author: SPEAR, J.

text:
    PAUL HRYNIEWICZ ET AL. v. WILLIAM H. WILSON
    (AC 17262)
    Schaller, Spear and Dupont, Js.
    Argued September 23, 1998
    officially released January 5, 1999

      John M. Wyzik, for the appellants (plaintiffs).

      Bruce S. Beck, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiffs, Paul Hryniewicz and West Service Corporation (West Service), appeal from the summary judgment rendered in favor of the defendant. We affirm the judgment of the trial court.

This case, a petition for new trial, arises out of the plaintiffs’ prior appeal to this court in Wilson v. Hryniewicz, 38 Conn. App. 715, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). The plaintiffs in the present case were defendants in Wilson and claimed on appeal in that case that the trial court improperly denied (1) their motion to strike and (2) their motions for directed verdict and judgment notwithstanding the verdict on count one of Wilson’s complaint, which alleged that Hryniewicz and West Service had deprived Wilson of rights in violation of 42 U.S.C. § 1983. In the present case, the plaintiffs allege that they were effectively denied the right of appeal because of mispleading not due to negligence or inattention and because the “color of law” issue in the defendant’s § 1983 claim was decided without testimony from agents or representatives of the department of public utility control.

The relevant facts were set out in Wilson. “This action arises out of a dispute between [Wilson], a developer, and [West Service and Hryniewicz], a private utility in the town of Suffield and one of its employees. [Wilson], who was developing a subdivision in Suffield, had an agreement with [Hryniewicz and West Service] wherein West Service Corporation would supply the subdivision site with water. [Hryniewicz and West Service] delayed providing water to [Wilson’s] subdivision for several years. An action was initiated to resolve the question of liability and the amount of damages allegedly resulting from the delay.

“The original complaint included three counts: the first stating a claim pursuant to 42 U.S.C. § 1983; the second stating a claim for tortious interference with contract; the third stating a claim for vexatious litigation. [Hryniewicz and West Service] filed a motion to strike the first and second counts of the original complaint. This motion was denied by the trial court and, after filing notice of intent to appeal the denial of the motion to strike, [Hryniewicz and West Service] filed an answer to the original complaint. During trial, [Wilson] amended his complaint by dropping the third count and making minor modifications in the two remaining counts. In response, [Hryniewicz and West Service] filed an answer to the amended complaint. No motion to strike the amended complaint was filed.

“After [Wilson’s] case had been presented, [Hryniewicz and West Service] moved for a directed verdict on both counts. The trial court granted [Hryniewicz and West Service’s] motion for directed verdict as to count two, which alleged tortious interference with contract, but denied the motion as to count one, which alleged a claim pursuant to 42 U.S.C. § 1983. After deliberations, the jury returned a verdict in favor of [Wilson] on count one, and judgment was rendered in accordance with that verdict.” Wilson v. Hryniewicz, supra, 38 Conn. App. 716-17.

In Wilson, Hryniewicz and West Service appealed, challenging the trial court’s denial of their motion to strike the first count of the original complaint. Id., 717-18. We declined to address that issue because the denial of a motion to strike the original complaint cannot be challenged on appeal after the filing of an amended complaint that the defendant answers without moving to strike. Id.

The plaintiffs claimed in this case, by way of a petition for a new trial, that the verdict in Wilson was unfair and unjust, and that equity demands that a new trial be ordered. The trial court granted the defendant’s motion for summary judgment, and this appeal followed.

I

The plaintiffs first claim that the trial court improperly concluded that there was no genuine issue of material fact to be decided in this case. The plaintiffs argue that the defendant submitted four unsworn exhibits with the motion for summary judgment and that these exhibits cannot be used to prove that no issues of material fact exist. We disagree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 17-49, formerly § 384, requires that [t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).” (Internal quotation marks omitted.) General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 50 Conn. App. 701, 707-708, 719 A.2d 77 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999). “ While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992).’ ” Rosario v. Hasak, 50 Conn. App. 632, 636-37, 718 A.2d 505 (1998).

“To oppose amotion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46, formerly §§ 380 and 381, which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him. Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975).” Inwood Condominium Assn. v. Winer, 49 Conn. App. 694, 697, 716 A.2d 139 (1998).

“ ‘The trial court has the power to take judicial notice of court files of other actions between the same parties. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979).’ In re Mark C., 28 Conn. App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992); see also McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990) (court took judicial notice of court files from prior proceeding between parties even though files not formally made part of record at trial); Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982) (court considered previous contempt orders when considering issue of custody).” Lowe v. Lowe, 47 Conn. App. 354, 360, 704 A.2d 236 (1997).

In the present case, the factual basis for the petition for a new trial was not in dispute and was the subject of the prior appeal. Although the plaintiffs object to the documents attached to the defendant’s motion for summary judgment because they were unsworn, the documents were all contained in the original trial court file, and the defendant requested that the trial court take judicial notice of the file from the prior action. The trial court had the file from the prior case between the parties before it and could have taken judicial notice of prior proceedings giving rise to the plaintiffs’ petition for a new trial. Therefore, the plaintiffs’ claim is unpersuasive.

II

The plaintiffs next claim that the trial court, in granting the defendant’s motion for summary judgment, improperly determined that they were not entitled to a new trial. We disagree.

The plaintiffs’ conclusion is based on the faulty legal premise that the failure to refile a motion to strike is the type of mistake that would warrant a new trial. “General Statutes § 52-270 does permit a new trial to be granted on petition upon proof of ‘reasonable cause.’ The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal.” (Emphasis added.) Rizzo v. Pack, 15 Conn. App. 312, 317, 544 A.2d 252 (1988). As we stated in the plaintiffs’ prior appeal, “Practice Book § 112 [now § 10-6] dictates the order of pleadings in a civil case. A motion to strike a complaint must precede the defendant’s answer to that complaint. Pursuant to Practice Book § 113 [now § 10-7], ‘the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.’ ” Wilson v. Hryniewicz, supra, 38 Conn. App. 718. Although the plaintiffs claim the denial of the fan-opportunity to have their claim heard on appeal, they fail to recognize that the exercise of due diligence is a condition precedent to a finding of reasonable cause. Accordingly, we conclude that the trial court correctly held that there was no genuine issue of material fact and that the defendant was entitled to judgment as a matter of law.

