author: STOUGHTON, J.

text:
    200 ASSOCIATES, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF THOMPSON
    (AC 24116)
    Foti, Flynn and Stoughton, Js.

      Argued February 26
    officially released June 1, 2004

      John D. Boland, with whom, on the brief, was William H. St. Onge, for the appellant (defendant).

      Robin Messier Pearson, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

Certification to appeal having been granted, the defendant, the planning and zoning commission of the town of Thompson (commission), appeals from the judgment of the trial court sustaining the appeal by the plaintiff, 200 Associates, LLC, from the decision by the commission to deny a subdivision application. On appeal, the commission claims that the court improperly (1) substituted its judgment for that of the commission and failed to defer to the commission’s interpretation of the town’s cul-de-sac regulation, and (2) determined that the commission’s denial of the open space designation in the application was unlawful and arbitrary. We agree with the conclusion of the trial court as to the first issue. We reverse the judgment of the trial court as to the second issue and remand the case for further proceedings on that issue.

The following facts are relevant to our resolution of the issues in this appeal. The plaintiff applied to the commission for approval of a thirty-one lot subdivision on a tract of 56.65 acres located in the town of Thompson. The subdivision included a street 3165 feet in length to be known as Elizabeth Circle. The proposed road runs from Thatcher Road and forms a large circle, or loop, and intersects with itself at what appears to be about 800 feet from its intersection with Thatcher Road. Inside the circle, there are eight building lots, and there are building lots on the outside of the circle. Traffic is permitted to flow both clockwise and counterclockwise around the loop.

The commission denied the subdivision application and set forth six reasons. The plaintiff appealed, and the court sustained the appeal, finding that the commission had acted unreasonably or arbitrarily in denying the application and that the subdivision plans complied with the Thompson subdivision regulations. The commission challenges the trial court’s decision with respect to only two of the six reasons given for the denial by the commission, and the first of those was the principal issue at the hearing on the plaintiffs application.

The first reason for the denial was that the proposed new road, Elizabeth Circle, is a cul-de-sac and exceeds 1000 feet. The Thompson subdivision regulations do not define the term “cul-de-sac,” but § XIII D.l.d provides that a cul-de-sac shall not exceed 1000 feet in length. The commission claims that the court improperly construed the applicable zoning regulations and substituted its judgment for that of the commission in determining that Elizabeth Circle was not a cul-de-sac.

The fifth reason given by the commission was that it did not accept the plaintiffs proposal of land to be designated as open space in the subdivision. Section VII of the Thompson subdivision regulations addresses open space requirements. The commission claims that the court improperly concluded that the commission applied its power unlawfully and arbitrarily by merely rejecting the plaintiffs open space proposal and by concluding that it failed to exercise its regulatory authority to designate the open space. Additional facts will be set forth as necessary.

I

The commission first claims that the court improperly substituted its judgment for that of the commission and failed to defer to the commission’s interpretation of the cul-de-sac regulation. At the outset, we set forth our standard of review. “It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. . . . The commission is entrusted with the function of interpreting and applying its zoning regulations. . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The plaintiffs have the burden of showing that the commission acted improperly. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal .... It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. . . . It is an appellate court function to determine whether the judgment of the trial court was clearly erroneous or contrary to the law; appellate review excludes the retrial of the facts. . . . The Appellate Court does not determine whether the trier of facts could have reached a conclusion other than the one reached. It looks both at the conclusion reached and the method by which it was reached to determine whether that conclusion is correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 195-96, 644 A.2d 964 (1994); see also Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696-97, 628 A.2d 1277 (1993); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.8, pp. 173-77.

We seek to determine the intent of the local legislative body as manifested in the words of the regulation; however, as zoning regulations are in derogation of common-law property rights, “the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms.” (Internal quotation marks omitted.) Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003). The words employed are to be interpreted in accordance with their natural and usual meaning, and doubtful language will be construed against rather than in favor of a restriction. Id. With the foregoing principles in mind, we turn to the commission’s claim.

At the hearing on the plaintiffs application, much of the discussion centered on whether Elizabeth Circle was a cul-de-sac. The commission’s chairman expressed the view that it was a cul-de-sac because it was open at one end only. He said that when the regulations were written, the plan was to limit the length of a street with only one opening to 1000 feet, and a cul-de-sac is a street with only one opening. Counsel for the plaintiff opined that Elizabeth Circle was not a cul-de-sac because there is no turnaround, there are two intersections and there is no closed end.

Because the term “cul-de-sac” is not defined in the regulations, the parties agree that the term should be given its common and ordinary meaning. It is a French term, which freely translates as tail end of the bag. The parties agree that it is commonly used to describe a street closed at one end. The trial court cited a definition from a publication submitted by the commission entitled “Definitions of Surveying and Associated Terms,” which was prepared by a joint committee of the American Congress on Surveying and Mapping and the American Society of Civil Engineers. The publication defines a cul-de-sac street as a dead-end street that widens sufficiently at the end to permit an automobile to make a U-tum. The court also referred to several dictionary definitions of a cul-de-sac. From all of those sources, it is clear that a cul-de-sac is a blind alley or a street open at one end only, or a street closed at one end, usually with a turnaround at the closed end, which does not describe Elizabeth Circle, a loop road that allows traffic to flow in two directions, and does not require that a vehicle be turned around and driven back along its length in order to return to Thatcher Road.

A term that is employed in the regulations may not be interpreted to mean, whatever the commission chooses it to mean. That would render it impossible for a party to discern the true meaning of the term and, thus, to know whether compliance with the regulation is possible. We have stated that “[subdivision regulations cannot be too general in their terms and must contain known and fixed standards that apply to all similar cases. ... A commission’s regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations.” (Citation omitted.) Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 376, 580 A.2d 91, cert. denied, 216 Conn. 832, 583 A.2d 131 (1990); see also Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 335, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). If it is not otherwise defined, a word has its usual and customary meaning, and may not be construed to include that which is not clearly within its terms. The commission construed cul-de-sac to include a loop road configuration, which is not clearly within the ordinary meaning of the term. We agree with the trial court that Elizabeth Circle is not a cul-de-sac, as that term is ordinarily and usually employed. Accordingly, we conclude that the court properly sustained the plaintiffs appeal as to that issue.

