author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. DONALD G. BEAULIEU
    (AC 30104)
    Bishop, Lavine and Schaller, Js.

      Argued September 8
    officially released November 10, 2009

      Lisa J. Steele, special public defender, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Donald G. Beaulieu, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the trial court abused its discretion in allowing the testimony of two late disclosed witnesses and (2) his conviction under both § 53-21 (a) (1) and (2) violated his protection against double jeopardy. We affirm the judgment of the trial court.

The juiy reasonably could have found the following relevant facts. The first encounter between the victim and the defendant occurred some time after February, 2007, when the minor victim began skipping school to spend time at Hamilton Park in Waterbury. The victim would sit on a rock and wait for men to approach him and to ask him to engage in sexual acts in exchange for money. One day while the victim was sitting on the rock, the defendant drove into the park and waved the victim over to his car. The victim approached the defendant’s car, and the defendant asked if the victim wanted to go into the nearby wooded area with him. The two walked into the wooded area, and the defendant then positioned the victim against a tree and pulled down both his and the victim’s pants. The defendant noticed someone looking at them and moved himself and the victim to the other side of the tree for privacy. The defendant then performed fellatio on the victim. After about ten minutes, the defendant pulled up his pants and led the victim out of the wooded area. The defendant asked the victim to wait at the edge of the wooded area, got in his car and left the park. The victim then left the wooded area. Ronald A. Bridschge observed the defendant and the victim leaving the wooded area.

At a later date, also between February and May, 2007, the victim and the defendant had a second encounter. The victim again skipped school to go to Hamilton Park. As the victim was approaching Hamilton Park by foot, the defendant drove up to him and asked him to get into the backseat of his car, then drove to Hamilton Park. Once at the park, the defendant stopped his car, got out and opened the door to the backseat. The defendant then pulled down both his and the victim’s pants and began performing fellatio on the victim. Another car interrupted the defendant, who, after motioning for the car to pass, parked the car and again led the victim into the wooded area. Once in the wooded area, the defendant performed fellatio on the victim. After ten minutes, the defendant led the victim out of the wooded area and gave him a ride back to the entrance to the park.

Some time in May, 2007, the victim’s father found the victim with two older men outside the Waterbury public library and took him to the police department. The victim returned to the Waterbury police department a few days later and told investigators all the relevant details pertaining to his two sexual encounters with the defendant. The defendant subsequently was charged with two counts of sexual assault in the second degree in violation of § 53a-71 (a) (1), one count of risk of injury to a child in violation of § 53-21 (a) (1) and two counts of risk of injury to a child in violation of § 53-21 (a) (2). Following a jury trial, the defendant was found guilty on all counts and sentenced to a total effective term of eighteen years, suspended after ten years, with fifteen years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in allowing Bridschge and Walter Rodgers to testily. Specifically, the defendant maintains that the witnesses should not have been allowed to testify, first, because the state failed to question the victim about the existence of witnesses in its initial interviews with the victim in May, 2007, and second, because the state breached its duty to disclose the victim’s February 14, 2008, statement that revealed the existence of witnesses. Additionally, the defendant argues that the court abused its discretion in allowing the witnesses to testify over defense objection. The first two claims were not preserved at trial and are not reviewable on appeal. See State v. Ankerman, 81 Conn. App. 503, 508, 840 A.2d 1182, cert. denied, 270 Conn. 901, 853 A.2d 520, cert. denied, 543 U.S. 944, 125 S. Ct. 372, 160 L. Ed. 2d 256 (2004). We disagree with the defendant’s third claim.

The following facts are relevant to the defendant’s claims. On February 14, 2008, the victim gave an oral statement to investigators that the person who had seen the defendant and the victim engage in a sexual act in the wooded area had a “goldish brown” car and that the person who had seen him emerge from the wooded area drove a green or gold colored van. The victim also gave physical descriptions of the two witnesses. Acting on this information, investigators began looking for the two individuals. On March 7, 2008, the man whom the victim had seen when he emerged from the wooded area was identified by investigators as Bridschge. On March 10, 2008, investigators first talked to Bridschge, and, the following day, Bridschge told investigators that the other eyewitness was Rodgers.

The state provided the defendant with a list of potential witnesses on February 25, 2008. The state made several revisions to the initial list and, on March 10, 2008, Bridschge’s name first appeared as a potential witness. The following day, on March 11, 2008, the state sent another revised list that included the names of both Bridschge and Rodgers. The trial began one week later on March 17, 2008.

A

With regard to the defendant’s first two claims, he asserts for the first time on appeal that the state failed to question the victim about the existence of witnesses during its initial interviews with the victim in May, 2007, and that the state breached its duty to disclose the victim’s February 14, 2008, statement that revealed the existence of witnesses. Although the defendant objected to the court’s permitting Bridschge and Rodgers to testify, he did not do so on the grounds that the state improperly questioned the victim or breached its duty to disclose the victim’s statement about the witnesses. The defendant therefore seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant did not, however, engage in a Golding analysis in his appellate brief. “[Defendants who seek consideration of unpreserved constitutional claims [on appeal] . . . bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding . . . .” State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997). In his brief, the defendant makes only passing references to Golding and has provided us with no analysis of its four prongs. In the absence of adequate briefing of the issues, we will not address these two arguments raised by the defendant that were not properly preserved in the trial court. See State v. Ankerman, supra, 81 Conn. App. 508.