The plaintiffs also raise the issue of evidentiary error, namely, that the department of public utility control or its agents should have been called as witnesses in Wilson, as a basis for a new trial. This issue was waived because it was not raised in their initial appeal to this court. See Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 292 n.2, 533 A.2d 208 (1987); Furtney v. Zoning Commission, 159 Conn. 585, 589, 271 A.2d 319 (1970); Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 723 A.2d 318 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    IN RE KRISTINA D. ET AL.

    (AC 18147)
    Foti, Schaller and Hennessy, Js.

      Argued November 10, 1998
    officially released January 5, 1999

      David B. Rozwaski, for the appellant (respondent mother).

      William G. Bumpus, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       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

FOTI, J.

The respondent mother (respondent) appeals from the judgments of the trial court terminating her parental rights with respect to her three children. The respondent claims that the trial court improperly concluded that the petitioner, the commissioner of the department of children and families, had proven, by clear and convincing evidence, the statutory grounds for termination under General Statutes § 17a-112. Specifically, the respondent claims that the trial court improperly concluded (1) that she failed to achieve a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in her children’s lives pursuant to § 17a-112 (c) (3) (B) and (2) that it would be in the best interests of her children to terminate the respondent’s parental rights. We affirm the judgments of the trial court.

The following facts and procedural history are pertinent to our resolution of this appeal. On June 8, 1994, in response to an “at-risk” complaint, the police arrived at the respondent’s home and found her three young children outside and unsupervised. The respondent was inside her apartment asleep and intoxicated. The department invoked a ninety-six hour hold on the children and, on June 10, 1994, sought and obtained an order of temporary custody. The children were then placed in foster care and have remained there since that time.

On March 29, 1995, the children were adjudicated as neglected. On February 26,1997, the commissioner filed petitions requesting the termination of the respondent’s parental rights with respect to all three children pursuant to § 17a-112. In the petitions, the department alleged that the respondent had failed to achieve personal rehabilitation pursuant to § 17a-112 (c) (3) (B) and that her children had been denied the care, guidance or control necessary for their physical, educational, moral or emotional well-being pursuant to § 17a-112 (c) (3) (C). The department also alleged, in accordance with § 17a-112 (c) (3), that each of these alleged grounds for termination had existed for more than one year.

Hearings were held before the trial court over three days, beginning on January 13,1998. In its memorandum of decision, dated January 16,1998, the trial court found that the commissioner had proven, by clear and convincing evidence, that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in the lives of her children. Finding that it would be in the best interests of her children, the trial court then terminated the respondent’s parental rights. It is from that judgment that the respondent appeals.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1042.1 et seq. [now § 33-1 et seq.] In the adjudicatory phase, the trial court determines whether the [allegations of the] statutory ground for termination of parental rights 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 the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).” In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995).” In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .’’(Citations omitted; internal quotation marks omitted.) Id.

I

The respondent first claims that the trial court improperly concluded that she failed to achieve personal rehabilitation. We disagree.

In this case, the adjudicatory determination made by the trial court was that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of her children, the respondent could assume a responsible position in their lives. See General Statutes § 17a-112 (c) (3) (B). “ ‘Personal rehabilitation’ as used in [§ 17a-112 (c) (3) (B)] refers to the restoration of a parent to his or her former constructive and useful role as apaxent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). Section 17a-112 (c) (3) (B) “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ” (Internal quotation marks omitted.) In re Christina V., supra, 38 Conn. App. 221.

We cannot conclude that the trial court’s determination that the respondent has failed to achieve personal rehabilitation was clearly erroneous. The trial court noted that, at the time, the children were removed from her care, the respondent was an active substance abuser who was involved in an abusive relationship with her boyfriend, who was an alcoholic. It also noted that the respondent, in an attempt to “rid herself from the grip of substance abuse,” entered many mental health and substance abuse programs. The trial court indicated, however, that while the respondent did complete some of the programs, she relapsed following each attempt. The trial court found that this, as well as other “various documents in evidence,” clearly established the respondent’s inability to remain sober outside of a structured counseling setting.

Additionally, in support of its conclusion, the trial court cited an incident in which the respondent had been admitted to Griffin Hospital where it was determined that she had overdosed on cocaine and benzodiazepine. An examination of the record discloses that this incident occurred in November of 1996, which preceded the February 26, 1997 termination petitions. See In re Tabitha P., 39 Conn. App. 353, 367, 664 A.2d 1168 (1995) (in making adjudicatory determination, trial court limited to considering events preceding filing of termination petition or latest amendment). Finally, the trial court cited the respondent’s 1991 arrest and conviction for possession of narcotics, as well as other arrests that had occurred subsequently. Again, the record discloses that several of these arrests occurred prior to the filing of the February 26,1997 termination petitions.

The trial court, upon consideration of the evidence and testimony before it, concluded that as of the date of the petitions, the respondent “was an unrecovered, active alcoholic and substance abuser, impaired to such an extent that she was unable to provide for the care and custody of her children” and, thus, had failed to achieve personal rehabilitation. Upon our review of the record and briefs, we cannot say that the trial court’s finding was clearly erroneous.

II

The respondent next claims that the trial court improperly concluded that it would be in the best interests of her children to terminate the respondent’s parental rights. We disagree.

The trial court, in its memorandum of decision, made specific findings regarding the seven statutory factors necessary to ensure that the termination of the respondent’s parental rights was in the best interests of her children. See In re Tabitha P., supra, 39 Conn. App. 361-62; see also General Statutes § 17a-112 (e). These findings can be summarized as follows. The trial court found that the department of children and families had provided appropriate and timely services to the respondent. For example, it found that parental, psychological and substance abuse services were offered, along with foster care and visitation. The trial court noted that the department had also made reasonable efforts to reunite the respondent with her children through the offering of “a variety of services on a very extended basis.”

Additionally, the trial court found that the respondent did not meet the expectations set by the department. Of most importance to the trial court was that the respondent failed to remain free from substance abuse. As to the fourth statutory criterion, the trial court found that the children have strong emotional ties with their foster family and consider themselves to be part of that family. The refer to their foster parents as “mom” and “dad.” In addition, the trial court found that no presently existing emotional bonds would be severed by the termination of the respondent’s parental rights.

