specifically to anything that occurred in this case. Edell was the last witness to be heard by the jury before counsel made their closing arguments. The defendant’s objection to an expert’s testifying at trial, as noted previously, was limited to prejudice stemming from the state’s late disclosure of its intention to use an expert. On appeal, the defendant does not claim that the court improperly permitted the state to call Edell as an expert. Rather, the defendant claims for the first time that Edell improperly testified beyond the scope of the state’s proffer and, thus, beyond the scope of the court’s ruling to allow the expert testimony. This argument was never presented to the trial court.

“This court reviews rulings solely on the ground on which the party’s objection is based. . . . [A]rticulating the basis of the objection alert[s] the court to any claims of error while there is still an opportunity for correction.” (Citation omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 310, 664 A.2d 743 (1995). “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court . . . .” (Internal quotation marks omitted.) State v. Gebhardt, 83 Conn. App. 772, 778, 851 A.2d 391 (2004).

In the alternative, the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine under Practice Book § 60-5. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

The defendant argues that his claim raises a constitutional issue because it invokes his right to a fair trial and his right to a trial by jury. He claims that the expert testimony improperly encroached on the functions of the jury by determining issues of credibility of the witnesses. We are not persuaded. In State v. Toccaline, 258 Conn. 542, 550, 552, 783 A.2d 450 (2001), our Supreme Court held that the defendant’s unpreserved claim that the trial court improperly permitted an expert witness to offer his opinion as to the credibility of the victim was not reviewable under Golding or the plain error doctrine. Noting that the defendant was attempting to “put a constitutional tag on a nonconstitu-tional evidentiary ruling,” the court concluded that “the presentation of [the expert’s] statements to the jury in the absence of such an objection did not implicate a constitutional right or result in a fundamentally unfair trial.” (Internal quotation marks omitted.) Id., 550-51. Accordingly, in this case, the defendant’s claim is evi-dentiary in nature and, as such, fails under the second prong of Golding.

The defendant also seeks to prevail under the plain error doctrine. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). The defendant cannot prevail under this doctrine because he has not established that this is a truly extraordinary situation that warrants reversal. Accordingly, we decline to review the defendant’s claim that the court improperly permitted Edell to testify beyond the scope of the state’s proffer.

II

The defendant’s second claim is that the jury’s verdict was so clearly against the weight of the evidence that the court improperly denied his motion for a judgment of acquittal or for a new trial. We disagree.

The following procedural histoiy is relevant to the defendant’s claim. After the jury returned its guilty verdict, the defendant filed a motion for a judgment of acquittal, which alternatively sought a new trial. The motion cited three bases for relief: (1) the court improperly denied his motion to preclude the state’s expert witness, (2) the evidence was insufficient to sustain the conviction and (3) the jury likely based its verdict on improper speculation and conjecture, as evidenced by questions raised during its deliberations and stated in a note to the court. The court denied the motion on March 3,2008. On April 25,2008, the court, nonetheless, heard argument on the same motion for a judgment of acquittal or, alternatively, a new trial. In his oral argument, defense counsel did not address the ground that the court improperly refused to preclude the testimony of the state’s expert witness. The court again denied the defendant’s motion. On appeal, the defendant appears to be claiming error only with regard to the denial of his motion for a new trial.

We review the court’s decision to deny a motion to set aside a verdict for an abuse of discretion. State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 186, 842 A.2d 567 (2004); State v. Fitzgerald, 257 Conn. 106, 112, 777 A.2d 580 (2001).

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . That power, however, is subject to specific limitations. The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality. . . . Within these parameters, furthermore, the trial court may set a verdict aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury. . . . The authority of the trial court to set aside a verdict that is against the weight of the evidence is grounded in the fact that the action of a jury may be as unreasonable, and as suggestive of being produced by improper influences, in passing upon the credibility of witnesses and in the weighing of conflicting testimony, as in any other respect. It is one of the duties of a judge, in the due performance of his [or her] part in jury trials, to see to it that such influences, apparently operating upon the jury, do not prevail, and manifest injustice thereby be done.

“As we repeatedly have emphasized, the trial court is uniquely situated to entertain a motion to set aside a verdict as against the weight of the evidence because, unlike an appellate court, the trial [court] has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. . . . Indeed, we have observed that, [i]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. . . . [T]he trial judge can gauge the tenor of the trial, as we, on the written record cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Citations omitted; internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 200-202, 749 A.2d 1192 (2000).

The defendant first reiterates his line of reasoning in his previous claim that the court improperly permitted the state’s expert to testify beyond the proffer of the state and beyond the permissible bounds of expert testimony in sexual abuse cases. In his motion for a new trial, the defendant argued that the court improperly denied his motion to preclude Edell from the state’s witness list on the basis of late disclosure. As stated in part I of this opinion, we decline to review the defendant’s claims that the substance of the expert’s testimony was improper because this issue was not preserved properly.

The defendant then argues that his motion for a new trial should have been granted based on a claim that the verdict was against the weight of the evidence because no reasonable jury could have found A’s testimony credible. In arguing that A’s testimony was not credible, the defendant relies on his three witnesses, who each presented testimony that conflicted with A’s testimony. The defendant’s first witness, A’s half brother, testified that after A disclosed the sexual abuse, he questioned A about whether she had made up these allegations. He stated that A told him that she had made up the allegations because she disliked the defendant. A’s mother, the defendant’s second witness, testified similarly that A told her she had made up the allegations after her initial disclosure. Finally, A’s pediatrician testified that she had treated A for several years and that at no time did A mention any abuse. In fact, A had repeatedly filled out a questionnaire in her office indicating that she was not sexually active and, therefore, was not concerned about pregnancy or sexually transmitted diseases. The defendant telephoned the pediatrician after A accused the defendant of sexually abusing her to determine whether the pediatrician had ever performed a pelvic examination on A. The pediatrician stated that she had never performed such an examination. She thought that the defendant was not guilty because a guilty person would not have made such a telephone call. The defendant urges us to conclude that the testimony of his witnesses cast such doubt on the credibility of A’s testimony that the jury must have been guided by improper influences to have found him guilty.

The issue presented to us, then, is whether we should reverse the court’s finding that the jury reasonably could have credited A’s testimony. “In reviewing the denial of a motion for a new trial on the basis of a claim of lack of credibility, [w]e assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. McCarthy, 105 Conn. App. 596, 605, 939 A.2d 1195 (2008), cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). The jury had the ability to observe A and to evaluate her testimony along with the testimony of the defendant’s witnesses; the assessment of their credibility is the function of the jury, not an appellate court. The factual situation presented is not so extreme that we can confidently reverse the trial court’s assessment.