II

The commission next claims that the court improperly determined that the commission’s denial of the open space designation was unlawful and arbitrary. Specifically, the commission argues that the court improperly interpreted the regulation and that the commission was not required either to accept the plaintiffs open space proposal or to provide an alternative. We agree with the commission.

As a preliminary matter, we set forth the proper standard of review and applicable legal principles that govern our resolution of the issue. The issue concerns an interpretation of the Thompson subdivision regulation. Accordingly, our review is plenary. See Balf Co. v. Planning & Zoning Commission, supra, 79 Conn. App. 635. “Thus, we must determine whether the conclusions reached by the court are legally and logically correct and supported by the facts in the record.” Id.

The open space proposed on the plans for the subdivision consisted of 13.4 acres, which exceeded the requirement in the regulations that, for the proposed subdivision, was 6.2 acres. In its memorandum of decision, the court noted that after the public hearing, the members of the commission discussed the fact that open space can be accepted in any form that the commission chooses. The court, obviously referring to that part of the regulations that states that “[t]he land so reserved shall be chosen by the Commission for the purpose of conserving . . . resources,” concluded that the commission did not exercise its regulatory authority to designate the open space; instead, it merely rejected the application. That, the court concluded, was an unlawful and arbitrary exercise of its power.

Essentially, the court concluded that once the commission chose not to accept the open space as offered by the plaintiff, the commission was obligated to determine an appropriate location to satisfy the regulations. In failing to do so, the court ruled that the commission acted in an unlawful and arbitrary manner. Our review of §VII of the Thompson subdivision regulations reveals that the commission was not obligated to accept the open space as designated by the plaintiff. Additionally, the town did not have to accept ownership of it. The minutes of the healing reflect the concern of the commission members over potential liabilities that might come with ownership. Although the regulations provide that land reserved for open space shall be chosen by the commission for the purpose of conserving and protecting resources, they require that a developer of a subdivision reserve open space and permit the developer to use one of five methods that the commission finds appropriate. There is no requirement in the Thompson subdivision regulations that the commission must attempt to designate open space in the subdivision after it rejects a proposed open space reservation. We agree with the commission that the developer would not be apt to accept such a designation without at least some consultation. The developer must reserve open space and may elect one of several methods to submit the designation to the commission for its approval. Thus, the court improperly concluded that the commission was obligated either to accept the open space as provided in the plaintiffs application or to designate an appropriate area of open space if it rejects the plaintiffs proposal.

The question that remains is whether there was sufficient evidence before the commission for it to reject the plaintiffs application on the basis of the open space issue. The commission merely stated that it did “not accept the open space area . . . .” “When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the [commission’s] decision.” (Internal quotation marks omitted.) Azzarito v. Planning & Zoning Commission, 79 Conn. App. 614, 618, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).

In this case, the court never searched the record. Instead, it focused on the issue of whether the commission, after rejecting the plaintiffs open space proposal, was required to select an alternate location. We have concluded that such a determination by the court was improper. The appropriate remedy, therefore, is to remand the matter to the trial court so that it may fulfill its obligation to search the record and to determine if the record reveals substantial evidence to support the denial of the plaintiffs application on the open space issue. See Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 464-65, 668 A.2d 340 (1995); Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611-12, 569 A.2d 1094 (1990).

The judgment is reversed in part and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

APPENDIX

       The court heard testimony that the plaintiff was the owner of the land and therefore was aggrieved. See General Statutes § 8-8. That finding has not been challenged on appeal.

       See accompanying appendix, a reproduction of the plot plan showing Elizabeth Circle.

       The reasons for the denial of the plaintiffs application were: “1. The proposed new road is a cul de sac and exceeds 1000 feet; 2. There is no available Department of Transportation approval; 3. No approval from Water Pollution Control Authority; and 4. The proposed road exceeds the length of Thatcher Road; 5. The Commission does not accept the open space area; and 6. Concerns with the proposed drainage.”

       Section Xm D.l.d of the Thompson subdivision regulations provides: “Cul-de-sac shall not exceed 1,000 feet in length. This length shall be measured from the centerline of the street to be intersected by the cul-de-sac to the mid point of the turn-around.”

       Section VII of the Thompson subdivision regulations provides in relevant part: “A. The land so reserved shall be chosen by the Commission for the purpose of conserving natural or scenic resources; protecting cultural, historic or archeological resources, including but not limited to flood plains, streambelts, wetlands, ponds, aquifers, stone walls, specimen trees exceeding 30’ dbh (diameter breast height), wildlife habitat, outstanding forests, ridges, ravines, and ledge outcroppings and other unusual or fragile features; conserving prime and important farmland soils as defined by the Soil Conservation Service; meeting recreational needs of present and projected populations in the area; adding to or creating linkages between existing open space; providing buffer areas between adjoining land uses; implementing the recommendations of the Thompson Open Space Plan.
      “B. A subdivision or resubdivision of any tract of land which results in the creation of 12 or more lots shall reserve open space in an appropriate location for the purpose envisioned by the Commission at the rate of one acre per five lots for public use, except as otherwise provided for in these regulations, as amended. The requirement for open space being dedicated within a subdivision shall be at the option of the Commission.

      * ** *
      “[2. A.] The subdivider may employ, or the Commission may require, that Open Spaces be provided by one of the following mechanisms, as the Commission finds appropriate: 1. Dedication of land to the Town of Thompson. The Commission may accept in a form and manner prescribed by these Regulations, Open Space dedicated perpetually to the Town, or Open Space protected by a Conservation Easement, provided that it determines the public interest would be served by such dedication. However, the Commission is not bound to accept Open Space when it deems such acceptance is inappropriate. In making its determination it shall consider, among other things, the relationship of the Open space to the Plan of Development, access to and use of the Open Space to [and] by the general public, and restrictions of and purposes of the Open Space. Final acceptance of land to be dedicated to the Town is through a Town meeting. 2. Dedication of land to the State of Connecticut as State Park and forest land. 3. Provision of a Conservation Easement with full, limited, or prohibited public access. 4. Provision of private Open Space, such as common land held by an association of homeowners. 5. By conveyance to a non-profit organization dedicated to this conservation of natural Open Space.” (Emphasis added.)