The trial court also considered the ages of the children who, at the time of the trial court’s ruling, were ten, seven and five years of age. As to the sixth statutory factor, while the trial court noted that the respondent has made efforts to adjust her circumstances, conduct or conditions to facilitate reunification with her children, it noted that all of her efforts have been unsuccessful. Finally, the trial court noted that there was no evidence that anything had prevented the respondent from maintaining a meaningful relationship with her three children.

Upon reviewing the detailed decision of the trial court and the evidence contained in the whole record, we conclude that the trial court’s findings that the respondent has not achieved sufficient rehabilitation and that termination is in the best interests of her children are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that over an extended period of time . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The petitions also sought the termination of the parental rights of the children’s fathers. Following the filing of the termination petitions, the fathers consented to the termination of their parental rights and are not parties to this appeal.

       The other ground for termination, that the children had been denied the care, guidance or control necessary for their physical, educational, moral or emotional well-being pursuant to § 17a-112 (c) (3) (C), had been withdrawn.

       General Statutes § 17a-112 (e) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to aifjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


author: O’CONNELL, C. J.

text:
    NEW MILFORD BLOCK AND SUPPLY CORPORATION v. N. GRONDAHL AND SONS, INC., ET AL.
    (AC 17480)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued September 25, 1998
    officially released January 5, 1999

      Thomas J. Londregan, with whom, on the brief, were Ralph J. Monaco and Brian K. Estep, for the appellant (defendant city of New London).

      John M. Gasidlo, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

This is the defendant city of New London’s (city) appeal from the trial court’s $22,319.59 judgment rendered against it in accordance with the report of an attorney trial referee. The city claims that the trial court should not have accepted the referee’s report because it incorrectly (1) relied on a theory of ratification and (2) found ratification without sufficient evidence. We reverse the judgment of the trial court.

The plaintiff, New Milford Block and Supply Corporation, initiated this action against the defendants N. Grondahl and Sons, Inc. (Grondahl), the general contractor, Capasso Enterprises (Capasso), the masonry subcontractor, and the city of New London, seeking payment for materials sold and delivered by the plaintiff for the city’s Ocean Beach Park bathhouse project. The city denied that it had responsibility to pay for the materials and, by special defense, alleged that it had previously paid the defendants Grondahl and Capasso for the subject materials.

On September 17 through 20,1996, the case was tried before an attorney trial referee. He issued his findings on June 4, 1997, and on July 15, 1997, the trial court rendered judgment in accordance with his report. Because only the city appeals, we limit our discussion to the issues and findings of the referee that are relevant to the city.

On March 4, 1991, Grondahl, as general contractor, entered into a written contract with the city to supply the labor and materials necessary for the city’s Ocean Beach Park bathhouse renovation project. Under the contract, Grondahl was required to hire and pay subcontractors and to pay for all materials used on the site. Capasso was the subcontractor responsible for the masonry materials and labor. On May 23,1991, Grondahl and Capasso signed a joint payment agreement with the plaintiff in which they agreed to pay the plaintiff jointly and severally all sums due for the plaintiffs supply of materials for the project.

In April, 1992, the city exercised its contractual right to terminate the contract with Grondahl and, thereafter, the city entered into subcontracts with several subcontractors, including Capasso, to complete work on the project. Under its contract with the city, Capasso agreed to supply all labor and materials. On May 25, 1992, Capasso billed the city for labor and “materials on site,” which the city paid in full. The attorney referee found that the “materials on site” included the masonry material that is the basis of the plaintiffs complaint in this case, and that the city had paid Capasso and Grondahl for the materials.

The plaintiff claimed a breach of an oral contract on the basis of the oral representations of Roger Early, an employee of the city, who at the time in question was the manager of Ocean Beach Park, and later by the oral representations of Barte Ferrante, a city employee who became the acting project manager. The referee found, however, that neither Early nor Ferrante had express or implied authority to bind the city and, accordingly, no oral contract had been created. Notwithstanding that finding, the referee concluded on the basis of the city’s retention and use of the materials that the city had ratified the allegedly unauthorized actions and representations of Early and Ferrante, thereby obligating itself to pay the plaintiff for the materials.

The attorney referee determined that Grondahl was liable for the materials shipped to the job site while it was general contractor and Capasso was liable for the materials shipped after Grondahl was terminated. He further determined that, if Grondahl and Capasso did not pay the plaintiff, the city was “secondarily responsible” to pay for all of the materials.

On June 24, 1997, approximately one week beyond the time limit for filing such a motion, the city moved to correct the portion of the referee’s report that held the city secondarily liable under a theory of ratification. The trial court denied the city’s motion on June 25,1997. The city filed an objection to the motion for judgment on the report and acceptance of the report, which motion was also denied by the trial court on July 25, 1997. The city commenced this appeal seeking reversal of that portion of the judgment that found it liable to the plaintiff for the materials on the theory of ratification.

On appeal, the city contends that (1) the attorney referee erroneously considered the theory of ratification because it was not pleaded in the plaintiffs complaint but was first put forth in the plaintiffs posttrial brief and (2) even if ratification could have been considered by the referee, there was insufficient evidence to support such a finding.

We first consider the plaintiffs argument that ratification is not properly before us because the city did not timely raise it and is thus foreclosed from raising it on appeal. Practice Book §§ 19-14, 19-15 and 19-12 clearly set forth that the time for filing a motion to correct a referee’s report or to object to the acceptance of a referee’s report is two weeks. Because the city’s motions were not filed within two weeks of the filing of the referee’s report, the trial court overruled the objection and denied the motions as untimely. In oral argument before this court, the city conceded that in the absence of a timely objection to the report, our review is limited to a determination of whether the subordinate facts found by the referee were sufficient to support his ultimate factual conclusions. We agree that we may not consider whether the referee properly considered the theory of ratification and, instead, must limit our review to the second issue on appeal, i.e., whether the subordinate facts found by the referee were sufficient, as a matter of law, to support the conclusion of ratification. J. M. Rosa Construction Co. v. New Haven Redevelopment Agency, 9 Conn. App. 481, 485, 519 A.2d 1227 (1987); Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

The legal theory of ratification requires “ ‘acceptance of results of the act with an intent to ratify, and with full knowledge of all the material circumstances.’ ” Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979); Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 542, 651 A.2d 1302 (1995). Additionally, in the case of a municipal coiporation, the fact finder must determine that ratification was made by the officer or body originally empowered to make the contract. John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 712, 448 A.2d 180 (1982).