B

The defendant’s third claim, which is that the court abused its discretion in allowing the witnesses to testify over his objection, was preserved by his motion to preclude certain evidence and motion in limine. On March 17, 2008, the defendant filed a motion to preclude the state from calling Bridschge or Rodgers, asserting that it was “unbelievable” that the state could locate an eyewitness days prior to the presentation of evidence at trial. The court denied the defendant’s motion but offered the defendant additional time to interview the newly discovered witnesses. The defendant also filed a motion in limine to bar the testimony of Bridschge on the ground that it was unreliable, and a motion to suppress the identification of the defendant by both Bridschge and Rodgers. The court denied both of the defendant’s motions. The court again, however, offered the defendant additional time for the purposes of further investigation in light of the testimony. Defense counsel declined, stating, “I appreciate the offer, Your Honor, but just as a matter of strategy, I’d rather keep going on with the trial.”

To prevail on his claim, the defendant must demonstrate that the court abused its discretion in refusing to impose the requested sanctions. State v. Troupe, 237 Conn. 284, 311-12, 677 A.2d 917 (1996). “In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 416, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

“Practice Book § 40-5 gives broad discretion to the trial judge to grant an appropriate remedy for failure to comply with discovery requirements. Generally, [t]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are protected, not to exact punishment on the state for its allegedly improper conduct. As we have indicated, the formulation of an appropriate sanction is a matter within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Wilson F., 77 Conn. App. 405, 417, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003).

“Suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly.” State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980). Here, although the court, in denying the defendant’s motion to preclude, accepted the state’s explanation that the witnesses were discovered during an ongoing investigation, it nonetheless offered the defendant time for further investigation. The court made a similar offer after denying the defendant’s motion in limine. The remedy offered, although not that which the defendant requested, is one enumerated in Practice Book § 40-5 as appropriate for a failure to comply with disclosure.

Furthermore, the defendant cannot claim error on appeal because his trial strategy failed. The defendant elected not to accept the court’s offer of additional time to investigate the two witnesses. The defendant, therefore, has not demonstrated that he was prejudiced by the court’s ruling. “Our appellate courts frequently have stated that a party may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted.) State v. Davis, 76 Conn. App. 653, 662, 820 A.2d 1122 (2003). The court did not abuse its discretion in awarding this remedy and allowing the witnesses to testify over the defendant’s objections.

II

The defendant’s final claim is that his conviction under both § 53-21 (a) (1) and (2) for a single course of conduct, stemming from his first encounter with the victim, violated his protection against double jeopardy. The defendant initially was charged with two counts of sexual assault in the second degree in violation of § 53a-71 (a) (1) and two counts of risk of injury to a child in violation of § 53-21 (a) (2). When the state filed its long form information, it added a count of risk of injury to a child in violation of § 53-21 (a) (l). The defendant was found guilty on all counts. The defendant now argues that he was punished twice, under both § 53-21 (a) (1) and (2), for a single course of conduct that arose out of his initial interaction with the victim. We disagree.

The defendant did not preserve his claim at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. Such review is warranted. “A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial .... Because the claim presents an issue of law, our review is plenary “ (Citation omitted.) State v. Crudup, 81 Conn. App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004).

“In determining whether a defendant has been placed in double jeopardy under the multiple punishments prong, we apply a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). “On appeal, the defendant bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).

With regard to the first step of the double jeopardy analysis, the defendant contends that his waving the victim over from the rock on which he was sitting to his car, asking the victim to go into the wooded area, walking with the victim into the wooded area, performing fellatio on the victim and finally exiting the wooded area with the victim constitutes one act or transaction for the purposes of the double jeopardy analysis. “For the first prong of the analysis of the defendant’s claim, it is necessary to review the information and the bill of particulars.” (Internal quotation marks omitted.) State v. Vazquez, 66 Conn. App. 118, 124, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). The long form information, however, does not specify the precise dates or times when the conduct occurred, nor does it detail which events underlie each risk of injury charge.

When, as here, the bill of particulars and information fail to provide the specific dates and times of the charged acts, we must look to the evidence presented at trial to determine whether each count arose from a separate act. See State v. Miranda, 260 Conn. 93, 122-24, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); see also State v. Howard F., 86 Conn. App. 702, 710-11, 862 A.2d 331 (2004), cert. denied, 273 Conn. 924, 871 A.2d 1032 (2005). The jury reasonably could have found that during the first encounter, the defendant drove to the park and, while in his car, waved the victim over to him, asked the victim if he wanted to go into the wooded area, walked into the wooded area with the victim and then performed the sexual act on the victim.