       Additionally, we note that all of the diagrams depicting a circular culde-sac show traffic flowing solely in a counterclockwise direction.

       General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” See also State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994) (“[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary”).

       See footnote 5.

       The following colloquy occurred at the December 17, 2001 hearing on the plaintiffs subdivision application:
      “ [Commission member John Rice]: It’s going to be the town’s responsibility to maintain that, then?
      “[Civil engineer Janet Blanchette]: That’s correct. It’s part of the open space, and it’s part of, part of the formal letter ....
      “[Rice]: What’s part of the open space, this?
      “[Blanchette]: This one. This area here is part of the open space. This is an open space, and this is an open space.
      “[Commission member Charles Paquette]: Now, quite frankly . . . the town has not yet accepted any open space land. ... I think accepting any open space land . . . would have to go through a town meeting, to do so. . . . [I\n the past, we’ve urged, other people to assign this land to ... an association owed by . . . people that buy lots in the subdivision and they would maintain it, as they do in other towns, not something that’s a burden to the town for insurance problems and maintenance problems, and so on and so forth.

      “[Civihengineer Dennis Blanchette]: Well, we, we understand that it’s your open right to decide. We do not . . . (inaudible) the proposal. We thought it made sense to contribute the open space to the town, given the location of it, but we realize that ultimately, if you [ask] us to look at alternate mechanisms, we will do that. . . .
      “[Rice]: Myself, personally, I’d like to see the alternate, one of the alternates, would be, is to relocate this open space, when you indicated previously that, you know, it’s next to town owned property.” (Emphasis added.)

       “In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. . . . [EJvidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The [commission’s] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence ... to support any such reason [however] must be substantial . . . .” (Emphasis added; internal quotation marks omitted.) Evans v. Planning & Zoning Commission, 73 Conn. App. 647, 658, 808 A.2d 1151 (2002); see also Property Group, Inc. v. Planning & Zoning Commission, supra, 226 Conn. 697.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EDUARDO GUADALUPE v. COMMISSIONER OF CORRECTION
    (AC 24180)
    Dranginis, DiPentima and McLachlan, Js.
    Submitted on briefs February 27
    officially released June 1, 2004

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

      Michael Dearington, state’s attorney, and Mitchell S. Brody and Linda N. Howe, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Eduardo Guadalupe, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion when it denied his petition for certification to appeal, (2) improperly rejected his claim that trial counsel provided ineffective assistance and (3) improperly failed to inquire about the volrmtariness of his guilty plea, thereby violating his due process rights. Our examination of the record and briefs persuades us that the court properly denied the petition for certification to appeal and, accordingly, we dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On December 21, 1999, the petitioner was arrested and charged with a narcotics violation. At that time, the petitioner was awaiting sentencing on prior convictions. At the sentencing, the petitioner told the court, Iannotti, J., that he was unwilling to accept a plea on his new file because he wanted to go to trial. Judge Iannotti told the petitioner that any time he spent in jail would not be credited for being in custody while awaiting trial on the narcotics charge.

A special public defender was appointed to represent the petitioner on the new file. She advised the petitioner that it would be difficult to establish at trial his claim that the police had framed him by placing drugs on him. Nonetheless, she told the petitioner that she was prepared to go to trial to advocate for him. Moments before trial, however, the petitioner decided to enter a plea pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). After canvassing the petitioner, the court, Harper, J., accepted the petitioner’s plea. The petitioner subsequently was sentenced to eight years imprisonment.

The petitioner filed a petition for a writ of habeas corpus and an amended petition, alleging that his trial counsel had rendered ineffective assistance by failing to ensure that his plea was voluntary. In addition, the petitioner claimed that when he entered his plea, he understood that his sentence started on the date of his arrest rather than on the day of sentencing. Following a trial, the habeas court denied the petition, concluding that the petitioner had failed to sustain his burden of proving ineffective assistance of counsel. Further, the court found that the petitioner’s claim that he did not know that his sentence would run from the date of sentencing lacked merit because at the 2000 sentencing, Judge Iannotti told him that he would lose the ability to get good time credit on future sentences. Also, when the petitioner was sentenced on the narcotics charge, his special public defender asked that the sentence be imposed retroactively. The request was denied. The petitioner thereafter filed a petition for certification to appeal, which the habeas court denied. This appeal ensued.

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

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 830-31, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

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

The appeal is dismissed.


author: SCHALLER, J.

text:
    CHASE MANHATTAN MORTGAGE CORPORATION v. MANUEL MACHADO, JR., ET AL.
    (AC 23562)
    Schaller, Bishop and McLachlan, Js.

      Argued February 10
    officially released June 1, 2004

      Byron Paul Yost, with whom, on the brief, was Virginia Scott Devlin, pro se, for the appellant (defendant).

      Jennifer S. Allison, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant Virginia Scott Devlin-Machado (Devlin-Machado) appeals from the trial court’s decision rendering summary judgment in favor of the plaintiff, Chase Manhattan Mortgage Corporation (Chase), and the judgment of foreclosure by sale. Devlin-Machado claims that the court improperly granted Chase’s summary judgment motion because there were genuine issues of material fact to support her claims of fraud and duress. We affirm the judgment of the trial court.

On May 31, 2000, Devlin-Machado and her husband, Manuel Machado, Jr., executed a promissory note in favor of Northeast Mortgage, LLC (Northeast), in the amount of $190,400 secured by a mortgage on property in Bethlehem. The note was eventually assigned to Chase. In June, 2001, Chase commenced this foreclosure action after the Machados defaulted on the note. On October 16, 2001, the court granted Chase’s motion for summaiy judgment as to liability only with respect to Devlin-Machado’s husband. On May 20, 2002, Devlin-Machado filed a revised answer and two special defenses. The first special defense alleged in relevant part that “[t]he making and execution of the underlying Promissory Note and Mortgage Deed, by [Devlin-Machado], were the product of fraud committed upon her by her former spouse, the co-defendant herein, [Manuel] Machado, Jr. . . . of which said fraud, [Northeast], the mortgagee, participated in or was aware.” Devlin-Machado alleged that her husband falsely had represented that he received $2638 per month from the United States Department of Veteran Affairs for a disability pension when the actual amount received was $2036. She further alleged that Northeast was aware of that discrepancy when Northeast submitted the application containing the false income information to Ohio Savings Bank (Ohio Savings) for underwriting approval. The second special defense alleged in relevant part that Devlin-Machado “was compelled and coerced to execute and make the obligation to the mortgagee, by signing a promissory note and mortgage, as a result of acts and threats of [her husband] which were wrongful and not permitted by law,” and that “[t]he making and execution of the loan was a result of duress.”