The attorney referee relied on Loomis v. Fifth School District, 109 Conn. 700, 704-705, 145 A. 571 (1929), to support his conclusion that “a municipal corporation may be held to have ratified an unauthorized contract by retaining the benefit under circumstances which estop it from denying liability. . . . Liability in these cases is based upon the fact that the defendants had an opportunity to accept or reject the work and elected to accept it . . . .” (Citations omitted.) In support of his conclusion, the referee found that, although Early and Ferrante had no actual or apparent authority to bind the city to pay for the materials, the city allowed the materials to be incorporated into the project, thereby ratifying their unauthorized representations.

The city argues that the facts found by the referee do not support his conclusions that there was intent to ratify and full knowledge of all of the circumstances by the city or by its duly authorized representatives. Specifically, the city distinguishes this case from Loomis because here no one with authority to bind the city authorized receipt or retention of or payment for these materials. The relevant facts found by the referee are set forth in footnote 2. We agree with the city that an examination of the findings does not disclose any factual basis that would support a conclusion of ratification by the city. The only actions that could be construed as displaying an intent to ratify the representations of Early and Ferrante would be subsequent acts by Early and Ferrante themselves, individuals who the referee clearly found did not have the authority to bind the city. The Loomis court held that if the individual who made the promises to pay was without the authority to bind the municipality, “he could not of course bind the [municipality] by assuming to ratify his own unauthorized act.” Loomis v. Fifth School District, supra, 109 Conn. 705. Because Early and Ferrante were the only individuals who had the opportunity to make decisions regarding the acceptance and retention of the materials at issue, it cannot be said reasonably that the city or any of its duly authorized representatives displayed an intent to ratify. Accordingly, because the subordinate facts do not support the ultimate legal conclusions reached by the referee, the trial court improperly accepted the report and rendered judgment thereon.

The judgment is reversed only as against the defendant city of New London and the case is remanded with direction to render judgment in favor of that defendant.

In this opinion the other judges concurred.

       Because of our disposition of this appeal, it is not necessary that we determine whether the doctrine of secondary liability was appropriately applied in this case.

       Specifically, the attorney referee found: “83. Plaintiffs claim against the City of New London is based upon alleged oral representations. 84. Defendant City did not order any of the materials, nonpayment for which is at issue in this action. 85. Neither Early nor Ferrante had actual authority to bind defendant City to pay for project materials. 86. No person or entity with authority to bind defendant City made representations or acted in such a manner as to clothe Early or Ferrante with apparent authority to bind the City to pay for project materials nor did any such person or entity take any actions that would lead the plaintiff to believe that the City would pay for the block. 87. There was no evidence introduced at trial to show that defendant City had ever taken the requisite action to bind itself to pay the plaintiff for materials supplied to the project. ... 90. Neither the plaintiff nor any of its agents or employees ever contacted the City Manager, City Council or Ocean Beach Park Board to inquire whether Early or Ferrante had authority to bind the City or as to the procedure necessary for the defendant City to become bound to pay for project materials.” (Emphasis in original.)


author: PER CURIAM.

text:
    ERNEST FRANCIS v. COMMISSIONER OF CORRECTION
    (AC 18029)
    SchaUer, Hennessy and Kulawiz, Js.
    Argued December 1, 1998
    officially released January 5, 1999

      Ernest Francis, pro se, the appellant (petitioner).

      AnnE. Lynch, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the judgment of the habeas court denying his petition for a writ of habeas coipus and denying his request for certification of appeal to this court. The petitioner claims on appeal that the trial court improperly determined that the department of correction’s Administrative Directive 9.5 does not violate the ex post facto clause of article one, § 10, of the United States constitution. We do not agree.

The petitioner is an inmate sentenced to the custody the commissioner of correction pursuant to a mittimus issued on April 15, 1992. He received a disciplinary report, in 1993 resulting in the loss of sixty days of statutory good time. The petitioner challenges the change in the directive pertaining to applications for restoration of good time. Under the current directive, an inmate is not eligible for restoration of previously lost good time unless he has been free of class A disciplinary reports for five years. Under the previous version of the directive, an inmate was eligible to apply if he was free of class A disciplinary reports for one year.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). After a thorough review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal the dismissal of his habeas corpus petition was a clear abuse of discretion or that an injustice was done. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 612; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

“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. . . . [Simms v. Warden, supra, 230 Conn. 616], quoting Lozada v. Deeds, [supra, 498 U.S 432].” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 816, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996).

The habeas court concluded that the petitioner had no liberty interest in the restoration of previously forfeited good time credits, noting that the decision to restore such credits is entirely within the discretion of the commissioner. Howard v. Commissioner of Correction, 230 Conn. 17, 19 n.3, 644 A.2d 874 (1994). The habeas court determined, accordingly, that the petitioner’s interest in restoration of good time credits was too attenuated to create a liberty interest under Abed v. Commissioner, 43 Conn. App. 176, 182, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). The habeas court further determined that the ex post facto clause relates to crimes only, and does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with prison administration, safety and efficiency. See id., 183.

We conclude that the habeas court properly determined, under the authority of Abed v. Commissioner, supra, 43 Conn. App. 176, that the petitioner has no liberty interest in the restoration of previously forfeited good time credits and that, in any event, the adoption of the regulation in question does not violate the ex post facto clause of the United States constitution. Id. Having failed to raise a legally cognizable claim upon which relief may be granted, the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189; Milardo v. Commissioner of Correction, 41 Conn. App. 749, 677 A.2d 24, cert. denied, 239 Conn. 907, 682 A.2d 1004 (1996); Walker v. Commissioner of Correction, supra, 38 Conn. App. 100.

The appeal is dismissed.

       The constitution of the United States, article one, § 10, provides in relevant part: “No State shall . . . pass any ... ex post facto Law . . . .”

       The petitioner was sentenced to fifty years for one count of murder in violation of General Statutes § 53a-54a (a).


text:
    STATE OF CONNECTICUT v. SANDRA O.

    (AC 17777)
    Foti, Sclialler and Sullivan, Js.

      Argued November 10, 1998
    officially released January 5, 1999

      John Serrano, for the appellant (defendant).

      James Ralls, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and John OReilly, senior assistant state’s attorney, for the appellee (state).

       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

FOTI, J.