The defendant’s final claim is that his motion for a new trial should have been granted because the jury’s verdict was based on speculation and conjecture. He bases his claim on the note from the jury, which, he asserts, “suggests that the jury may well have been focused on issues beyond those raised by the evidence in the courtroom,” in conjunction with the fact the jury deliberated for a relatively brief period of time. During deliberations, the jury sent a note to the court that presented three questions: “(1) Did Miss A ask for the [trial]?” “(2) [C]ould Miss A have stopped the [trial]?” and “(3) [W]as Miss A required to testify at the [trial]?” The prosecutor, defense counsel and the court agreed that the court could not answer the jury’s questions. The court, therefore, responded to the jurors’ questions by informing them that they must render a verdict based on the evidence and instructions provided by the court. The court refused to answer their questions, stating that “[f]or me to answer these questions, I would have to reach into facts which extend beyond the evidence that you heard, and I’m not allowed to do that nor are you; nor are you allowed to speculate, for that matter.” Shortly thereafter, the jury returned a verdict of guilty on all counts.

The court did not find that the jury’s verdict was the result of speculation and conjecture. As the defendant concedes, A’s testimony was adequate to establish each element of the crimes charged. “Moreover, we cannot infer misconduct from the duration of the jury’s deliberation. The length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict. In fact, the length of time of the jury’s deliberations is a double-edged sword. A short deliberation, rather than being indicative of a lack of diligence, may in fact attest to the strength of the [prevailing party’s] case.” (Internal quotation marks omitted.) State v. Miller, 56 Conn. App. 191, 200, 742 A.2d 402 (1999), cert. denied, 252 Conn. 937, 747 A.2d 4 (2000). Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a new trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       We note that the conduct that gave rise to the risk of injury charge allegedly occurred between October 11, 1998, and March, 2004. Although § 53-21 was amended during that time, there is no dispute that the conduct in which the defendant allegedly engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53-21.

       The defendant is not claiming on appeal that the court erred in permitting the expert to testily after the state first informed the defendant of its intention to use an expert on the eve of trial.

       It is unclear from the record whether defense counsel actually ever conversed with the state’s expert.

       “The defendant’s motion for a new trial differs from a motion for acquittal in that it does not dispute that the state presented sufficient evidence, if found credible by the jury, to sustain her conviction. The defendant maintains, instead, that the exculpatory evidence he offered in his defense was so strong that the trial court improperly refused to rule that the verdict was contrary to the manifest weight of the evidence.” State v. Hammond, 221 Conn. 264, 267, 604 A.2d 793 (1992).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    GEREMIA CHAPARRO v. COMMISSIONER OF CORRECTION
    (AC 30256)
    Harper, Lavine and Pellegrino, Js.

      Argued December 1, 2009
    officially released March 23, 2010

      Gennaro Bizzarre, special public defender, for the appellant (petitioner).

      Michael Proto, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, chief state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Geremia Chaparro, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly refused to order that the terms of his plea agreement be enforced. Specifically, he alleges that the proper amount of jail credit had not been applied toward his sentence and that the court improperly found that his claim was barred by res judicata and procedural default. We affirm the judgment of the habeas court.

The following facts and procedural history provide the necessary backdrop to the disposition of the petitioner’s appeal. On December 5, 2005, the petitioner was arrested and charged with one count of possession of narcotics in violation of General Statutes § 2 la-279 (a) and two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b). The petitioner did not post bond and was confined to the custody of the department of correction (department). On January 25, 2006, while the petitioner was confined, he was subsequently arrested and charged with larceny in the second degree in violation of General Statutes § 53a-123, criminal impersonation in violation of General Statutes § 53a-130 and forgery in the first degree in violation of General Statutes § 53a-138. That arrest related back to an incident on March 4, 2005, in which the petitioner cashed his father’s federal income tax return check without authorization.

On July 11, 2006, pursuant to a plea agreement, the petitioner pleaded guilty to the aforementioned charges. The petitioner also pleaded guilty to having violated his probation in violation of General Statutes § 53a-32. The court, Shluger, J., terminated the petitioner’s probation and imposed a sentence of ten years incarceration, suspended after five years, and four years probation for the first arrest, with a concurrent term of five years incarceration on the second arrest. The total effective sentence was ten years suspended after five years incarceration. After the petitioner had pleaded guilty to each of the charges individually, but just prior to the imposition of his total effective sentence, the following colloquy took place between the petitioner’s counsel and the court:

“The Court: ... Is there anything you would like to add counsel?
“[The Petitioner’s Counsel]: Yes, Your Honor. [The petitioner] has been incarcerated since December 5 or 12, I believe it is. I would just like to make sure that he gets credit on all files for that period of incarceration.
“The Court: All right, I can’t do the computation here, sir, but I will have the mittimus reflect that you are given all appropriate jail credit as computed by the department of correction.
“[The Petitioner’s Counsel]: Okay.”

The department thereafter calculated the petitioner’s discharge date as January 24, 2011, or five years from the date of the second arrest. The department did not afford the petitioner credit on his sentence for the second arrest for the fifty days he served between the first and second arrests. Those fifty days are at issue in this appeal.

On April 10, 2007, the petitioner filed a petition for a writ of habeas corpus, claiming that he had been deprived of his state and federal constitutional rights because the respondent, the commissioner of correction, “illegally lengthened [the] petitioner’s confinement and this constitutes a failure on behalf of the state to honor the plea bargain into which petitioner entered into with the state.” The petitioner specifically claimed that he expected to receive jail credit on both arrests from December 5, 2005, but, instead, received a total effective sentence longer than the agreed upon sentence. While the petitioner’s habeas action was pending, on September 13, 2007, the petitioner filed a motion for a revised judgment mittimus, seeking specification that he was to receive credit for his time served dating back to December 5, 2005, on both arrests. On October 26, 2007, the court denied the petitioner’s motion without an evidentiary hearing. The petitioner thereafter moved for reconsideration, and on March 31, 2008, the court denied the motion, finding that “there was no implied promise by the state and no agreement between the parties on [the issue of jail credit].” The petitioner did not appeal from either the original denial or the denial of the motion for reconsideration.

On July 7, 2008, the respondent moved for summary judgment, arguing that the claims made in the petitioner’s habeas petition were barred by res judicata and procedural default. On July 25, 2008, the court, Sahú-man, J., rendered summary judgment in the respondent’s favor. As to the claim of res judicata, the court found that the petitioner, in his motion for reconsideration, received a fair and full opportunity to litigate his Santobello claim of an illegal sentence before the sentencing court. As to the claim of procedural default, the court found that “[t]he petitioner’s failure to appeal [from] the sentencing court’s denial of his Santobello motion constitutes a procedural default and thus an alternative ground for granting the motion for summary judgment.”