Though it relates to kidnapping, not risk of injuiy to a minor, both parties rely on our Supreme Court’s decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). In support of his argument, the defendant maintains that the events leading to the sexual act were minimal, incidental to and necessary for the sexual act to occur and not a separate act or transaction. The state contends that the act of enticing a victim into the wooded area to engage in a sexual act is not incidental to and necessary for the commission of unlawful sexual contact with a minor. Salamon holds that “the test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.” (Emphasis added; internal quotation marks omitted.) Id., 547. Although Salamon concerns kidnapping, we do not dispute the parties’ shared assumption that the analysis utilized in Salamon provides some assistance in evaluating whether the conduct at issue in this case constitutes separate acts for double jeopardy purposes.

This court has held previously that a defendant could be found guilty under § 53-21 (a) (1) for attempting to lure a minor into a situation for the purpose of engaging in sexual acts with him, even if the defendant was not successful in doing so. State v. Eastwood, 83 Conn. App. 452, 850 A.2d 234 (2004), cert. denied, 286 Conn. 914, 914 A.2d 945 (2008). “The fact that the defendant did not actually impair the boys’ morals is of no consequence. . . . What the statute precludes is the creation of a situation that is likely to impair the morals of a victim younger than sixteen years of age.” Id., 476. The fact that here the defendant was successful in enticing the victim into the wooded area so that he could then make “contact with the intimate parts ... of a child” in violation of § 53-21 (a) (2) does not belie the fact that his luring the victim over to his car was sufficient for independent prosecution under § 53-21 (a) (1) for placing a child younger than sixteen “in such a situation that . . . the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . .” See State v. Snook, 210 Conn. 244, 261-62, 555 A.2d 390 (analogizing violations of § 53-21 to forcible sexual intercourse, where it has been held that “each separate act . . . constitutes a separate crime” [internal quotation marks omitted]), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

As Salamon and its progeny make clear in the context of our kidnapping statutes, for an act not to warrant independent prosecution it must be “merely incidental to and necessary for” the underlying crime. State v. Salamon, supra, 287 Conn. 542. The defendant’s enticing the victim into a situation for the purpose of engaging in a sexual act was not “merely incidental and necessary to” his performing fellatio on the victim; it was sufficient for independent prosecution under § 53-21 (a) (1). A different view would allow a person, who has placed a child younger than sixteen in a situation in which his morals are likely to be impaired, to touch that child’s intimate parts without fear of prosecution for having created the opportunity.

The defendant’s actions in luring the victim into the wooded area can be considered a separate act or transaction from the commission of the sexual act itself. As this case is decided on the first prong of the double jeopardy inquiry, there is no need to address the second prong. The defendant’s double jeopardy claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The victim was bom on July 4, 1991, and was fifteen years old between February and May, 2007, when the events at issue took place.

       Investigators later discovered that Walter Rodgers was the individual who saw the defendant and the victim in the wooded area.

        Golding holds that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant’s claim is similarly not reviewable under the standard this court announced in State v. Wright, 114 Conn. App. 448, 969 A.2d 827 (2009). There, this court maintained that a defendant need not cite Golding, but only “present a record that is adequate for review and affirmatively [demonstrate] that his claim is indeed a violation of a fundamental constitutional right." (Internal quotation marks omitted.) Id., 463.
      Here, because the defendant at trial did not raise his concern regarding the stale’s investigation, the state was not on notice that it had to establish a record sufficient to defend the competency of the investigation and thus did not do so. The record, therefore, is not adequate for review. See State v. Brunetti, 279 Conn. 39, 57-60, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).

       Practice Book § 40-5 provides in relevant part: “If a party fails to comply with disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders and time limitations as it deems appropriate, including, without limitation, one or more of the following . . . (2) Granting the moving party additional time or a continuance . . . .”

       In denying the defendant’s motion to preclude, the court stated: “I’m not happy with this late disclosure, but I do understand the scenario, and I accept [the prosecution’s] representation of the facts as presented. I will deny the motion to preclude. ... So, [defense counsel] ... I will give you as much time as you like. ... If you want me to . . . take off Monday morning while you go talk to him ... I think you’re entitled to that.”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years ... in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

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

       At oral argument, the state clarified that the risk of irtjury charge brought under § 53-21 (a) (1) pertained to the first incident between the victim and the defendant.

       In Salamon, our Supreme Court reversed its long-standing jurisprudence that held that the crime of kidnapping encompasses restraints that are necessary or incidental to the commission of a separate underlying crime. The court held that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime.” State v. Salamon, supra, 287 Conn. 542.

       The second prong of the double jeopardy analysis requires application of the familiar test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), and adopted by our Supreme Court in State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001). See State v. Re, 111 Conn. App. 466, 469, 959 A.2d 1044 (2008), cert. denied, 290 Conn. 908, 964 A.2d 543 (2009). We need not perform a Blockburger analysis, however, as this case is decided on the first prong.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    IN RE KAITLYN A.

    (AC 30298)
    Beach, Alvord and West, Js.