The defendant appeals from the judgment of the trial court adjudicating her to be a youthful offender pursuant to General Statutes § 54-76g for having committed the offense of reckless driving in violation of General Statutes § 14-222. The defendant claims that the evidence presented was insufficient to sustain her conviction of the underlying offense. We disagree and affirm the judgment of the trial court.

Initially, it must be noted that the record in this case contains neither a written memorandum of decision nor a transcribed and signed copy of the trial court’s oral decision. See Practice Book § 64-1. The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 61-10; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). While we have often declined to review claims where the appellant has failed to provide us with an adequate record for review; see Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); in this matter, we exercise our discretion to review the defendant’s claim because the unsigned transcript is sufficient to reveal the basis of the trial court’s factual conclusions.

The trial court could reasonably have found the following facts. On September 1, 1997, at about 9 p.m., the defendant was involved in a one car accident as she drove on Deercliff Road approaching Piggot Lane in the town of Avon. Before its intersection with Piggot Lane, there are signs on Deercliff Road warning that a hill and a curve lie ahead. Thereafter, there is a slight rise in the road followed by the crest of a bump. The road then drops rapidly toward the intersection of Pig-got Lane. The posted speed limit on Deercliff Road is 25 miles per hour. The area has a history of accidents in which cars, traveling at excessive speeds, become airborne over the bump and leave the roadway, sometimes rolling over onto their sides as they land.

There was evidence that on the date in question, the defendant’s car had traveled over the crest of the bump on Deercliff Road, become airborne, and bottomed out as it landed. Just past the crest of the hill, the investigating officer observed a deep gouge in the roadway where the car had hit the road. The impact was so severe that it fractured the vehicle’s transmission case and radiator. This caused the vehicle’s transfer case oil and antifreeze to discharge onto the roadway.

Following the impact, the defendant’s car crossed into the oncoming lane of Deercliff Road and then left the roadway, coming to rest approximately 175 feet past the intersection. There were no skid marks, but a trail of debris marked the car’s route. After the car left the roadway, it hit a large rock that weighed several hundred pounds. The impact was so great that the rock was pushed forward into an adjacent driveway. The car then continued farther, finally hitting two large trees measuring six to twelve inches in diameter. The driver and her three passengers exited the vehicle before it burst into flames.

The automobile was totally destroyed in the accident and ensuing fire. The defendant and her passengers sustained injuries and had to be transported to a hospital for treatment. The defendant was charged with, and convicted of, reckless driving in violation of § 14-222. The sole issue on appeal is whether the cumulative effect of the evidence was sufficient to prove that the defendant had violated § 14-222 by operating her motor vehicle recklessly or at such a rate of speed as to endanger the life of another.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). “ ‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.’ ” Id., 490.

Section 14-222 provides in relevant part that “[n]o person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway .... The operation of a motor vehicle upon any such highway ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle .. . shall constitute a violation of the provisions of this section.” It is “reckless indifference to the safety of others which supplies the criminal intent necessary to warrant conviction.” (Internal quotation marks omitted.) State v. Camera, 132 Conn. 247, 251, 43 A.2d 664 (1945). While speed alone may be insufficient to warrant a conviction for reckless driving, it may be taken into consideration in conjunction with other circumstances to show a reckless disregard of consequences. See State v. Mahalik, 22 Conn. Sup. 400, 403, 173 A.2d 897 (1961). The defendant argues that the state proved neither speed nor a reckless mental state beyond a reasonable doubt.

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). As such, the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. See Baretta v. T & T Structual, Inc., 42 Conn. App. 522, 527, 681 A.2d 359 (1996). “ ‘In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.’ ” State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995).

Our review of the evidence, as well as the reasonable inferences that could be drawn from it, leads us to conclude that it was sufficient to justify the trial court’s finding that the state had proven, beyond a reasonable doubt, a violation of the reckless driving statute. The evidence demonstrated that the defendant, as operator of the vehicle, ignored the posted warning signs, drove well in excess of the posted speed limit and operated her vehicle in such a reckless manner as to endanger the lives of her passengers. We conclude, therefore, that there was sufficient evidence for the trial court to have found the defendant guilty of reckless driving.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-76g provides: “If the defendant enters a plea of guilty to the charge of being a youthful offender or if, after trial, the court finds that he committed the acts charged against him in the information or complaint, the court shall a<Jjudge the defendant to be a youthful offender and the information or complaint shall be considered a nullity and of no force or effect.”

       General Statutes § 14-222 provides in relevant part: “(a) No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway .... The operation of a motor vehicle upon any such highway ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . shall constitute a violation of the provisions of this section.”

       The transcript does not contain a detailed and concise statement of the trial court’s findings. The trial court merely stated: “All right. Well, based on what I have heard as testimony from the officer, it does appear that there was extensive damage to this car, even to the extent where the car was burned by fire caused as a result of this accident. There was not testimony as to specifically how the fire started but, obviously, it had to do with the—that it was a result of this accident and directly connected to that.
      “Also . . . there was certainly a good deal of evidence, as the officer described, of objects that were destroyed by this car before it came to rest and, certainly, there were even injuries as a result of this.
      “So, it does appear that there is sufficient evidence to indicate that the state had sustained its burden; that this defendant was driving in a reckless manner certainly in excess of the twenty-five mile posted limit and in excess of the appropriate conditions with respect to that particular area of Deer-cliff Drive.”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. SAMUEL MARSHALL
    (AC 17527)
    Landau, Spear and Daly, Js.
    Argued October 27, 1998
    officially released January 5, 1999

      Richard Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Samuel Marshall, appeals from the judgment of the trial court determining that he violated the terms of his probation, revoking his probation and imposing the entire suspended portion of his sentence. On appeal, the defendant’s sole claim is that, by denying his motion for a one day continuance to retrieve evidence that he maintained could have proved that he did not violate the terms of his probation, the trial court denied him his constitutional rights to due process and to present a defense. We disagree.

The following facts are relevant to this appeal. On August 23, 1988, the defendant was convicted, after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134 and one count of robbery in the third degree in violation of General Statutes § 53a-136. The defendant was sentenced on September 29,1988, to a term of twenty years imprisonment, suspended after thirteen years, followed by a probationary period of five years.

On November 7, 1996, the defendant signed a standard document outlining the conditions of his probation. The relevant portions included provisions (1) not “to violate any criminal law of the United States, this state or any other state or territory” and (2) “to report as the probation officer directs, give immediate notice if arrested and, if incarcerated, report to the probation officer immediately” upon release. In addition, the court ordered “substance abuse counseling, testing and treatment.”