The petitioner filed a petition for certification to appeal on August 4, 2008, which the court granted on August 5, 2008. The petitioner filed the present appeal on August 19, 2008. The petitioner claims that the court incorrectly concluded that it could not order modification of the terms of the plea agreement as the petitioner understood them to be. Specifically, the petitioner contends that because his sentence did not accurately reflect the plea agreement, the habeas court had the authority to direct the sentencing court to resentence him in conformity with the terms of the agreement. The respondent argues that the court correctly denied the petitioner relief on the grounds of res judicata and procedural default because the petitioner’s claim was denied on the merits, and he failed to appeal from that decision. The petitioner requests that we reverse the court’s judgment and remand the case to the habeas court for trial on the merits of his Santobello claim or, in the alternative, if he was required to appeal from the denial of his motion to correct, that we restore his right to appeal. We agree with the habeas court and conclude that the petitioner is procedurally defaulted.

The habeas court’s conclusion that the petitioner is procedurally defaulted from raising his sentencing claim before the habeas court involves a question of law. Our review is therefore plenary. See Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). Practice Book § 43-22 provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” This court has stated that “ ‘in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to Practice Book § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus.’ ” Zabian v. Commissioner of Correction, 115 Conn. App. 144, 151, 971 A.2d 822 (2009), citing Cobham v. Commissioner of Correction, 258 Conn. 30, 39, 779 A.2d 80 (2001). In Zabian, the petitioner argued that he was not required to appeal from the denial of his motion to revise his sentence before he could pursue his habeas claim and that the purpose of a motion to correct an illegal sentence pursuant to Practice Book § 43-22 could be accomplished without requiring a direct appeal. See Zabian v. Commissioner of Correction, supra, 149. Citing Cobham, this court disagreed with the claim of the petitioner in Zabian.

“In Cobham, the petitioner entered written pleas of nolo contendere and was sentenced by the trial court; three years later, the issue of whether the department . . . properly understood the petitioner’s sentence was brought to the attention of the trial court. After the court clarified its position, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he was incarcerated in accordance with an illegal sentence because the judgment mittimus ordered him to serve consecutively two minimum mandatory sentences. . . . The Supreme Court, noting that Practice Book § 43-22 provided the trial court with the authority to take action to correct an illegal sentence, concluded that the habeas proceeding is not the appropriate vehicle by which to challenge the legality of a sentence.” (Citation omitted.) Zabian v. Commissioner of Correction, supra, 115 Conn. App. 151.

In this case, as in Zabian, the petitioner filed a motion to correct an illegal sentence but failed to file an appeal from the denial of his motion. He is therefore procedural^ defaulted for choosing not to challenge the denial of his motion by filing an appeal with this court. See id., 151-52. “Because the petitioner has failed to follow the proper procedures by which to preserve his challenge to the sentence before having filed this petition for a writ of habeas corpus, his petition is procedurally defaulted, and, therefore, we will review the petitioner’s claim only if he can satisfy the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). . . . Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice. . . . Because [c]ause and prejudice must be established con-junctively, we may dispose of this claim if the petitioner fails to meet either prong.” (Citations omitted; internal quotation marks omitted.) Zabian v. Commissioner of Correction, supra, 115 Conn. App. 152.

The petitioner has failed to establish good cause for his failure to appeal from the denial of his motion to revise his sentence. In his reply brief, the petitioner argues that even if Zabian requires that a petitioner must challenge a denial of a motion to revise an illegal sentence through a direct appeal, he did not have notice of the new law outlined in Zabian. Contrary to the petitioner’s claims, the requirement that a petitioner appeal to this court does not constitute a new precedent that was unknown to the petitioner at the time he filed his habeas petition. Although our recent decision in Zabian clearly laid out the aforementioned requirements, the general rule that habeas petitions “may not be filed until appellate remedies have been exhausted” has long been established. (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993). Further, our Supreme Court has stated that “under Cobham v. Commissioner of Correction, supra, 258 Conn. 38, the petitioner first was required to raise his Santobello claim via a motion to correct an illegal sentence or on direct appeal. As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies.” Orcutt v. Commissioner of Correction, 284 Conn. 724, 737, 937 A.2d 656 (2007). “Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default.” Mercer v. Commissioner of Correction, 49 Conn. App. 819, 824, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). The petitioner has failed to demonstrate good cause for his failure to exhaust any of his available remedies, and, therefore, his claim must fail.

The petitioner also claims that his failure to appeal was based on the fact that an appeal would not have resolved the merits of his Santobello claim because the court did not hold an evidentiary hearing. We conclude that a hearing on the petitioner’s motion was neither required, nor ever requested by the petitioner. “[U]nless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 332, 875 A.2d 510 (2005). “[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule. . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by [officials] . . . would constitute cause under this standard.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, supra, 227 Conn. 137. In this case, the absence of an evidentiary hearing was not the sort of “objective factor external to the defense”; id.; that would constitute cause to overcome the petitioner’s procedural default.

Because we conclude that the petitioner has failed to satisfy the cause or prejudice required to overcome the procedural default, we cannot review his claims. Accordingly, we affirm the habeas court’s decision to dismiss the petitioner’s petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court, wrote in the margin of the pleading that the petitioner “wants presentence confinement credit on both files for [December 5, 2005 to January 25, 2006], but that date precedes the date of his arrest in the second file.”

       See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (“when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”).

       In Cobham, our Supreme Court reasoned that such claims should be raised in the sentencing court because that court has the greatest access to various sentencing remedies and can reach the matter more expeditiously than through a habeas petition. Cobham v. Commissioner of Correction, supra, 258 Conn. 38-39.


author: LAVERY, J.

text:
    SCOTT WARNER v. PLANNING AND ZONING COMMISSION OF THE TOWN OF SALISBURY ET AL.
    (AC 29297)
    DiPentima, Gruendel and Lavery, Js.

      Argued September 16, 2009
    officially released March 23, 2010

      Lorinda S. Coon, with whom, on the brief, was Patrick J. Flaherty, for the appellant (plaintiff).

      Charles R. Andres, for the appellee (named defendant).

      David M. Cusick, with whom, on the brief, was Frank H. Finch, Jr., for the appellees (defendant Dianna Bro-chendorff et al.).
   Opinion

LAVERY, J.