On June 24, 2002, Chase filed a motion for summary judgment as to liability only with respect to Devlin-Machado. On July 15,2002, the court granted the motion with the notation: “See New Haven Savings Bank v. LaPlace, 66 Conn. App. 1 [783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426] (2001); First Charter National Bank v. Ross, 29 Conn. App. 667, 672 [617 A.2d 909] (1992) [appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994)].” On September 23, 2002, the court rendered judgment of foreclosure by sale, finding the debt to be $227,582, and the fair market value of the property to be $275,000. The court ordered the foreclosure sale to take place on December 7, 2002. Devlin-Machado filed the present appeal on October 15, 2002.

“We exercise plenary review over a trial court’s decision to grant a motion for summary judgment. . . . Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . A material fact is a fact which will make a difference in the result of the case.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Krevis v. Bridgeport, 80 Conn. App. 432, 434-35, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004).

I

Devlin-Machado first claims that the court improperly rendered summary judgment because a material issue of fact exists to support her first claim and special defense of fraud. Specifically, Devlin-Machado argues that Chase had constructive notice of the alleged fraud that was committed against her by her husband and the original mortgagee, Northeast. We disagree.

“Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid lien. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. . . . Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. . . . [0]ur courts have permitted several equitable defenses to a foreclosure action.” (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705-706, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). Fraud is an equitable defense to a foreclosure action. Id.

“Fraud involves deception practiced in order to . induce another to act to her detriment, and which causes that detrimental action. . . . The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment.” (Internal quotation marks omitted.) Carr v. Fleet Bank, 73 Conn. App. 593, 595, 812 A.2d 14 (2002).

Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient. Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952). Devlin-Machado did not allege any conduct on the part of Chase that was done to induce her to act. Her claim alleges merely that Northeast was aware of the approximately $600 discrepancy in income received from the United States Department of Veteran Affairs when Northeast submitted the application to Ohio Savings. That does not amount to a claim of fraud against Chase because she failed to allege that either the conduct of Chase or Northeast induced her to act to her detriment. If anything, the facts alleged by Devlin-Machado could amount to a claim of fraud being committed against Ohio Savings by her former husband but not against her. Further, a spouse’s fraud in inducing a spouse to execute a mortgage “does not invalidate it as against the mortgagee unless the mortgagee in some way participated in or knew of the fraud.” (Internal quotation marks omitted.) First Charter National Bank v. Ross, supra, 29 Conn. App. 672. Devlin-Machado did not allege any specific facts showing that the original mortgagee, Northeast, knowingly participated in any fraud against her. She claims only that Chase had constructive notice of the fraudulent circumstances under which the original promissory note was secured. Consequently, because Devlin-Machado cannot satisfy the third element of an action in fraud, summary judgment was appropriate.

II

Devlin-Machado next claims that the court improperly rendered summary judgment because a material issue of fact exists to support her claim and special defense of duress. Specifically, Devlin-Machado argues that she was compelled and coerced into signing the promissory note as a result of acts and threats of her husband.

“The classical or common law definition of duress is any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition.” (Internal quotation marks omitted.) Jenks v. Jenks, 34 Conn. App. 462, 465, 642 A.2d 31 (1994), rev’d on other grounds, 232 Conn. 750, 657 A.2d 1107 (1995). The defendant must prove: “[1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim. . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will.” (Citation omitted; internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 59, 783 A.2d 1145 (2001).

As with Devlin-Machado’s claim of fraud, she failed here to allege that Chase participated in or knew of the alleged duress. Devlin-Machado alleged only that she signed the promissory note under duress caused by her husband’s conduct. We will not invalidate a mortgage agreement against the mortgagee unless it participated in the alleged duress or had reason to know of its existence. Cf. First Charter National Bank v. Ross, supra, 29 Conn. App. 672 (holding fraud does not invalidate mortgage agreement against mortgagee unless mortgagee participated in or knew of fraud). Accordingly, the court properly rendered summary judgment because there was no genuine issue of material fact to support her claim and special defense of duress.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The defendants in the trial court were Virginia Scott Devlin-Machado and her husband, Manuel Machado, Jr. Devlin-Machado filed the present appeal pro se as to her liability only. We therefore refer to her as the defendant.

       Devlin-Machado also claims that the court abused its discretion in rendering summaiy judgment because Chase did not assert “any independent right to assume the special status of a holder in due course” and that the court improperly did not allow her “to argue the doctrine of unclean hands as it applies to the plaintiff.” We need not address those two issues because they were not raised at trial and, therefore, are not preserved for appeal. See Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993). Chase also makes numerous conclusory assertions and claims on appeal that lack both law or analysis in support thereof. We need not review those claims because the plaintiff did not adequately brief the issues. See State v. Parrott, 262 Conn. 276, 290 n.18, 811 A.2d 705 (2003).

       Chase argues, as a threshold matter, that because the rendering of summary judgment as to liability only against Devlin-Machado was a final judgment under Practice Book § 61-3 and because Devlin-Machado did not file a notice of intent to appeal within twenty days of that decision, Devlin-Machado’s appeal should be dismissed as untimely.
      First, because Chase did not file a motion to dismiss the appeal pursuant to Practice Book § 66-8, Chase is deemed to have waived its right to seek dismissal of Devlin-Machado’s appeal as being untimely. See McCarthy v. Bridgeport, 21 Conn. App. 359, 361 n.l, 574 A.2d 226, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). Further, “[t]he purpose of filing a notice of intention to appeal is to preserve until the end of the action an aggrieved party’s right to appeal an order that is a final judgment in its own right.” Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 806 n.3, 793 A.2d 260 (2002). We previously have held that the granting of a motion for summary judgment in a foreclosure action, without a determination by the trial court of the method of foreclosure and the amount of the debt, is not a final judgment. See Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991). Consequently, because the appeal could not have been filed until after the judgment of foreclosure by sale was rendered, there was no need for Devlin-Machado to file a notice of intent to appeal.