The defendant commenced his probationary period on December 10,1996, and he was arrested on February 16, 1997, pursuant to General Statutes § 53a-32/ for violating the conditions of his probation. At the probation revocation hearing on July 30,1997, the state’s sole witness, probation officer Jean Dzicek, testified that the defendant had submitted a urine sample that tested positive for cocaine and that he had missed a scheduled appointment. Following Dzicek’s testimony, the state rested its case.

Immediately after Dzicek’s testimony, defense counsel requested time to ask the defendant if he would testify and also sought an opportunity to consult with an expert regarding a chemical test evaluation that defense counsel had just received. The court recessed to allow defense counsel to confer with the defendant. After returning from the recess, defense counsel informed the court that he did not intend to have the defendant testify and requested a continuance until the next morning in order to consult with a toxicologist concerning the test results. The trial court granted defense counsel’s request with the expectation that all parties would be ready to proceed at that time.

When the proceedings resumed the following morning, however, the defendant did take the stand to testify. During his testimony the defendant claimed that he went to the probation office on January 14, 1997, but Dzicek was not there, and that he telephoned Dzicek later that day and rescheduled the appointment for January 16, 1997. According to the defendant, he met with Dzicek on January 16, 1997, and was given an appointment card for his next meeting scheduled for January 30, 1997, at which time he met again with Dzicek and was given another appointment card for February 25, 1997. He claimed that the cards were at the Hartford Correctional Center with his personal property. On cross-examination, the defendant admitted that he had signed the document outlining the conditions of his probation and that one of the conditions was that he not commit a crime. The defendant also admitted that just after starting his probation he used cocaine.

At the conclusion of the defendant’s testimony, defense counsel indicated that there were no other witnesses and requested a one day continuance to retrieve the appointment cards from the Hartford Correctional Center to refute the claim that the defendant failed to report to the probation office on January 14, 1997. The trial court denied this request and found that the defendant violated both the first and second conditions of his probation because he tested positive for cocaine use and he failed to report to his probation officer on January 14, 1997. The trial court revoked the defendant’s probation and sentenced him to the remaining seven years of his original twenty year sentence. This appeal followed.

The defendant claims that by denying his motion for a one day continuance to retrieve evidence that could have proved that he did not violate the terms of his probation, the trial court violated his constitutional rights to due process and to present a defense. “The right of a defendant to have a continuance is not . . . absolute . . . .” (Citation omitted; internal quotation marks omitted.) State v. Walker, 215 Conn. 1, 10, 574 A.2d 188 (1990). “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s decision will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Emphasis in original; internal quotation marks omitted.) State v. Prutting, 40 Conn. App. 151, 168-69, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).

Since the trial court had already granted one continuance, we find no abuse of discretion in the court’s refusal to grant the defendant’s motion for a further continuance. See State v. Yednock, 14 Conn. App. 333, 344-45, 541 A.2d 887 (1988) (no abuse of discretion found where court refused to grant further continuance after having granted one earlier).

Even if the trial court’s denial of the defendant’s motion for a continuance was improper, we nevertheless conclude that such error was harmless. The appointment cards would not have proved the defendant’s presence on January 14, 1997. Moreover, the defendant does not challenge the finding of the urinalysis results that indicated the presence of cocaine. The use of cocaine violated the first condition of the defendant’s probation and was a sufficient basis for the trial court to revoke his probation.

A probation revocation hearing, pursuant to § 53a-32, has two distinct components. Initially, there is an evidentiary hearing to determine whether the defendant violated a condition of probation. Then, if the trial court determines that the evidence has established a violation of a condition of probation, there must be a determination of whether the defendant’s probationary status should be revoked. State v. Welch, 40 Conn. App. 395, 400-401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). After considering the entire record, the trial court may opt to “continue or revoke the sentence of probation . . . or . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. . . .

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Citations omitted; internal quotation marks omitted.) Id., 401.

After reviewing the record in the present case, we conclude that the trial court’s determination that the defendant violated the conditions of his probation was supported by the evidence and was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . .

       The affidavit in support of the arrest warrant included the following alleged probation violations: (1) A urine specimen submitted by the defendant on December 17, 1996, tested positive for cocaine, (2) the defendant failed to report to his probation officer on January 14, 1997, and (3) “[b]y virtue of the fact that [the defendant] did possess an illegal substance, cocaine, it [was] felt that he [was] in violation of the condition of his probation,” which requires that the defendant not violate any criminal law of the United States, this state or any other state or territory.


author: STOUGHTON, J.

text:
    MICHAEL REDDICK v. COMMISSIONER OF CORRECTION
    (AC 16507)
    O’Cormell, C. J., and Hennessy and Stoughton, Js.

      Argued November 6, 1998
    officially released January 5, 1999

      William A. Snider, for the appellant (petitioner).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (respondent).
   Opinion

STOUGHTON, J.

The petitioner, Michael Reddick, appeals from the denial of certification to appeal and from the dismissal of his petition for a writ of habeas corpus. We affirm the habeas court’s denial of the petition for certification to appeal and dismiss the petitioner’s appeal.

On February 28, 1991, the petitioner was convicted, after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135. The petitioner also entered a plea of nolo contendere to a charge of being a persistent dangerous felony offender pursuant to General Statutes § 53a-40. The trial court sentenced the petitioner to imprisonment for a term of twenty-five years. The petitioner’s convictions were subsequently affirmed. State v. Reddick, 224 Conn. 445, 619 A.2d 453 (1993). The petitioner filed apetition for a writ of habeas corpus on May 20, 1991. The matter proceeded to a hearing on April 16, 1996. During and at the close of the hearing, the petitioner requested, and received, permission to amend his petition to conform to the proof presented at the hearing. The amended petition was filed on April 30, 1996, alleging ineffective assistance of counsel.

Specifically, the petitioner alleged that his counsel was ineffective because he improperly (1) advised the petitioner and permitted a plea to enter on the persistent dangerous felony charge, (2) failed to lessen the suggestiveness and defend against an in-court identification, (3) failed to conduct, prepare or utilize a pretrial investigation, (4) failed to bring forth testimony and to object to the inculpatory evidence of fingerprints, hair samples and dye and (5) failed to be prepared for trial. The habeas court dismissed the petition. On February 27, 1996, the petitioner’s application for certification to appeal the dismissal was denied. This appeal followed, seeking review of the merits of the habeas court’s decision.