      Argued September 16
    officially released November 10, 2009

      Robert L. Shelley, for the appellant (respondent mother).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, scad Susan T. Pearlman, assistant 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

WEST, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights as to Kaitlyn A., her minor child. In this appeal we must determine whether the court abused its discretion when it denied the respondent’s request for the appointment of new counsel at the commencement of the trial on the termination petition and whether the decision of the trial court terminating her parental rights with respect to her child is factually and legally supported by the record. Specifically, the respondent claims that the court erred by not allowing her a continuance for the appointment of new counsel despite her having informed the court, prior to the commencement of the termination hearing, that she could no longer effectively communicate with her attorney. The respondent also contends that the court improperly found that she failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (ii). We affirm the judgment of the trial court.

Prior to the child’s birth, the respondent had a significant history with the department of children and families (department). The respondent gave birth to the child on September 5, 2004. At the time of the child’s birth, the respondent was on probation. The department became involved with the respondent with regard to the child on December 29, 2005, on the basis of concerns over possible physical neglect of the child. At the time, the department sought to provide services to the respondent to aid her in providing adequate care for the child and to monitor the child’s safety and well-being. The department was concerned because of the respondent’s long history of untreated substance abuse, the deteriorating and unkempt condition of her home and a report from police that the respondent had left the child alone in the home. On March 3, 2006, the petitioner, the commissioner of children and families, filed with the court a petition for neglect on behalf of the child.

On May 11, 2006, the department received an anonymous telephone call on its hotline concerning the respondent’s lack of supervision over the child. It was the third report received by the department regarding the respondent’s apparent failure to supervise the child properly. The caller reported that the twenty month old child was outside the home wandering unsupervised and that the caller had retrieved the child from the respondent’s backyard and taken her back into the home. Inside the home, the caller found the respondent unconscious and apparently under the influence of alcohol or drugs or both. As a result of this anonymous call, the department sent Vincent Tinnerello, a department social worker, to the respondent’s home for an unannounced home visit.

Tinnerello reported that the respondent answered the door in a disheveled state, wearing dirty clothes. The respondent appeared to Tinnerello to be inebriated, her eyes were glassy and her pupils were dilated. She also was swaying from side to side and spoke in incomplete sentences. Tinnerello observed dirty clothing, debris and dog food strewn about the floors, as well as garbage overflowing the trash receptacle in the kitchen. He saw a cigarette lighter placed on the tray of the child’s high chair. The child also was in a disheveled state, dressed in dirty, tattered clothing and appeared unwashed, with dirt and grime all over her body. The hems of her pant legs were wet, dirty and excessively worn, leading Tinnerello to conclude that the child had been outside with no shoes on. During Tinnerello’s interview with the respondent, the child attempted on several occasions to exit the apartment to leave the building. Tinnerello had to prompt the respondent several times before she retrieved the child and brought her back inside the home.

Tinnerello informed the respondent that in his opinion the home did not appear safe for the child, in part, because of her incoherent state. In light of her apparent state of inebriation as well as her history of substance abuse, he requested that the respondent submit to an immediate urine screen to detect whether she was under the influence of illegal substances. The respondent refused his request at first; however, after repeated attempts by Tinnerello to gain her cooperation, the respondent agreed to submit to a urine screen. Despite her apparent cooperation, later that evening the respondent refused outright to give a urine sample. The department subsequently determined that it had reasonable cause to believe that the respondent was actively using illegal substances; the respondent was unable to provide adequate supervision for the child; the home was unsafe for the child; and the respondent had two previous terminations of her parental rights with two similarly situated children. As a result, the department invoked a ninety-six hour hold on behalf of the child and removed her from the respondent’s home that day. See General Statutes § 17a-101g. On November 29,2006, the court, Boland, J., adjudicated the child neglected and committed her to the care and custody of the petitioner.

On April 30, 2007, the petitioner filed this termination petition on two grounds. First, the petitioner alleged that the child previously had been adjudicated neglected and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the child’s age and needs, she could assume a responsible position in her life. See General Statutes § 17a-112 Q) (3) (B). Second, the petitioner alleged that the respondent was the parent of a child younger than age seven who was neglected or uncared for; she failed, or was unable, to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, she could assume a responsible position in the child’s life; and that her parental rights as to another child previously had been terminated pursuant to a petition brought by the petitioner. See General Statutes § 17a-112 Q) (3) (E). The trial on the termination petition commenced on May 20, 2008, and was continued on May 21 and August 11, 2008. During the pendency of the termination trial, the respondent was incarcerated as a result of her conviction for a violation of probation. By memorandum of decision filed August 12, 2008, the court, Randolph, J., terminated the respondent’s parental rights with respect to the child. This appeal timely followed. Further facts will be set forth as necessary.

I

The respondent first claims that the court abused its discretion when it denied her request for the appointment of new counsel at the commencement of the trial on the termination petition in light of her declaration to the court that she could no longer effectively communicate with her court-appointed counsel. The petitioner contends that the court did not abuse its discretion when it denied the respondent’s request. We agree with the petitioner.

“There is no unlimited opportunity to obtain alternate counsel. ... It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . Moreover, absent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error. . . . Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Citation omitted; internal quotation marks omitted.) State v. David M., 109 Conn. App. 172, 177, 950 A.2d 599, cert. denied, 289 Conn. 924, 958 A.2d 154 (2008).