The plaintiff, Scott Warner, appeals from the judgment of the trial court dismissing his appeal from the decision of the planning and zoning commission of the town of Salisbury (commission). He claims that the court improperly dismissed the appeal because (1) he was not required to plead and to prove aggrievement with respect to a 2000 decision by the commission granting an alleged zone change to an owner of abutting property, (2) alternatively, if a showing of aggrievement was required as to the 2000 decision, he was aggrieved, (3) General Statutes § 8-8 (r) did not apply to his collateral attack because the 2000 decision was void ab initio and (4) applying § 8-8 (r) where the commission provided no notice of the 2000 decision violated his due process rights by depriving him of the opportunity to be heard in connection with a government decision that deprived him of his property. We conclude that the plaintiffs failure to comply with the time limitation of § 8-8 (r) is dispositive of the plaintiffs appeal because it bars him from challenging the commission’s 2000 decision. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts and procedural history, as set forth in the court’s memorandum of decision, provide the necessary context for the plaintiffs appeal: “The plaintiff, an abutting owner of real property located at 175 Main Street in Salisbury, has appealed from a decision of [the commission] on January 7, 2005. [Dianna] Brochendorff purchased 175 Main Street consisting of 2.090 acres by deed dated April 15, 2000, from David Minton; the property was described therein as a single parcel. . . . Prior to that conveyance, 175 Main Street had consisted of two (2) lots, which historically had been sold as separate parcels until Minton, the owner of those two parcels since 1971 . . . sold to Brochendorff.” (Citations omitted.)

In a prior related decision filed May 15, 2006, the court, Trombley, J., stated: “On July 21, 2000, the [commission] . . . unanimously approved a motion [by Bro-chendorff] to clarify the boundary line for the CG-20 zone [of Brochendorff s property], as the boundary line of said property, which will go back 200 feet in depth into her property, then west, as shown on the survey map, which will be part of the permanent record, as per § 403 of the Salisbury zoning regulations. . . . This decision resulted in an increase in the amount of land situated in the commercial zone [as compared to the RR-1 residential zone].” (Citation omitted; internal quotation marks omitted.) Warner v. Planning & Zoning Commission, Superior Court, judicial district of Litch-field, Docket No. CV-05-4001847-S (May 15, 2006) (41 Conn. L. Rptr. 456).

In the present case, the court, Sheedy, J., found that nearly five years after approving Brochendorff s motion to clarify the boundary line of the commercial zone, the commission provided notice of a special meeting on January 7, 2005, to consider whether “Brochendorff could convey a portion of her property without the filing of an application for subdivision approval and the granting of the same. All parties to this action attended that meeting. On that date, the [commission] determined: (1) the two parcels previously owned by Minton were merged and became a single parcel by virtue of Minton’s property description in the deed to Bro-chendorff . . . and (2) Brochendorff could divide her property as a ‘first cut’ without obtaining subdivision approval so long as each resulting parcel met the minimum requirements of the CG-20 zone district .... Shortly thereafter, Brochendorff sold off 1.012 acres of her property to [Kristin A. McLallen].” (Citations omitted.)

The plaintiff appealed from these decisions pursuant to § 8-8, challenging not only the “first cut” determination of the commission on January 7, 2005, but also seeking to overturn the alleged change of zone the commission granted to Brochendorff in 2000 due to, according to the plaintiff, the absence of an application, the absence of notice and the absence of a hearing. The plaintiff, who at the time of the 2000 decision was a mortgagee and not the owner of the property abutting that of Brochendorff, claimed that the commission illegally changed the zone boundary on a portion of Bro-chendorff s property from residential to commercial. The plaintiff requested that the court declare the commission’s 2005 action illegal, arbitrary and an abuse of discretion, and that the court also declare the commission’s corresponding 2000 action null and void. Warner v. Planning & Zoning Commission, supra, 41 Conn. L. Rptr. 456.

On appeal, Judge Trombley, in determining the proper scope of the plaintiffs appeal, addressed the plaintiffs challenge of the commission’s alleged zone change in 2000. In a memorandum of decision filed May 15, 2006, the court concluded that the plaintiff was barred from challenging the 2000 decision because (1) aggrievement as to that decision was not pleaded, (2) the plaintiff was neither statutorily nor classically aggrieved by that decision because the plaintiff was not the owner of the abutting property in 2000 and (3) the appeal from that decision was time barred by § 8-8 (r). Id. In light of these determinations, the court subsequently limited the scope of the appeal to the commission’s “first cut” determination on January 7, 2005.

In response, the parties agreed that only the January 7,2005 decision was relevant to the court’s adjudication of the pending appeal. After concluding that the plaintiff was both statutorily and classically aggrieved by the commission’s 2005 decision because of the plaintiffs then current ownership of the abutting property, Judge Sheedy found that substantial evidence supported the commission’s “first cut” determination. As a result, the court affirmed the commission’s decision. This appeal followed, limited essentially to whether the court erred in barring the plaintiff from challenging the commission’s 2000 decision.

I

At the outset, we must address whether this administrative appeal from the commission’s 2005 decision is the proper legal vehicle to decide the validity of the 2000 zoning boundary adjustment action. After reviewing relevant authority, it is clear that our Supreme Court has concluded that general attacks on the validity of legislation need not be brought in the form of declaratory judgment actions. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998). Instead, such attacks can be brought in the form of substantive administrative appeals. Id.

We applied this rule in Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 214, 821 A.2d 269 (2003). In that case, the plaintiff property owner, who was challenging the planning and zoning commission’s denial of a site plan application, sought leave to amend its complaint to add grounds that the zoning regulations relied on by the commission were either not effective or had not validly been adopted in the first place. “[T]he plaintiff essentially sought for the court to consider a challenge to the regulations relied on by the commission as an avenue to obtain relief in its nondeclaratory administrative appeal.” Id., 212. We concluded that the “plaintiff properly pursued its challenges to the regulations in its substantive [administrative] appeal instead of in a separate declaratory action.” Id., 214.

A case more analogous factually to the appeal before us is Hayes Family Ltd. Partnership v. Planning & Zoning Commission, 98 Conn. App. 213, 907 A.2d 1235 (2006), cert. denied, 281 Conn. 903, 904, 916 A.2d 44 (2007) . In that case, the planning and zoning commission amended its regulations governing planned residential zones in 1998. In 2003, the plaintiff filed an application with the commission for a change of regulations, requesting that the commission delete a portion of the 1998 amended regulations, the applicability of which would potentially reduce the number of units the plaintiff could construct on the subject property. At the public hearing on the plaintiffs application, the plaintiff argued that the commission had not given proper public notice of the proposed amendment in 1998, nor did it file a copy of the amendment in the town clerk’s office at least ten days prior to the commission’s hearing on the amendment as required by statute. Additionally, the plaintiff argued the amendment substantively was unnecessary.

The commission denied the plaintiffs request and the plaintiff appealed. Before ultimately dismissing the plaintiffs appeal, the trial court noted that “although the appeal was taken from the [commission’s] 2003 decision, it essentially was a challenge to the [commission’s] 1998 amendment ... of the regulations.” Id., 218. After granting certification to appeal, we affirmed the judgment of the court. In so doing, we allowed the plaintiff to challenge the validity of the commission’s 1998 zoning action in the context of an administrative appeal from the commission’s 2003 decision.