“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. Id. 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. Id.” (Internal quotation marks omitted.) Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

“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. . . . [Simms v. Warden, supra, 230 Conn. 616], quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).” (Internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 816, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996).

In Petaway, we declined to reach the habeas court’s resolution of the petitioner’s ineffective assistance of counsel claim because we concluded that the petitioner had failed to establish that the habeas court abused its discretion. Petaway v. Commissioner of Correction, supra, 49 Conn. App. 77. Furthermore, we reiterated that “[a]s our courts have applied Lozada v. Deeds, supra, 498 U.S. 430, the mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas court has denied certification to appeal.” Id., 77-78.

In the present case, the petitioner did not brief these threshold issues and, as did the petitioner in Petaway, merely claims ineffective assistance of counsel. The petitioner has failed to establish that the habeas court abused its discretion and cannot, therefore, properly obtain appellate review of the habeas court’s decision. Were we to find that the petitioner’s appeal was properly before us, however, and to reach the merits, our decision to affirm the denial of certification to appeal would stand.

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Mercer v. Commissioner of Correction, 49 Conn. App. 819, 827, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). Under this standard, which was applied in the present case by the habeas court, a constitutional claim of ineffective assistance of counsel will succeed if the petitioner demonstrates both deficient performance and actual prejudice. Strickland v. Washington, supra, 687-88; Mercer v. Commissioner of Correction, supra, 827. Thus, he must establish that the attorney’s performance was so deficient as to be unreasonable under prevailing professional norms, and that there exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 694.

After reviewing the record, we conclude that the habeas court had before it sufficient evidence to find as it did that the petitioner failed to establish that his counsel’s performance was deficient and that he was actually prejudiced by his counsel’s deficient performance. We also conclude that the habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. RUSSELL M. ROLLINS
    (AC 17881)
    O’Coimell, C. J., and Lavery and Landau, Js.

      Argued November 4
    officially released January 12, 1999

      Gerald B. Gore, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Russell M. Rollins, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes (Rev. to 1995) § 53a-82 and committing him to the custody of the commissioner of correction for a period of three years. On appeal, the defendant claims that the trial court (1) improperly found that a condition of probation had been violated and (2) lacked sufficient evidence to support its finding of a violation of probation. We affirm the judgment of the trial court.

Certain facts adduced at the probation hearing are relevant to this appeal. The defendant was convicted on December 21, 1991, of assault of a peace officer in violation of General Statutes § 53a-167c and assault in the third degree in violation of General Statutes § 53a-61. On December 27,1991, the trial court imposed a total effective sentence of three years, execution suspended, and five years probation. As a condition of probation, the defendant agreed, inter aha, to refrain from violating any criminal law of the state of Connecticut.

During the probation hearing, testimony was introduced that indicated that the defendant, while in the bathtub with the victim, his daughter, touched her “private part with his private part.” The victim reported the event to her grandmother. As a result, on August 24, 1995, the victim’s grandmother brought her to a police station, where the victim repeated the allegation. The victim also informed a police officer that during the bath, the defendant had her stand up in the tub, place one foot in the soap dish built into the wall and the other foot on the other side of the tub and touched his penis to her vagina.

After taking the victim’s statement, the police officer brought the victim and her grandmother to the emergency room of Saint Francis Hospital and Medical Center. An examination by Fred Berrien, a physician and an expert in treating child abuse victims, revealed that the condition of the victim’s hymen was consistent with blunt penetrating trauma and a history of sexual abuse, rather than with a bicycle or similar type of accident. The defendant was arrested on charges of first degree sexual assault and risk of injury to a child. Subsequently, as a result of the arrest, a warrant was issued based on a violation of probation. At that time, the defendant had completed all of the special conditions required by his probation.

On October 21, 1997, the trial court found that the state proved by a preponderance of the evidence that the defendant had committed a felony and therefore violated his probation. In so ruling, the trial court found that “the testimony taken as a whole establishes through probative and reliable evidence and by a fair preponderance of the evidence that the commission of a crime, to wit: a felony was committed by the defendant while on probation” and that the victim’s testimony was credible. Accordingly, the trial court revoked the defendant’s probation and ordered him to serve the suspended portion of his original sentence. This appeal followed. On March 25, 1998, following a jury trial, the defendant was acquitted of the charges of sexual assault in the first degree and risk of injury to a child.

“[Ujnder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. . . . If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. . . . [State v. Treat, 38 Conn. App. 762, 766-67, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995)].

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. State v. Davis, [229 Conn. 285, 302, 641 A.2d 370 (1994)]. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... State v. Treat, supra, 38 Conn. App. 769-70. A fact is more probable than not when it is supported by a fair preponderance of the evidence. State v. Haggood, 36 Conn. App. 753, [767-68], 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).” (Internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 400-401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

I

The defendant first claims that the trial court’s factual finding that a condition of probation had been violated was clearly erroneous. Specifically, the defendant claims, in his brief and at oral argument, that he was entitled to an acquittal of the probation violation charge because he was eventually acquitted at trial. We disagree.

As stated previously; see footnote 5; there is no evidence in the record that the defendant was acquitted. Furthermore, the factual circumstances here do not present a case in which the sole basis of the probation violation was a prior conviction rather than a finding by a preponderance of the evidence that there had been a probation violation. See State v. Deptula, 34 Conn. App. 1, 4, 639 A.2d 1049 (1994). Even if we assume, arguendo, that the defendant was in fact acquitted, the outcome of this case remains the same. In a criminal proceeding, substantive guilt must be established beyond a reasonable doubt; a probation violation need be proven only by a preponderance of the evidence. In State v. Davis, supra, 229 Conn. 295-96, our Supreme Court, in agreement with the analogy that the conditions of probation that give rise to the charge are similar to a contract between the state and the defendant, concluded that a probation revocation proceeding is akin to a civil proceeding. Accordingly, the Davis court held that, under § 53a-32, atrial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by the state by a preponderance of the evidence at the hearing. Id., 295.