Raymond Parlato was appointed to represent the respondent on October 25, 2006, and continued his representation throughout the trial on the termination petition. Parlato was the third attorney to represent the respondent in the termination proceedings. The trial commenced on May 20, 2008. Preliminarily, the court addressed the respondent concerning a letter she had sent to the court that was dated May 14, 2008. In that letter, the respondent indicated that she wanted the court to appoint new counsel. The court indicated that it would allow the respondent to place her concerns on the record and, following that, would decide if further inquiry into the matter was required. The respondent first stated that although she had requested in writing that Parlato subpoena certain witnesses, he had not done so. She also indicated that she did not provide Parlato the complete names and addresses for each but that he should have been able to locate them either at their former place of employment — a day care center— or in her former neighborhood. The respondent also contended that she had yet to read a court-ordered psychological assessment report (assessment). She stated that when Parlato had brought it to her at the correction facility, she did not have her glasses with her and could not read it without them. The respondent also claimed that Parlato was rude, had yelled at her and threw up his arms, and, as a result, she was intimidated by him. Because of those incidents, the respondent asserted, she was “not ready to go to trial with [Parlato] and [did not] want him as [her] attorney.”

The court first addressed the respondent’s contention concerning her request of Parlato to subpoena certain witnesses. After concluding that the subpoenaing of witnesses by Parlato was a matter of strategy, it stated to the respondent, “[i]t may be that you disagree with the strategy, but . . . stating that he hasn’t subpoenaed the witnesses that you want subpoenaed doesn’t indicate to the court that [that] strategy ... is not the one you want to pursue.” The court also concluded that it was too early in the proceeding for it to make a determination concerning the efficacy of Parlato’s trial strategy and underscored that it “may not ever be in a position to make a determination that [the respondent’s] strategy is a better strategy.” The court also stated that the respondent had failed sufficiently to demonstrate to Parlato the substance of the testimony those potential witnesses would offer such that he could base his trial strategy on that potential testimony. Last, the court also noted that “the respondent’s witnesses were not going to be called today in any event. If it is determined by . . . Parlato in consultation with his client that certain witnesses, which heretofore had not been thought to be strategically advantageous may become strategically advantageous after today’s testimony, then those witnesses may be pursued.”

The court then addressed the respondent’s contention that she had not been given an opportunity to read her court-ordered assessment. After determining that the respondent still had not read the assessment, the court inquired as to whom the petitioner would be calling as witnesses that day and whether any of those witnesses would be testifying concerning the substance of the assessment. The court then directed the petitioner to call only witnesses who had no testimony relating to the assessment. The court concluded that there was no substantial reason to delay the trial any further to accommodate the respondent beyond that measure. The court also heard from Parlato concerning this matter. Parlato asserted that he had concerns about communicating effectively with the respondent and her lack of cooperation with him, as well as any subsequent grievances she may file as a result of the deterioration of the attorney-client relationship.

“A request for the appointment of new counsel must be supported by a substantial reason and may not be used to cause delay. ... In order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances. ... It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . Moreover, absent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” (Citations omitted; internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 423-24, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).

Here, in deciding whether to appoint new counsel to represent the respondent, the court stated that its concern was the judicious disposition of the termination trial. The court continued, stating that “[t]here is nothing that has been offered to the court this morning that indicates that . . . Parlato is unable to proceed. There’s nothing to indicate that . . . Parlato is unprepared to proceed. The circumstance as it exists today is a circumstance that exists everyday. There’s a disagreement as to how to proceed, which witnesses to call, and possibly just raw relations between counsel and the client.

“Those are not extraordinary or exceptional circumstances. The court has fashioned a manner of proceeding which avoids . . . having to call [the] respondent’s witnesses, any of them today, and having to call witnesses to respond to the [assessment] today. And even . . . not allowing the [petitioner] to call witnesses to testify about the [assessment].

“Whether [the respondent] decides to communicate with . . . Parlato is her decision. This court is not going to defer the goals of the policy of early permanency because [a] client doesn’t like counsel. Hundreds of cases would be deferred daily if that were the case. So, what [the respondent] decides to do today is up to her, but the matter’s going to proceed.”

Our review of the record supports the court’s factual determination that no substantial reason existed to justify replacement of the respondent’s counsel on the eve of trial. We first note that our review of the record reveals that the May 14 letter was the first instance in the nineteen months that Parlato represented the respondent that she made any indication to the court that she had problems with him, his strategy or the sufficiency of his representation of her in the matter. Moreover, the court took pains to inquire into the bases of the respondent’s request for new counsel, as well as to fashion suitable remedies for those concerns to which it could respond. The record supports the court’s conclusion that the disagreement as to strategy and “raw relations” exhibited in the attorney-client relationship did not rise to the level of a conflict between the respondent and Parlato so great that it resulted in a total lack of communication and prevented an adequate defense. See State v. Williams, 102 Conn. App. 168, 206, 926 A.2d 7 (court did not abuse discretion when it denied appointment of new counsel when defendant did not demonstrate that conflict was other than disagreement on trial strategy), cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). We conclude, therefore, that the court did not abuse its discretion when it denied the respondent’s request for new counsel.