On the basis of the foregoing authority, we conclude that, in the present case, the plaintiffs administrative appeal from the commission’s 2005 decision is a proper legal vehicle to address the alleged illegality of the commission’s 2000 zoning boundary adyustment action.

II

The plaintiff argues that as a result of the commission’s “total and complete lack of compliance with the statutory notice requirements as well as its own regulations in connection with the [commission’s 2000 decision], he and other interested parties were precluded from objecting to the zone change as illegal, ill-considered, imprudent, not in keeping with the town’s comprehensive plan and harmful. The [plaintiff asserts that the] attempted zone change was [thus] void ab initio and could not be relied upon by the commission in 2005.” Consequently, according to the plaintiff, he was not required to take action within one year of the 2000 decision but could collaterally attack it as null and void when the 2000 decision came to light years later, directly affecting his interests. On the basis of our interpretation of § 8-8 (r) and its application to the facts of this case, we are not persuaded by the plaintiffs arguments.

“The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law and our review, therefore, is plenary. ... If the meaning or applicability of a statute is clear from its text, this court in construing it should look no further. See General Statutes § l-2z. If, however, the applicability of a provision is not so apparent, we must undertake a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .

“Section 8-8 (r) provides in relevant part that when a zoning commission fails to comply with a requirement of a general or special law . . . governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the [commission], any appeal or action by an aggrieved person to set aside the decision or action taken by the [commission] on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action.” Although the language of this subsection is both clear and emphatic, it does not include any express limitations as to its applicability, nor does it reference any other provision containing such a limitation. We, therefore, turn to the legislative history of § 8-8 (r) for guidance. See Hayes Family Ltd. Partnership v. Planning & Zoning Commission, supra, 98 Conn. App. 223-24.

In applying § 8-8 (r) to the facts and circumstances of this case, we do not write on a blank slate. In Hayes Family Ltd. Partnership, we concluded that “our examination of documents comprising the legislative history of [Public Acts 1999, No. 99-238 (P.A. 99-238), § 5 of which is codified as § 8-8 (r)] and [Public Acts 2000, No. 00-84] confirms that the legislature specifically intended the limitation period of § 8-8 (r) to apply only to challenges to failures of notice postdating January 1, 1999, as expressed in the latter act. That history indicates that, prior to the enactment of P.A. 99-238, the legislature customarily approved omnibus validating acts on a biennial basis in odd numbered years. Those provisions, passed as special acts, were intended to give legal effect to certain past acts or transactions that otherwise would be ineffective because of a failure to comply with some requirement of the law. Each validating act was intended to retroactively cure defects arising since the effective date of the last such act.

“By passage of P.A. 99-238, the legislature intended to accomplish prospectively and comprehensively what it previously had effected retroactively and piecemeal through the omnibus validating acts, i.e., in regard to actions of zoning entities, instead of curing failures of notice for the previous two years by a general validating provision, P.A. 99-238 prospectively created a new two year limit (now one year) within which to challenge actions taken without proper notice. As originally enacted, P.A. 99-238 was to take effect on July 1, 2000.” (Emphasis in original.) Hayes Family Ltd. Partnership v. Planning & Zoning Commission, supra, 98 Conn. App. 227-28.

Consequently, although the one year limitation period of § 8-8 (r) applies only to notice challenges regarding a decision or action by a commission postdating January 1, 1999, it necessarily follows that we must determine the consequences of a party’s failure to bring an appeal or action within the one year limitation period. The plain language of § 8-8 (r) means what it says— “any appeal or action by an aggrieved person to set aside the decision or action taken by the [commission] on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action.” (Emphasis added.) General Statutes § 8-8 (r). Thus, the statute prohibits an appeal from an action of the commission claimed to have been made without proper notice beyond one year from the date of the action.

The legislature’s intent to bar late appeals is also revealed by subsection (b) of § 8-8 that specifically states: “Except as provided in subsections (c), (d) and (r) of this section . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . . .” General Statutes § 8-8 (b). This subsection’s reference to § 8-8 (r) adds further clarity to the fact that the legislature intended § 8-8 (r) to provide a one year statute of limitations, noncompliance with which will resultantly bar appeals or actions taken outside the one year limitation period.

That conclusion is bolstered furthermore by the general statutory scheme that governs land use appeals. “There is no absolute right of appeal to the courts from a decision of a [planning and zoning commission], . . . Appeals to the court from [commissions] exist only under statutory authority .... Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.” (Citations omitted; internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611— 12, 793 A.2d 215 (2002). Because a statutory right to appeal may be taken advantage of only by strict compliance with § 8-8, when the appeal period expires under § 8-8 (r), the trial court can no longer hear the appeal. See Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

Finally, the manifest purpose of § 8-8 (r) is to reflect a “(1) . . . policy of law, as declared by the legislature, that after a given length of time a [commission] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older claims impose.” (Internal quotation marks omitted.) Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn. App. 803, 809, 682 A.2d 132, cert. denied, 239 Conn. 942, 686 A.2d 120 (1996).

On the basis of the text of the statute, its legislative history, its relationship to existing legislation as well as the legislative policy it was designed to implement, § 8-8 (r) extends to a commission’s failure to comply with laws governing notice but only to the extent of providing a party an avenue to appeal or to challenge the commission’s decision within one year from the date of that decision. In the appeal before us, because the plaintiff is not challenging the commission’s 2005 “first cut” determination but is, in essence, challenging the commission’s 2000 zone boundary adjustment decision, § 8-8 (r) bars the plaintiffs claims. This one year statute of limitations applies, only to challenges based on failures of notice postdating January 1, 1999. The commission’s zone boundary adjustment decision was made on July 21, 2000. It follows that because the plaintiff did not appeal or file an alternative action to set aside this zone boundary adjustment until 2005, § 8-8 (r) bars the plaintiff from doing so approximately five years later.

Ill

The plaintiffs final argument is that the application of § 8-8 (r) violated his due process rights because the commission provided no notice and no opportunity to be heard in connection with the 2000 decision and, as a result, the decision deprived him of his property. Specifically, the plaintiff argues that it “is not simply the deprivation of notice of the zone change [but additionally] it is the deprivation of his property by a decision affecting it adversely without notice and an opportunity to be heard in connection with the substantive criteria [of the comprehensive plan and police power enumerated in the ordinance that] the commission should have applied.” According to the plaintiff, “Connecticut appellate courts refuse to enforce time limits in a manner that would violate a person’s right to procedural due process,” and, therefore, the court construed § 8-8 (r) in a manner that violated his due process protections. We disagree.