       The record does not contain either a memorandum of decision or a transcribed copy of an oral decision. See Practice Book § 64-1. We frequently have declined to review claims when the appellant has failed to provide the court with an adequate record for review. See, e.g., Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997). Our Supreme Court has held that when essential facts are undisputed and the claim involves a question of law, the record is adequate for review. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000). We conclude that the record is adequate for review in the present case because there are no relevant facts in dispute, and Devlin-Machado’s claims involve questions of law.


author: DUPONT, J.

text:
    JOSEPH MCLAUGHLIN v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 24359)
    Foti, McLachlan and Dupont, Js.

      Argued March 26
    officially released June 1, 2004

      Thomas E. Minogue, with whom, on the brief, was George P. Bimbaum, for the appellant (plaintiff).

      Clifton A. Leonhardt, chief counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Aamina Ahmad, assistant town attorney, for the appellee (defendant Richard V. Bergstresser).
   Opinion

DUPONT, J.

The plaintiff, Joseph McLaughlin, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant freedom of information commission (commission), which denied his request for documents from the defendant Richard V. Bergstresser, first selectman of the town of Greenwich (town). The commission ruled that the requested documents were protected by the attorney-client privilege. On appeal, the plaintiff claims that he is entitled to the documents because the attorney-client privilege was either expressly or impliedly waived by Bergstresser. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiffs request for the documents was related to the decision of the Supreme Court in Leydon v. Greenwich, 257 Conn. 318, 777 A.2d 552 (2001), which held that an ordinance restricting access by nonresidents to a town park with a beachfront was unconstitutional. In response to the decision, the town created a beach task force (task force) to study different options for amending the town’s ordinances to comply with the Leydon decision.

The plaintiff, a resident of the town, sent a letter to the board of selectmen and the Greenwich Time, a local newspaper, urging one particular solution for nonresident park access. His proposal and the recommendations of the task force were rejected by Bergstresser as being inconsistent with the Supreme Court’s decision in Leydon on the basis of legal advice the first selectman had received.

Bergstresser and John Wetmore, the town attorney, had received legal advice from Ralph G. Elliot, outside counsel, regarding the various options for bringing the town ordinances in compliance with Leydon. On January 14, 2002, the plaintiff requested copies of all legal advice received, and the minutes and summaries of meetings of the task force, in accordance with the Freedom of Information Act (act), General Statutes § 1-200 et seq. On January 24, 2002, Bergstresser responded to the plaintiffs request. He granted the plaintiff access to task force meeting minutes, but declined to furnish copies of legal memoranda, citing the attorney-client privilege.

On February 5, 2002, Bergstresser published an article in the Greenwich Time regarding the town’s new beach access plan. In that article, he quoted extensively from a letter by Elliot to support the town’s position. The plaintiff then sent another letter to Bergstresser, stating that Bergstresser had waived any privilege that might exist relating to legal advice rendered by Elliot because he had quoted Elliot’s letter extensively in the newspaper article. Elliot had prefaced that letter to make it clear that it was written to assist Bergstresser in answering “continuing questions from townspeople about the meaning and scope of [Leydon] . . . while . . . avoiding the sort of advice-giving that would transform this letter into a confidential communication protected by the lawyer-client privilege. . . .”

Bergstresser responded to the plaintiffs second letter by furnishing the plaintiff with a copy of the entire letter from Elliot, which had been quoted in part in the newspaper. He did not, however, disclose any additional documents. The plaintiff then appealed to the commission, claiming that the legal advice given in other documents or letters was not privileged because the privilege had been waived.

A hearing officer of the commission held a hearing and recommended that the plaintiffs appeal should be dismissed. The commission adopted the recommendation and dismissed the plaintiffs appeal. The commission stated that the disclosed document was created for the purpose of explaining the Leydon decision and its ramifications to the public, and that the document did not constitute legal advice and therefore was meant to be disclosed. As to the remaining documents, the commission held that they were different in substance from the disclosed document. The documents consisted of legal advice, from either Elliot or Wetmore, which were written in the course of a professional relationship, in response to specific questions asked by the board of selectmen or the beach task force, and were given in confidence. The commission found specifically that those documents were exempt from the act’s disclosure requirements pursuant to General Statutes § 1-210 (b) (10) and did not have to be disclosed. The plaintiff appealed to the trial court. The court dismissed the plaintiffs appeal, concluding that the decision of the commission was not illegal, arbitrary or an abuse of its discretion and that the legal findings of the commission flowed logically from the facts.

I

The attorney-client privilege was created “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). The plaintiff claims that by publishing the Elliot letter on the town’s Internet web site and by providing the plaintiff with a copy, Bergstresser had impliedly waived the privilege as to all documents on the same subject by putting the legal advice “at issue.”

The at issue exception to the protection of the attorney-client privilege is a doctrine of implied waiver by a party of that right. The at issue doctrine is invoked only when the contents of the legal advice are integral to the outcome of a legal claim or cause of action. “Such is the case when a party specifically pleads reliance on an attorney’s advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 53, 730 A.2d 51 (1999). The party then impliedly waives the privilege “because the issue cannot be determined without an examination of that advice.” Id.

Here, the legal advice rendered was not vital to the outcome of any pending litigation, nor was it “actually required for a truthful resolution of the issue . . . .” (Internal quotation marks omitted.) Id. The plaintiffs claim is based on a misinterpretation of the at issue doctrine. There is no pending litigation or claim involved here. Instead, we have a dispute between a citizen and the government of the town over different proposed beach access plans. No employee of the town, including Bergstresser, pleaded reliance on legal advice as an element of a defense or claim during the course of litigation. The at issue doctrine is one of implied waiver, in certain limited situations, and does not apply to this situation.