II

Next, the respondent claims that the decision of the court terminating her parental rights with respect to her child is not factually and legally supported by the record. Specifically, the respondent contends that the court improperly found that she failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 0) (3) (B) (ii). We disagree.

Failure to achieve a sufficient degree of personal rehabilitation is one of the statutory grounds on which parental rights may be terminated under § 17a-112 (j) (3). “We have stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’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. . . . Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life. . . .

“[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt 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. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis. . . .

“Although the standard is not full rehabilitation, the parent must show more than any rehabilitation. . . . Successful completion of the petitioner’s expressly articulated expectations is not sufficient to defeat the petitioner’s claim that the parent has not achieved sufficient rehabilitation. . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue. . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.” (Citations omitted; internal quotation marks omitted.) In re Alejandro L., 91 Conn. App. 248, 259-60, 881 A.2d 450 (2005).

The respondent essentially contends that there was no evidence to support a finding that she was incapable of caring for the needs of her child and that the evidence only indicated, at most, a perception that the respondent was unable “to manage her own life more appropriately.” See In re Amneris P., 66 Conn. App. 377, 384, 784 A.2d 457 (2001) (critical issue assessing rehabilitation not whether parent improved ability to manage own life but, rather, whether parent gained ability to care for particular needs of child).

On the basis of our review of the record, we conclude that the evidence credited by the court supports its conclusion that the respondent failed to attain a degree of rehabilitation sufficient to warrant the belief that within a reasonable period of time, she would be capable of assuming a responsible position with respect to the child. The respondent was given specific steps to take toward reunification with her child from the date the child was adjudicated neglected. See footnote 5 of this opinion. She was repeatedly unsuccessful in her attempts to seek both inpatient and outpatient drug treatment and counseling and failed to comply with or to participate consistently in the programs to which the department referred her. She also failed to curtail her involvement with the criminal justice system as required under the specific steps. On April 30, 2004, the respondent was placed on probation. See footnote 3 of this opinion. Subsequently, she failed to report to her probation officer on sixteen occasions, twice tested positive for cocaine and left the state without her probation officer’s permission — each a violation of her probation and, therefore, court-ordered specific step. As a result, the respondent was charged with a violation of probation, to which she pleaded guilty and was sentenced to five years’ incarceration, execution suspended after one year. The respondent was incarcerated during the trial on the termination of her parental rights. Moreover, the record reveals that in the months prior to her incarceration, the respondent was homeless.

We conclude that the court’s finding, by clear and convincing evidence, that the respondent failed to achieve a degree of rehabilitation as would encourage the belief that within a reasonable period of time she could assume a responsible position in the child’s life was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated by consent the parental rights of the minor child’s father. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent.
      We also note that pursuant to Practice Book § 67-13, the attorney for the minor child filed a statement adopting the brief of the petitioner, the commissioner of children and families.

       The petitioner, the commissioner of children and families, also sought termination of the parental rights of the respondent with respect to two of her other children bom prior to the child in this appeal. See In re Kristy A., 83 Conn. App. 298, 304, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004). In the previous proceeding, the court terminated the respondent’s parental rights after it found by clear and convincing evidence “that the children had been adjudicated neglected, had been committed to the custody of the petitioner on April 4,2001 . . .[and] that since the children had been adjudicated neglected, the respondent had failed to achieve such degree of personal rehabilitation as would encourage a belief that within a reasonable time, given the ages and needs for stability and permanency of both children, she could assume a responsible position in their lives.
      The court also found that the petitioner had proven by clear and convincing evidence that no ongoing parent-child relationship within the meaning of § 17a-112 (j) (3) (D) existed between the two children and the respondent. Further, the court concluded that to allow additional time for the establishment or reestablishment of a positive parent-child relationship would not be in the best interest of either child.” Id., 304-304. Central to the department’s previous involvement with the respondent were issues of chronic substance abuse and repeated criminal activity. Id., 299-304.

       On October 12, 2001, pursuant to a negotiated plea agreement with respect to a charge of robbery in the first degree, the respondent was sentenced by the court, Foley, J., to five years incarceration, suspended after three years, and five years of probation. See In re Kristy A., 83 Conn. App. 298, 304, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004).

       The department also had concerns over the respondent leaving the child at a day care provider that it had reported to the department of public health for deplorable conditions. It also received information from the respondent’s probation officer that her landlord had notified the probation officer that she was involved in drug activity.

       The court also ordered specific steps to facilitate the return of the child to the respondent. Those included that the respondent keep all appointments with the department, cooperate with department home visits, keep her whereabouts known to the department, submit to substance abuse assessment and follow recommendations regarding treatment, submit to random drug testing, cooperate with court-ordered evaluations, secure and maintain adequate housing and income from legal sources, not engage in substance abuse, have no further involvement with the criminal justice system, cooperate with her probation officer and comply with conditions of probation and visi! the child as often as the department permits.