For the plaintiff to prevail on his due process claim, he must prove that (1) the property interest he asserts is cognizable under the due process clause, (2) he has been deprived of that property interest and (3) the deprivation of the property interest has occurred without due process of law. Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991). “A constitutionally cognizable property interest is [thus] a prerequisite to the attachment of constitutional procedural and substantive due process rights.” Grimes v. Conservation Commission, 243 Conn. 266, 271-72, 703 A.2d 101 (1997). “[A] statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body.” (Internal quotation marks omitted.) Id., 272. “Due regard must be had to the nature of the proceeding and the individual right affected by it.” (Internal quotation marks omitted.) Protect Hamden/ North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554-55, 600 A.2d 757 (1991).

The plaintiffs property interest in this case is not cognizable under the due process clause. The plaintiffs asserted interest in notice of the commission’s 2000 decision regards a procedural guarantee that does not create a constitutionally protected property interest. Moreover, at the time of the commission’s 2000 decision, the plaintiff did not own the property abutting Brochendorff s parcel. Rather, the plaintiff was a mortgagee of the abutting property and a holder of an expectancy interest. Thus, despite the plaintiffs attempt to graft substantive criteria regarding a comprehensive plan and the police power onto a procedural guarantee, the plaintiff has failed to establish that he was entitled to any procedural guarantees given his status as a mere mortgagee of the abutting property. We conclude that the property interest the plaintiff asserts is not cognizable under the due process clause, and, therefore, this claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the commission, Dianna Brochendorff and Kristin A. McLallen also are defendants in this appeal.

       It is unnecessary, therefore, to address the plaintiffs aggrievement claims.

       We note that trial courts have issued two memoranda of decisions regarding the plaintiffs appeal from the commission’s January 7, 2005 decision. The first decision, by Judge Trombley; Warner v. Planning & Zoning Com

        mission, Superior Court, judicial district of Litchfield, Docket No. CV-05-4001847-S (May 15, 2006) (41 Conn. L. Rptr. 456); concerned whether it was appropriate for the court, in the context of this appeal, to examine the validity of the zone boundary ac(justment action by the commission on July 21, 2000. The second decision, by Judge Sheedy, from which the plaintiff has appealed in this case, concerned whether Brochendorff could convey a portion of her property without filing an application for subdivision approval.

       The plaintiff appeared at the January 7, 2005 meeting and inquired as to how the Brochendorff parcel could be divided when, in his opinion, there was not enough square footage for two legal lots in the RR-1 district.

       The plaintiff argues in his appellate brief that § 8-8 (r) does not apply to his appeal “because it was not ‘an appeal or action ... to set aside’ the [commission’s] 2000 decision [as required by the statute] but sought only a declaratory ruling that the decision was void ab initio.” Because it is clear that the plaintiff made an administrative appeal, his declaratory ruling argument does not affect our determination of the issues in this appeal. See Interlude, Inc. v. Skurat, 253 Conn. 531, 536-37, 754 A.2d 153 (2000) (“[i]t necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratory judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action” [internal quotation marks omitted]).

       At the time of the commission’s 2000 decision, the plaintiff held a mortgage coupled with an expectancy interest on the property that abutted Brochendorff s parcel. His mother owned the abutting property, and he was named the sole heir. The plaintiff became the owner of the abutting property upon his mother’s death on March 9, 2004.

       The plaintiff frames the issue on appeal as follows: “If the 2000 decision [was] valid, the Brochendorff property was mostly in the commercial zone and could be divided. If the 2000 decision was not valid, the January 7, 2005 decision could not stand because there was not sufficient land for two lots in the residential zone. ” Consequently, the plaintiff asserts that the validity of the commission’s 2005 decision was entirely dependent on the commission’s allegedly illegal 2000 decision.

       Although the plaintiff describes the commission’s 2000 action as a zone change, and the commission, conversely, characterizes it as a zone boundary clarification, § 8-8 (r) does not distinguish between these ostensibly differing classifications. Thus, such difference in classification of the 2000 decision does not impact our determination regarding the applicability of § 8-8 (r).

       Although we ultimately determined in Hayes Family Ltd. Partnership, given the year of the commission’s action, that § 8-8 (r) did not operate to bar- the plaintiffs claim that the defendant planning and zoning commission failed to give proper notice in 1998, nonetheless, our discussion regarding the legislative history and intent of § 8-8 (r) is instructive in the present appeal. See Hayes Family Ltd. Partnership v. Planning & Zoning Commission, supra, 98 Conn. App. 229.

       Belying on Hallier v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-05-4008492-S (January 11, 2006) (40 Conn. L. Bptr. 581), the plaintiff argues that “[wjithout proper notice, zoning authority actions are null and void.” (Internal quotation marks omitted.) The cases cited in HaUier, however, all involved causes of action that occurred prior to the passage of § 8-8 (r). Furthermore, “[tjrial court cases ... do not establish binding precedent.” Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 323 n.3, 559 A.2d 220 (1989).

       The plaintiff also claims for the first time in his reply brief that, alternatively, “[e]ven if, as [the] defendants contend, there is no constitutional due process issue implicated, the plaintiff has a right to fundamental fairness under the concept of natural justice that is entitled to protection.” Our Supreme Court has held that the common-law right to fundamental fairness in administrative proceedings is not coextensive with constitutional due process. See Grimes v. Conservation Commission, supra, 243 Conn. 273 n.11. Therefore, because the fundamental fairness claim was not raised in the plaintiffs initial brief, we will not address it. See State v. Hill, 237 Conn. 81, 97 n.23, 675 A.2d 866 (1996) (“[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief’ [internal quotation marks omitted]).


author: STOUGHTON, J.

text:
    IN RE JORDEN R.

    (AC 28128)
    DiPentima, Harper and Stoughton, Js.
    Submitted February 1
    officially released March 23, 2010

      Michael J. Melly, for the appellant (respondent mother).

      Christopher L. Aker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Karen Oliver Damboise, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

STOUGHTON, J.

This appeal is before us on remand from our Supreme Court. The respondent mother appealed from the judgment of the trial court granting the petition by the petitioner, the commissioner of children and families, to terminate her parental rights as to her minor child, Jorden R. This court reversed the judgment in part. In re Jorden R., 107 Conn. App. 12, 36, 944 A.2d 402 (2008), rev’d in part, 293 Conn. 539, 979 A.2d 469 (2009). Following its grant to the petitioner of certification to appeal, the Supreme Court reversed in part and vacated in part this court’s judgment and remanded the case to this court directing it to address the respondent’s remaining claim on appeal, namely, that the court improperly found that termination of the respondent’s parental rights was in the best interest of the child. See In re Jorden R., 293 Conn. 539, 568, 979 A.2d 469 (2009). We affirm the judgment of the trial court.

The facts relevant to our resolution of the respondent’s remaining claim, as set forth by our Supreme Court, are as follows. “The respondent delivered Jor-den, a healthy male child, on June 19, 2005. The respondent was sixteen years old and the father was twenty years old at the time of Jorden’s birth. A mere five weeks later, on July 24,2005, Jorden suffered life-threatening and life-altering injuries, which necessitated the department’s involvement in this case. . . .