II

The plaintiff also claims that Bergstresser expressly waived the town’s attorney-client privilege by disclosing one of the requested documents to the plaintiff and to the public, thereby allowing other information from the town’s attorneys on the same subject to become public.

It is undisputed that a letter from outside counsel to Bergstresser was disclosed to the plaintiff, published on the town’s web site and printed almost verbatim in the Greenwich Time. What is disputed is the legal significance of that document. Bergstresser argues that the letter is not and was not intended to be confidential or a privileged communication. If the letter was not a confidential communication between an attorney and a client, it would not be privileged and could not be the basis of the alleged waiver.

Resolution of that question rests on establishing the shifting dividing line between the competing public interests of openness in government and the protection of communications between attorney and client. The act promotes confidence and a sense of fairness in the democratic process. Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992). The attorney-client privilege doctrine promotes full and frank disclosure by clients to their attorneys in order to allow attorneys to provide competent, informed legal advice. Upjohn Co. v. United States, supra, 449 U.S. 389. The battle between the two competing interests, one requiring and the other prohibiting disclosure, has been resolved by the legislature in favor of the sanctity of the attorney-client privilege. Although that is true, it is also true that exemptions under the act are to be narrowly construed, with the burden of proving an exemption to be borne by the party claiming it. New Haven v. Freedom of Information Commission, 4 Conn. App. 216, 219, 493 A.2d 283 (1985).

The plaintiff does not dispute that the other documents withheld by Bergstresser are privileged. There is also no factual dispute that the disclosure of the Elliot letter was voluntary. “[V]oluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege.” (Internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 421, 781 A.2d 302 (2001). The court found, however, that the disclosed letter was not subject to the attorney-client privilege and, therefore, disclosure of that letter did not constitute an express waiver of the privilege.

We must determine whether the letter that was disclosed to the public and to the plaintiff is a privileged document. The attorney-client privilege applies when the client is a town or other public agency, even if the attorney is not an employee of the town. See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 11-12, 826 A.2d 1088 (2003). Communications between an attorney and a public agency are privileged if (1) the attorney is acting in a professional capacity for the agency, (2) the communications are made between the attorney and a current member of the public agency, (3) the communications relate to legal advice sought by the agency from the attorney and (4) the communications are made in confidence. Shew v. Freedom of Information Commission, 245 Conn. 149, 159, 714 A.2d 664 (1998). The test in this case is whether the letter was informed legal advice that would not have been given if there were no privilege. See id., 157-58. Here, the disclosed letter was not made in confidence, and the factual circumstances fail to meet the fourth prong of Shew.

Bergstresser, as first selectman, was ultimately responsible for a plan for access to parks that would comply with the holding of Leydon. The new access plan was a matter of great public interest. The town held various public meetings to allow citizens to air concerns and to hear from experts such as other town planners and from Elliot, one of the leading constitutional attorneys in the state. Bergstresser requested that Elliot write the letter that was made public for the very purpose of disclosure.

The disclosed document does not render advice on strategy, comment on an adverse party’s actions, make recommendations on a particular course of action or make similar tactical recommendations or decisions. It contains no legal advice for the future and was not intended to be confidential.

Although the letter was created by an attorney hired by the town, it was created for the purposes of helping apolitical leader to explain to his constituents the holding of Leydon and the need for the imposition of new ordinances in compliance with Leydon. It would strain the tenets of Shew to conclude that the letter that was voluntarily disclosed to the public and to the plaintiff created an express waiver of the attorney-client privilege.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties do not dispute that the act is applicable and that the information would be available to the plaintiff as a public record if it were not for the attorney-client privilege exemption of General Statutes § 1-210 (b) (10).

       There are four additional documents in question. They were submitted by Bergstresser for in camera review, along with a copy of the document that already had been disclosed.

       General Statutes § 1-210 (b) (10) provides that nothing in the act shall be construed to require disclosure of “records ... or communications privileged by the attorney-client relationship . . . .”

       We note that Shew involved communications from the town to an attorney. That case also stated that the privilege applies equally to the advice given by the attorney to a client. See Shew v. Freedom of Information Commission, supra, 245 Conn. 157. The Shew test has been applied to situations where the communications are arguably from the attorney to the town. See Maxwell v. Freedom of Information Commission, 260 Conn. 143, 148, 794 A.2d 535 (2002).

       The first page of the document, a letter from Elliot to Bergstresser, states in relevant part: “Dear Dick: You have asked if I could write you a brief letter to help you answer continuing questions from townspeople about the meaning and scope of the Connecticut Supreme Court’s opinion in the Beach Case [Leydon v. Greenwich, supra, 257 Conn. 318], I will try to do so in this letter, while at the same time avoiding the sort of advice-giving that would transform this letter into a confidential communication protected by the lawyer-client privilege. I hope it helps you to explain the Leydon decision to your fellow citizens. ...”


author: FLYNN, J.

text:
    CARNELL HUNNICUTT v. COMMISSIONER OF CORRECTION
    (AC 23459)
    Schaller, Flynn and DiPentima, Js.
    Argued March 25
    officially released June 1, 2004

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

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Richard F. Jacobson, former supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Camell Hunnicutt, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his defense counsel was effective in representing him. The petitioner specifically contends that his counsel failed to investigate the petitioner’s mental and physical health adequately prior to his entering a guilty plea to determine whether his guilty plea was knowing and voluntary. The petitioner also claims that the trial court’s plea canvass was inadequate and that his plea was not knowingly and voluntarily entered. We affirm the judgment of the habeas court.