       The respondent also seems to make claims that as a result of the breakdown in the communication between the respondent and Raymond Parlato, her trial counsel, Parlato provided ineffective assistance of counsel to the respondent. At one point in her brief to this court, the respondent claims that Parlato had an “underlying need to be self-protective” because of the potential ramifications of the failure of communication between him and the respondent.
      Furthermore, the respondent appears to contend that Parlato’s need to be self-protective “colored” his actions on his client’s behalf during the termination trial and, therefore, essentially rendered his assistance ineffective and materially affected the outcome of the termination trial. Last, the respondent also contends, in regard to her claim that the decision of the court terminating her parental rights with respect to her child is not factually and legally supported by the record; see part II of this opinion; that she was “denied the opportunity to provide the court with evidence that would have been sufficiently persuasive to allow a different outcome.”
      Because the respondent fails to cite any authority or to provide adequate analysis in support of such claims, we decline to review those claims insofar as they concern an assertion of ineffective assistance of counsel. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

       The record indicates that there was a day care center next door to the respondent’s former home, but it is not clear from the record whether that was the day care center to which the respondent was referring on May 20, 2008.

       The respondent further indicated that she sought help in filing a formal complaint against Parlato from representatives of the inmates legal assistance program.

       The respondent conceded at oral argument before this court that Parlato competently conducted all aspects of the trial, including introducing exhibits into evidence, cross-examining several witnesses and conducting direct examination of the respondent.

       See footnote 5 of this opinion.


author: PELLEGRINO, J.

text:
    PATRICIA B. DANEHY v. BENJAMIN J. DANEHY III
    (AC 29873)
    Graendel, Harper and Pellegrino, Js.
    Argued September 14
    officially released November 17, 2009

      Mark R. Soboslai, for the appellant (defendant).

      Susan E. Nugent, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Benjamin J. Danehy III, appeals from the judgment of the trial court denying his motion for modification of alimony and support. On appeal, the defendant claims that, in denying his motion, the court misconstrued the language of the separation agreement that bound him and the plaintiff, Patricia B. Danehy, and made factual findings that had no eviden-tiary basis. We agree with the defendant and reverse the judgment of the trial court.

The following facts and procedural histoiy are relevant to the defendant’s appeal. The parties’ marriage was dissolved on March 28, 2000. On that date, the court approved a separation agreement between the parties and incorporated the terms of the separation agreement into the judgment. Pursuant to the agreement, the defendant was obligated to pay the plaintiff “the sum of $500 per week as unallocated alimony and support until June 30, 2014. . . . The alimony component of this order is non-modifiable as to term but is modifiable as to amount.” The separation agreement explicitly stated that “[t]hese orders are based on a presumed gross income to the [defendant] of $70,000 per year and a presumed gross income to the [plaintiff] of $25,000 per year. The [plaintiff] shall have a safe harbor of earnings to $25,000 per year which shall not constitute a substantial change in circumstances for purposes of a modification.”

On January 30, 2008, the defendant filed a motion for postjudgment modification, alleging that since the dissolution, (1) his income has been substantially reduced, (2) the plaintiffs income has increased, (3) only one child of the marriage remains a minor and (4) the defendant has had an additional child. On February 28,2008, the defendant filed a sworn financial affidavit which indicated gross earnings from employment of approximately $41,000 per year. On March 6,2008, the court held a brief evidentiary hearing on the defendant’s motion, which included sworn testimony from both self-represented parties. At the hearing, the plaintiff submitted an incomplete financial affidavit and testified regarding her income. At the court’s request, the plaintiff filed a sworn financial affidavit after the hearing, which indicated that she was earning less than $25,000. On March 10, 2008, the court issued a brief written decision denying the defendant’s motion for modification, stating that “[t]he stipulation for the dissolution presumed an earnings capacity for the defendant of $70,000 and a ‘safe harbor’ for the plaintiff of $25,000 per year. [The] [p]laintiff is not earning $25,000 [per year] at the present time and no evidence was presented to indicate an inability of an earnings capacity of $70,000. Motion for modification denied.” This appeal followed.

On appeal, the defendant claims that the court misconstrued the language of the separation agreement and found facts that were not in evidence when it denied his motion to modify alimony and support. We agree.

We begin by setting forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Angle v. Angle, 100 Conn. App. 763, 771-72, 920 A.2d 1018 (2007).

“When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.” (Internal quotation marks omitted.) Cushman v. Cushman, 93 Conn. App. 186, 191, 888 A.2d 156 (2006). “When the language is clear and unambiguous . . . the contract is to be given effect according to its terms. . . . [N]o room exists for construction.” (Citation omitted.) Greenburg v. Greenburg, 26 Conn. App. 591, 596, 602 A.2d 1056 (1992).

A court simply cannot “disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). “A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.” Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963); see Albrecht v. Albrecht, 19 Conn. App. 146, 151-53, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).

With these principles in mind, we turn to the court’s March 10, 2008 judgment denying the defendant’s motion to modify. From our review of the record, we conclude that it was improper for the court to consider the defendant’s earning capacity in denying the defendant’s motion to modify.