“Jorden’s injuries occurred at some point during the night of July 23, 2005, when he was in the exclusive care of his parents. Earlier that day, the father and the respondent, who at the time were living together in the home of the respondent’s parents, left Jorden with the respondent’s mother while they attended a party where they drank alcohol and smoked marijuana. After the party, at approximately 11 p.m., the couple picked up Jorden and proceeded to the home of the father’s grandmother to spend the night. Upon arriving at the grandmother’s house, the respondent prepared Jorden’s formula, took it to the room in the basement in which they were staying and went to sleep. At that point, Jorden appeared normal. The respondent also did not notice anything unusual about Jorden when she woke to feed and change him at approximately 2 a.m.

“At approximately 10 a.m. the next day, while the respondent was feeding Jorden, she noticed that his hand twitched at ten to fifteen second intervals. She identified the twitching as a cause for concern and telephoned her mother for advice. The respondent called her mother multiple times because the twitching continued throughout the day. The respondent and her mother eventually agreed to meet for dinner, at which time they would evaluate Jorden.

“When the father and the respondent brought Jorden to the respondent’s parents’ home at approximately 7 p.m., Jorden was twitching actively. The respondent’s mother inspected Jorden, noticed swelling in the region of his right temple, and told the parents to take Jorden to the emergency room at the hospital. The respondent and the father complied and brought Jorden to the emergency room—ten hours after the respondent first noticed the twitching. There was testimony at trial that this delay likely compromised Jorden’s medical treatment.

“Immediately after the couple arrived at the hospital with Jorden, an emergency room nurse realized the baby was having seizures and called for a physician, who observed that Jorden was suffering from clonic tonic seizures, facial and body twitching and eye deviation. Jorden’s seizures were related to intracranial injuries, which, according to the medical staff treating him, likely had occurred within the previous twenty-four to forty-eight hours. A hospital emergency room physician opined at trial that Jorden’s symptoms were consistent with shaken baby syndrome. The physician stated that Jorden’s internal head injuries had occurred either from a blow to the head or from having been severely shaken and that the bruise was the ‘result of a blow.’ The physician further noted that [Jorden’s] skull and clavicle fractures, coupled with the unexplained mechanics of the injury, were ‘all red flags for abuse and nonaccidental trauma.’ ” Id., 544-46.

“The commissioner subsequently filed the neglect petition and sought temporary custody of Jorden, citing his severe and unexplained physical injuries. See General Statutes § 46b-129 (b). In connection with its order granting temporary custody of Jorden to the commissioner, the trial court ordered, and the department thereafter provided to the parents, specific steps to facilitate reunification. See General Statutes § 46b-129 (d) (6). Those steps called for the respondent, inter alia, to ‘[p]articipate in counseling and make progress toward . . . identified treatment goals . . . .’ One of those goals was for the respondent to deal with issues such as her own history of abuse by the father and his probable batteiy of their child.” In re Jorden R., supra, 293 Conn. 547.

The record reflects that the respondent and the father had a stormy relationship, and that “[d] espite the father’s aggressive and abusive behavior and the couple’s multiple breakups, the respondent was vulnerable to the father’s ‘sweet talk’ and repeatedly reconciled with him. Indeed, the respondent and the father broke up for a brief period following Jorden’s injuries. The respondent eventually took the father back, however, even though she suspected that he was Jorden’s abuser and even though it was contrary to the court-ordered specific steps.

“Notwithstanding the fact that reunification efforts were underway pursuant to the specific steps ordered by the court in connection with the order of temporary custody, the commissioner, on October 27, 2005, filed a petition to terminate parental rights, which stated that the respondent and the father were unable or unwilling to benefit from reunification efforts. . . . Following a trial, the court terminated the rights of both parents pursuant to [General Statutes] § 17a-112 (j). Pursuant to the statute, the trial court found . . . that termination of the parents’ rights was in Jorden’s best interest.” Id., 548-49.

On appeal, the respondent claims that the court improperly found that termination was in the best interest of the child. Specifically, she claims that the decision of the court to terminate her parental rights was against the weight of the evidence and clearly erroneous. We disagree.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) In re Gabrielle M., 118 Conn. App. 374, 376, 983 A.2d 282 (2009).

“On appeal, our function is to determine whether the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence.” (Internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 488, 940 A.2d 733 (2008). Accordingly, “every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id.

Having determined that grounds for termination of the respondent’s parental rights existed, the court proceeded to the dispositional phase of the hearing, during which it determined that termination was in the best interest of the child. This determination must be supported by clear and convincing evidence. Id., 487-88. Additionally, in reaching its determination, the court was required to consider and make written findings regarding seven factors delineated in § 17a-112 (k). See In re Tabitha P., 39 Conn. App. 353, 362, 664 A.2d 1168 (1995). “There is no requirement that each factor be proven by clear and convincing evidence.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 98, 961 A.2d 1036 (2009).

In this case, the court considered and made written findings concerning each of the seven factors mandated by statute and concluded that termination was in the best interest of the child. Furthermore, the court properly examined all of the evidence before it and reached the following conclusions: “With respect to the best interests of the child . . . the court finds that termination of the parental rights ... is in the best interest of the child. Permanency, consistency, affection and stability are crucial for Jorden. The biological parents are incapable of providing the quotidian warmth, affection, consistency, stability and mature care that this special needs child will need throughout his life.

“In finding that termination of the respondents’ parental rights would be in the child’s best interest, the court has examined multiple relevant factors including the child’s interests in sustained growth, development, well-being and stability; his length of stay in foster care; the nature of his relationship with foster parents and biological parents; the degree and quality of contact maintained with his biological parents; and his genetic bond to [his biological parents].

“The court has also balanced the child’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with his biological parents. . . . Under such scrutiny, the clear and convincing evidence in this matter establishes that termination of . . . parental rights is in Jorden’s best interest.” (Citation omitted.) We conclude that these findings are all adequately supported by the evidence in the record and are not clearly erroneous.

The respondent, however, not only challenges the factual findings themselves but also the weight assigned to them by the court. It is not our function to weigh the evidence or to examine the record to determine whether another trier of fact might have reached a different conclusion. See In re Gabrielle M., supra, 118 Conn. App. 377. There is extensive evidentiary support for the court’s finding that termination of the respondent’s parental rights is in the best interest of the child, and we will not substitute our evaluation of the evidence for that of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The child’s father consented to the termination of his parental rights during trial and is not involved in this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Gabrielle M., supra, 118 Conn. App. 376.


author: DiPENTIMA, J.

text:
    KATHLEEN ROBERSON ET AL. v. MELISSA C. AUBIN
    (AC 30435)
    DiPentima, Beach and Stoughton, Js.
    Argued November 18, 2009
    officially released March 23, 2010

      Doris B. DAmbrosio, for the appellants (plaintiffs).