“A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)]; rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. Id., 402.” State v. Smith, 18 Conn. App. 368, 370 n.1, 558 A.2d 257 (1989); see also State v. Deptula, supra, 34 Conn. App. 5 (state does not need criminal conviction to establish probation violation arising out of criminal conduct). “In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” Payne v. Robinson, supra, 403.

Applying the standard of review to the record before us, we conclude that on the basis of the evidence presented at the hearing, the trial court reasonably could have found, under the preponderance of the evidence standard, that the defendant violated his probation. According to his condition of probation, it was not necessary that the defendant be convicted of a crime to have violated his probation. The trial court found that the probation violation stemmed from the defendant’s engaging in the commission of a crime and thus violating a criminal law of the state of Connecticut. Such a finding was supported by the witness’ testimony at the revocation hearing. We conclude, therefore, that the trial court did not abuse its discretion and that the finding of a violation of probation is not clearly erroneous.

II

The defendant next claims that because the evidence of the alleged probation violation was insufficient, “the defendant is entitled to an acquittal of the allegation that he was in violation of probation.” Specifically, the defendant’s sufficiency argument is that the victim’s testimony that she was sexually assaulted by her father, the defendant, together with the physician’s confirmation that she had been sexually assaulted, does not rise to the appropriate level necessary to satisfy the state’s burden of proof. In other words, the defendant’s claim is that the trial court inappropriately chose to believe the victim and the physician. Again, we disagree.

The weight to be given the evidence and the credibility of witnesses are solely within the determination of the trier of fact. State v. Scott, 31 Conn. App. 660, 664, 626 A.2d 817 (1993). In the statutory probation hearing, the trial court acts as the trier of fact in making the findings as to whether the defendant has violated the terms of his probation. See State v. Roberson, 165 Conn. 73, 80-81, 327 A.2d 556 (1973). “ ‘If the record supports the trial court’s finding that the defendant failed to comply with the conditions of his probation, the trial court then had the discretion to order a revocation of the probation.’ ” State v. Scott, supra, 664.

After a careful review of the record, we conclude that the state has met its burden. Specifically, a fair reading of the record, particularly the testimony of the victim and the physician, provides more than sufficient proof to determine, by a fair preponderance of the evidence, that the defendant engaged in the commission of the act and, as such, violated a condition of his probation. See Payne v. Robinson, supra, 10 Conn. App. 403 (finding of conviction or commission of act is sufficient to support revocation of probation).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 53a-32 (b) provides: “If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The defendant raises two claims that, when analyzed, reasonable people might classify as a sufficiency challenge. So as to err, however, if we do so at all, on the side of clarity and fairness, we accept the defendant’s invitation and address both issues.

       The victim, who was three or four years old at the time of the incident and seven years old at the time of the hearing, described a “bad touch” as someone touching you in a “private part” and a person’s “private part” as the part of the body used when he or she “goes to the bathroom.”

       In addition, the trial court, after hearing argument and considering the evidence regarding the continued probation status of the defendant, found that the beneficial aspects of sentencing were not being served by the continued probation status of the defendant. The defendant does not question that portion of the trial court, judgment regarding the second component of a probation revocation hearing in this appeal.

       Although there is no evidence of the acquittal in the record, the defendant's argument presented in his brief and at oral argument is that he was acquitted. The state’s response, at oral argument, to the defendant’s argument was based on the existence of the defendant’s acquittal.

       Moreover, the defendant’s claim seems to be focused, by way of a semasiológica! argument, on the trial court’s ruling that “the commission of a crime, to wit: a felony was committed by the defendant while on probation.” In his brief, the defendant, while admitting that he was arrested for sexual assault and risk of injury to a child, contends that this fact alone was not enough to support a finding of a violation of a criminal law of this state. The defendant also states in his brief that “[t]he trial court’s finding was not that [the defendant] either engaged in the conduct or committed the acts with which he was charged by a fair preponderance of the evidence. If it was, then possibly, perhaps, the October arrest charges could be said to support it. Instead, here, the trial court found that [the defendant] committed a crime, that he violated a criminal law of the state.” The record is very clear that the trial court, by finding that the defendant committed the crime with which he was charged by a fair preponderance of the evidence, inferentially found that the defendant committed the conduct. Accordingly, this conduct violated state law and, thus, violated the conditions of his probation. To rule otherwise would be to raise form over substance.


text:
    JAMES FIOLEK v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17771)
    O’Connell, C. X, and Foti and Dupont, Js.
    Submitted on briefs October 29, 1998
    officially released January 12, 1999

      Zbigniew S. Rozbicki filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Robert L. Marconi, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles suspending his license to operate a motor vehicle pursuant to General Statutes § 14-227b. The plaintiff claims that the trial court improperly (1) found that there was sufficient evidence in the administrative record to support the commissioner’s decision, (2) found that the commissioner’s decision complied with a prior remand, (3) sustained the commissioner’s decision and (4) failed to follow the law of the case doctrine. We affirm the judgment of the trial court.

The commissioner, through a hearing officer, suspended the plaintiffs license to operate a motor vehicle for ninety days because the plaintiff had failed a breath test after he was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The plaintiff appealed from that decision to the trial court pursuant to General Statutes § 4-183. The trial court, Maloney, J., sustained the appeal and remanded the case to the commissioner to render a new decision that would set forth the findings of fact and conclusions of law necessary for review.

Following the remand, the commissioner, through his hearing officer, rendered a new decision and the plaintiff again appealed to the trial court, DiPentima, J., which dismissed the appeal. The matter now before us concerns only the second appeal.

Our examination of the record and briefs persuades us that the judgment of the trial court should be affirmed. The issues regarding the underlying factual disputes were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. Fiolek v. Commissioner of Motor Vehicles, 45 Conn. Sup. 489, 722 A.2d 1237 (1997). Because that memorandum of decision fully and properly addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the decision contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(c) If the person arrested . . . submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. . . . The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor . . . [and] that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.”

       The trial court stated in its memorandum of decision that “it was incumbent on the hearing officer to write a decision that sets forth specific findings on crucial elements—the time of operation, for a prime example—and explains how he arrived at those findings of fact on the basis of the poorly prepared police documents. The decision that the hearing officer did write in this case does not provide an adequate basis for the court’s review.”

       The plaintiffs claim that the trial court improperly applied the law of the case doctrine contains no analysis of the law or citation to legal authority. Accordingly, we decline to review it. Practice Book § 67-4, formerly § 4064C. Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).