The following facts are pertinent to the resolution of this appeal. In April, 1994, the petitioner was arrested and charged with the murder of his wife in violation of General Statutes § 53a-54a. The petitioner made a statement to the police in which he confessed to stabbing his wife twenty-two times, which resulted in her death. His trial counsel, David Abbamonte, successfully moved the court that the petitioner undergo a competency examination to determine if he was fit to stand trial. On July 13, 1994, the court, Maiocco, J., declared the petitioner competent to stand trial. After jury selection for his trial had begun, the petitioner expressed to Abbamonte that he wanted to enter into plea negotiations with the state. As a result of a plea agreement that was reached, he pleaded guilty to murder before the court, Ronan, J., and was sentenced to a term of incarceration of twenty-seven years.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel. The habeas court, Hon. Thomas H. Corrigan, judge trial referee, held that the petitioner did not show that his counsel’s representation “fell below an objective standard of reasonableness.” In reaching this conclusion, the court noted that the petitioner had stated during the plea canvass that his plea was freely and voluntarily made, that he was not under the influence of any alcohol, drugs or medication and that he understood the proceedings. The court further noted that the petitioner’s answers to the court’s plea canvass were appropriate and that his testimony at the habeas trial indicated that he had elected to take a sentence closer to the minimum for murder rather than risk being sentenced to the maximum. His actual twenty-seven year sentence was less than half of the sixty year statutory maximum sentence for murder. This appeal followed.

I

We first address the petitioner’s claim that the trial court’s plea canvass was inadequate because it did not substantially comply with Practice Book §§ 39-19 and 39-20. Specifically, the petitioner claims that the court failed to inform him that he was relinquishing his specific right to a jury trial and did not properly set forth the elements of murder. The petitioner did not raise this claim before the habeas court and also failed to raise it on direct appeal. Nevertheless, the petitioner argues that this claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which permits the review of certain unpreserved claims. Our Supreme Court has held that Golding review is not available for unpreserved claims of error raised for the first time in a habeas appeal. Safford v. Warden, 223 Conn. 180, 190 n.12, 612 A.2d 1161 (1992); see also Cupe v. Commissioner of Correction, 68 Conn. App. 262, 271 n.12, 791 A.2d 614 (“Golding does not grant . . . authority for collateral review and is . . . inapplicable to habeas proceedings”), cert. denied, 260 Conn. 908, 795 A.2d 544 (2002).

Accordingly, this court is not bound to consider a claimed error “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.” (Internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). The issue of whether the trial court adequately canvassed the petitioner regarding his guilty plea 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 regarding the alleged inadequacy of the trial court’s plea canvass because “[t]o review the petitioner’s [claim] now would amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Id., 14.

II

We next address the petitioner’s claim of ineffective assistance of counsel, to which we apply the following well established standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 299, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). “Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

The petitioner argues that his counsel failed to investigate his mental and physical health adequately immediately prior to the plea proceedings to determine whether he was capable of entering a plea knowingly and voluntarily. He contends that had counsel conducted an adequate inquiry, he would have found that the petitioner was under the influence of various psychotropic drugs at the time the plea was entered and could not have made a voluntary or knowing plea. We disagree.

Although we do not review the petitioner’s claims concerning the trial court’s alleged noncompliance with Practice Book §§ 39-19 and 39-20, we nonetheless set forth certain additional facts from the record regarding the court’s plea canvass because they reflect the petitioner’s mental state and do not evince that it was overborne by the effects of drugs, as he now claims on appeal. At the commencement of the plea proceedings, the court asked the petitioner whether he had had enough time to speak with his counsel about his case, to which the petitioner replied, “[n]ot really.” The court vacated the plea and permitted the petitioner to further consult with his counsel. When the proceedings resumed, the petitioner stated that he had had enough time to discuss his plea with his counsel. The court then asked the petitioner if he was pleading guilty freely and voluntarily, to which the petitioner replied that he was. The court further inquired whether the petitioner’s counsel had apprised him of the elements of murder so that he understood what the state would have had to prove to convict him, and the petitioner responded that he had done so. When the court asked if he had any questions about the elements of the charge, the petitioner said he did not. The court listed to the petitioner the rights that he was relinquishing by pleading guilty, recited to him the facts that formed the basis of the petitioner’s murder charge, explained to him the minimum and maximum sentence for the crime of murder and asked if the petitioner sufficiently understood, to which he replied that he did.

In its plea canvass, the court also inquired whether the petitioner was currently under the influence of anything that might impair his judgment. Specifically, the court asked: “As you stand here right now, Mr. Hunnicutt, are you under the influence of any alcohol or drugs or medication or any substance that could affect your ability to understand what you are doing in pleading guilty?” (Emphasis added.) The petitioner stated that he was not. We see nothing in that record that would cause a reasonable person to question the petitioner’s competence at the time of his plea.

At his habeas trial, the petitioner testified that at the time of his plea, he was being treated with psychotropic drugs, specifically Mellaril, Haldol, Sinequan and Proloxin, which had made him docile and caused him to be “confused” and “scared.” The petitioner testified that he told the trial court at the time of his plea that he was not under the influence of any drugs or alcohol because he thought that the court was referring only to illegal drugs, and not to legal psychotropic drugs. The petitioner conceded on cross-examination that he could not produce any evidence, aside from his testimony, that he had been influenced by drugs at the time he entered his plea. The petitioner’s trial counsel testified that he had had no indication that the petitioner was under the influence of psychotropic drugs during the plea proceedings and stated: “I assumed since [the petitioner] was in jail and . . . not under the influence of illegal drugs, I didn’t see anything about him that led me to believe that he had any problems on the day of trial.”

To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must establish both “(1) deficient performance, and (2) actual prejudice.

. . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, [466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. . . . Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citations omitted; internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn. App. 600, 602-603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). In Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the United States Supreme Court applied the two-pronged test set forth in Strickland to guilty plea negotiations, focusing on the application of the second prong requiring prejudice to be shown. “The second, or ‘prejudice,’ requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order 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.” Id.