      Heath A. Tiberio, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiffs, Kathleen Roberson and John C. Roberson, appeal from the judgment rendered in favor of the defendant, Melissa C. Aubin. On appeal, the plaintiffs claim that the trial court improperly decided the case (1) on findings of fact that were clearly erroneous, (2) without examining the exhibits and (3) on an incorrect interpretation of the elements of adverse possession. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs’ appeal. The subject of this dispute is a parcel of land of approximately 2400 square feet adjacent to the plaintiffs’ property. The plaintiffs purchased their property, 312 Shore Drive, Coventry, on July 21, 1988, and have resided there since. The defendant is the record owner of the disputed parcel, having purchased the property, 234 Echo Road, Coventry, in February, 1999. The plaintiffs filed a complaint, dated June 12, 2007, in which they claimed an interest in the disputed parcel of land by adverse possession.

Following a one day trial to the court, the court issued a memorandum of decision in which it found that the plaintiffs had not established their exclusive use of the disputed property by clear and convincing evidence. The court therefore rendered judgment in favor of the defendant on the adverse possession claim. This appeal followed.

At the outset, we note that “[t]he essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . . . Adverse possession must be proven by the claimant... by clear and convincing evidence.” (Internal quotation marks omitted.) Gemmell v. Lee, 59 Conn. App. 572, 578, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000); see also General Statutes § 52-575; M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) pp. 2-3.

“Despite [this] exacting standard, our scope of review is limited. . . . Because adverse possession is a question of fact for the trier . . . the court’s findings as to [such] claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Citation omitted; internal quotation marks omitted.) Mulle v. McCauley, 102 Conn. App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).

The plaintiffs first claim that the court improperly issued its decision on facts that were clearly erroneous. In support of this claim, the plaintiffs identified several minor details that the court inaccurately described or misinterpreted. Nevertheless, only when inaccuracies, reviewed in relation to the record as a whole, “undermine appellate confidence in the court’s fact finding process [is] a new hearing . . . required.” (Internal quotation marks omitted.) DiNapoli v. Doudera, 28 Conn. App. 108, 112, 609 A.2d 1061 (1992). The minor inaccuracies here relate to findings that are irrelevant to the ultimate conclusion of the court as to the plaintiffs’ exclusive use of the disputed parcel. Accordingly, those inaccuracies do not undermine our confidence in the court’s decision. See also Martinez v. Commissioner of Correction, 105 Conn. App. 65, 69, 936 A.2d 665 (2007) (“[b]ecause the claimed factual errors were not the bases of the court’s decision, they afford no reason to disturb that decision”), cert. denied, 285 Conn. 917, 943 A.2d 475 (2008).

Furthermore, the plaintiffs, by highlighting some conflicting testimony and the witnesses’ relationship to the parties, urge this court to consider the credibility of the witnesses and the weight of their testimony. The plaintiffs claim that, when presented with inconsistent testimony, the court improperly chose the testimony of one side over that of the other. The fact that this evidence was placed on the record does not, however, establish the plaintiffs’ claim. The trial court might have been unpersuaded of the probative value of the testimony. See DiBella v. Widlitz, 207 Conn. 194, 203, 541 A.2d 91 (1988). “Absent a record that demonstrates that the trial court’s reasoning was in error, we presume that the trial court correctly analyzed the law and the facts in rendering its judgment.” Id., 203-204.

The plaintiffs next claim that the court improperly failed to review the exhibits in deciding the case. We are not persuaded. “[T]he trier is bound to consider all the evidence which has been admitted .... We cannot assume that the court’s conclusions were reached without due weight having been given to the evidence presented and the facts found.” (Citations omitted; internal quotation marks omitted.) Giamattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). Furthermore, the memorandum of decision makes clear that the court considered the exhibits admitted into evidence in deciding that there was insufficient evidence to meet the clear and convincing standard required to support a claim of adverse possession. Because the plaintiffs have failed to show otherwise, this court will assume that the trial court acted properly. See id.

Finally, the plaintiffs claim that the court improperly concluded that they failed to present sufficient evidence to show that they used and enjoyed the parcel of land with open, visible, notorious, adverse, exclusive, continuous and uninterrupted possession for more than fifteen years and, thus, acquired title by adverse possession. We disagree.

“[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession .... Accordingly, shared dominion over property defeats a claim of adverse possession because the exclusivity element of adverse possession is absent.” (Citation omitted; emphasis added; internal quotation marks omitted.) Chuckta v. Asija, 97 Conn. App. 232, 235, 903 A.2d 243 (2006).

In the present case, the plaintiffs assert that the evidence they presented demonstrates that they did more work on the land for a longer period of time than the defendant and is therefore sufficient to support their claim for adverse possession. By acknowledging that the defendant also worked on the property, however, the plaintiffs’ argument necessarily precludes a finding of the requisite exclusivity of use required as an element to establish such a claim. The court found that the evidence offered by the plaintiffs as to their use of the disputed parcel failed to establish, by clear and convincing evidence, the plaintiffs’ exclusive use of the disputed parcel. The court specifically found that the evidence indicated that both the plaintiffs and the defendant maintained the disputed parcel. This finding is supported in the record by the testimony of Heather Delusso, whom the court specifically found to have testified credibly, and that of David Zaccardi. Both stated that they had parked various vehicles and boats on the disputed parcel with the defendant’s permission and that they witnessed the defendant periodically mow and “weed whack” the land. The record supports the court’s conclusion that the plaintiffs failed to establish their exclusive use and, thus, failed to prove their claim that they acquired title through adverse possession.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to her answer and special defenses, the defendant also pleaded a two count counterclaim alleging trespass and vexatious litigation in violation of General Statutes § 52-568. The court rendered judgment in favor of the plaintiffs on the counterclaim, which has not been challenged on appeal.

       For example, the plaintiffs claim that the court described their witness, Valier Daigle, as a “friend” rather than “friendly” and described the defendant’s witness, David Zaccardi, as a “friend and neighbor” instead of the defendant’s “boyfriend.”

       The plaintiffs did not file a motion for articulation pursuant to Practice Book § 66-5.

       Specifically, the court referenced exhibit one, a boundary survey admitted into evidence, three times in its opinion.

       The plaintiffs also argue that § 52-575 (a) requires the defendant to have interrupted their possession of the land by written notice, contesting the plaintiffs’ adverse possession, and by filing a subsequent action. In view of the fact that the plaintiffs have not established their exclusive use of the property, and thus their adverse possession of the disputed parcel, the defendant had no claim to interrupt their possession in writing or otherwise.