We conclude that the petitioner has failed to satisfy both prongs of the Hill-Strickland test for establishing ineffective assistance of counsel during plea negotiations. First, the petitioner has not demonstrated that his counsel’s performance was deficient. Abbamonte testified that the petitioner had not appeared to be under the influence of any drugs on the day of the plea proceedings. The petitioner testified that he could not present any evidence that would corroborate what drugs he had been taking at the time and also admitted that he could cite to no other evidence to illustrate the extent of any possible impairment that was caused by the drugs. In addition, the record before us reveals no indication that the petitioner was at all confused about the proceedings or about any of the questions that were posed to him. Even if he had been taking certain psychotropic drugs at the time he entered his plea, he has not demonstrated that the effect of these drugs impaired his ability to understand the proceedings. When he stated that he needed more time to confer with his counsel, it was granted, and the plea proceedings did not resume until the petitioner was ready. He gave clear and cogent responses to the court’s inquiries and at all times indicated that he understood the proceedings. We are not persuaded by the petitioner’s argument that he believed that the court’s question regarding whether he was under the influence of drugs was confined only to illegal drugs. The court’s question clearly asked whether he was under the influence of drugs, alcohol or any other substance that would have impaired his ability to understand what he was doing. Psychotropic drugs clearly fall within the ambit of the court’s inquiry. Because the record before us does not evince that the petitioner was actually impaired by the use of any psychotropic drugs, we cannot conclude that his counsel was deficient in failing to investigate his mental and physical health further.

Even if we were to conclude that the performance of the petitioner’s counsel was deficient, the petitioner has not satisfied Strickland’s second prong, which requires him to demonstrate that the result of the proceeding would have been different if his counsel had not been ineffective. In cases involving plea negotiations, the petitioner must show that but for his counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have proceeded to trial. Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 722, 789 A.2d 1046 (2002). “Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Id.

The petitioner’s testimony at his habeas trial with respect to his decision to plead guilty was as follows: “I’m from the South. And going ahead with all white jurors against a black man. I knew it was not going to be for me. And that is why I was going for it. It was for that reason. . . . And that’s why it got me scared. . . . I’m not going to go through that.” The following exchange, which occurred during the respondent commissioner of correction’s cross-examination of the petitioner at his habeas trial, is also pertinent to this issue:

“[The Respondent’s Counsel]: You were aware, am I not correct, that the maximum sentence for murder was sixty years to life?
“[The Petitioner]: Yes.
“[The Respondent’s Counsel]: And the sentence that you received was twenty-seven years to life or twenty-eight years to life?
“[The Petitioner]: Twenty-seven. And it wasn’t to life, though. . . .
“[The Respondent’s Counsel]: Did that have an influence that you were going to get a lesser sentence? Did that have any influence on your plea?
“[The Petitioner]: Yes, it did.
“[The Respondent’s Counsel]: What was the influence it had on your plea?
“[The Petitioner]: Well . . . my lawyer, Abbamonte, he kept stressing this to me to cop out. You get less time than if you go to trial. You are going to get sixty years. And that stuck in my mind.”

The petitioner’s testimony illustrates that he chose to plead guilty to reduce the amount of time that he would serve in prison and because he was convinced that he would not receive a fair trial after three white jurors had been selected for his trial. The petitioner has not alleged on appeal that his counsel was ineffective in failing to investigate a defense regarding his drug use at the time the dime was committed, which may have reduced his chance of conviction for murder at trial. Rather, he claims that his counsel did not investigate whether he was under the influence of psychotropic drugs during the plea proceedings and that the petitioner did not understand what was happening. The petitioner does not assert that he would have proceeded to trial if he had not been under the influence of those drugs. The only argument that the petitioner makes in this vein is that if his counsel had been aware of the petitioner’s mental state, counsel may not have recommended that he plead guilty at that time. In his brief, the petitioner states that he was prejudiced by the ineffective assistance of counsel because “if the information regarding [the petitioner’s] continued medication were revealed through a proper investigation, it would have . . . weighed in defense counsel’s recommendation about when [the petitioner] should have entered a plea.” (Emphasis added.) This does not satisfy the Hill-Strickland standard that requires the petitioner to show a reasonable probability that he would not have pleaded guilty at all and, instead, would have proceeded to trial.

We conclude that the petitioner has not provided us with a record showing a reasonable probability that he would have chosen to proceed to trial rather than plead guilty if his counsel had further investigated the petitioner’s physical and mental health immediately prior to the plea proceedings. Nor does the record undermine confidence in the outcome of the plea proceedings.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner did not timely appeal from the habeas court’s denial of his first petition for habeas corpus. On November 18,1999, the petitioner filed a second habeas petition alleging ineffective assistance of habeas counsel for failure to appeal from the denial of the original petition. At a pretrial hearing in that case, the habeas court, Levine, J., rendered judgment restoring the petitioner’s right to appeal from the denial of his first habeas petition. Thereafter, the petitioner filed this appeal from the denial of his first habeas petition. The petitioner did not seek certification to appeal, however, pursuant to General Statutes § 52-470 (b). As a result, this court made its own motion to dismiss the appeal. On November 3, 2003, the petitioner filed a motion with this court seeking permission to file a late petition for certification to appeal, and this court ordered that no action would be taken pending the filing and action on a motion for permission to file a late petition for certification with the habeas court. On'January 8, 2004, the habeas court, Langenbach, J., granted the petition for certification to appeal. Subsequently, on January 14,2004, this court marked the matter off the court’s own motion calendar and took judicial notice of Judge Langenbach’s order of January 8, 2004, granting the petition for certification.

       Specifically, the petition alleged that trial counsel was ineffective in assisting him in his defense in that counsel (1) failed to inquire into the petitioner’s drug and alcohol dependency at the time of the charged offense, (2) failed to advise him that the state would have the burden of disproving drug dependency if he could produce substantial evidence of it, (3) failed to advise him adequately of his options to enter a guilty plea or go to trial, (4) failed to advise him adequately of sentencing options and (5) failed to investigate potential defenses properly. On appeal, however, the petitioner has focused his claim on the alleged failure of his counsel to investigate the petitioner’s mental and physical state at the time of the plea proceedings to determine whether the plea was knowing and voluntary.

       At the habeas trial, counsel for the respondent, the commissioner of correction, asked the petitioner the following question: “[I]s there a transcript, where you claim to be hazy, not understanding, or where you stuttered, or tripped over words, or didn’t understand what was being conveyed to you?” The petitioner responded: “No.”

       The petitioner’s counsel testified at the habeas trial that he had asked the petitioner whether he had been under the influence of drugs when he committed the crime. Counsel stated: “[The petitioner] maintained that he was . . . high at the time. But again, as I told him . . . there is nobody that can change the charge but the state’s attorney’s office, and they’re not willing to offer a manslaughter defense. But he has to win at the trial . . . we did discuss it.”