The plain language of the separation agreement states that the alimony is based on the presumed gross income of the parties and is modifiable as to amount. There is no mention of the parties’ earning capacities, and the language of the agreement cannot be interpreted to include capacity to earn as a component of the alimony calculation. To read such a provision into the parties’ separation agreement would be akin to creating a new agreement altogether.

Further, the court based its decision on the fact that “no evidence was presented to indicate an inability [by the defendant] of an earning capacity of $70,000,” yet the defendant, on the basis of the separation agreement, had no reason to believe that he was required to present evidence of anything but a substantial change in his actual income. To require the defendant to establish his earning capacity rather than show a substantial change in circumstances would demand both a departure from the plain meaning of the separation agreement and the well established guidelines for modification set forth by our Supreme Court. See Borkowski v. Borkowski, 228 Conn. 729, 735-38, 638 A.2d 1060 (1994) (holding that final order for alimony may be modified by trial court on showing of substantial change in circumstances of either party).

We conclude that the court improperly denied the defendant’s motion for modification of alimony and support on the basis of the defendant’s earning capacity rather than his presumed gross income. The defendant may be entitled to a modification of the alimony and support order on a showing of a substantial change in the circumstances of either party.

The judgment is reversed and the case is remanded for a new hearing on the defendant’s motion for modification of alimony and child support.

In this opinion the other judges concurred.

       Subsequent to the date of dissolution, the court changed the date of expiration of its order to June 30, 2013. The original date was incorrect due to a mutual mistake.

       Although the defendant’s sworn financial affidavit in 2000 showed an income of $43,000, the defendant testified that the parties settled on the $70,000 figure because he owns a real estate appraisal business and his salary fluctuates from year to year.

       At the time the separation agreement was drafted in 2000, two of the parties’ three children were minors. Since that time, one of those children has reached the age of majority. The parties disagree whether this was contemplated within the agreement or is cause for modification of the order.

       One of the issues raised by the defendant is that the court abused its discretion by failing to require the plaintiff to submit a sworn financial affidavit before the conclusion of the evidentiary hearing. We disagree. Pursuant to Practice Book § 25-30 (a), it is within the court’s broad discretion to render a judgment in the absence of the opposing party’s sworn statement. See Sachs v. Sachs, 22 Conn. App. 410, 417-18, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). There is no evidence that the defendant was prejudiced or surprised by the plaintiffs financial affidavit, which revealed more or less exactly what the plaintiff had represented during her testimony.

       The plaintiff asserts in her brief that this court should not disturb the trial court’s modification order under the law of the case doctrine. It is the plaintiffs claim that a previous judge who considered a motion to modify in this case held that the defendant had to demonstrate a “substantial change in earning capacity.” The law is clear that a trial judge may adopt the law as articulated by another judge in the same case under the doctrine of the “law of the case” but is not obligated to do so. See, e.g., Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002). Obviously, if the “law of the case” does not bind another trial judge considering the same issue, it certainly cannot bind an appellate court, whose function is to determine whether the trial court correctly applied the law. This argument is without merit.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support. . . may at any time thereafter be . . . modified . . . upon a showing of a substantial change in the circumstances of either party . . . .” Section 46b-86 thus provides for continuing jurisdiction over alimony awards, absent a provision in the decree to the contrary. Barnard. v. Barnard, 214 Conn. 99, 117 n.7, 570 A.2d 690 (1990). In this case, there is no such provision to the contrary.

       In Albrecht, this court stated that “[w]here the determination of the parties’ financial contributions is not controlled by the provisions of a separation agreement, the court may, in appropriate circumstances rely on the parties’ earning capacities.” Albrecht v. Albrecht, supra, 19 Conn. App. 153 n.3. In this case, the provisions of the parties’ separation agreement unambiguously state that the alimony and support order is based on presumed gross income. The determination of the parties’ financial contributions thus are controlled by the separation agreement, and, therefore, the trial court may not rely on the parties’ earning capacities.


text:
    STATE OF CONNECTICUT v. DEAN B. HOLLIDAY
    (AC 30482)
    Gruendel, Lavine and Dupont, Js.

      Argued September 23
    officially released November 17, 2009

      Dean B. Holliday, pro se, the appellant (defendant).

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

LAVINE, J.

The defendant, Dean B. Holliday, appeals from the judgment of the trial court denying his motion to correct an illegal sentence, which he filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence. He argues that his consecutive sentences for attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2) were not authorized by statute. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On April 25, 2002, following a jury trial, the defendant was found guilty of attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree and attempt to commit robbery in the second degree. He was later sentenced to twenty years incarceration for attempt to commit robbery in the first degree to be served consecutively to twenty years incarceration for conspiracy to commit robbery in the first degree. He also received a sentence of ten years incarceration for attempt to commit robbery in the second degree, although that sentence was to be served concurrently with one of the other sentences, for a total effective sentence of forty years incarceration. The defendant filed a direct appeal to this court, and we affirmed the judgment of the trial court, Wollenberg, J. See State v. Holliday, 85 Conn. App. 242, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

The defendant applied to the sentence review division (division) of the Superior Court for review of his sentence on July 10, 2002. On April 26, 2005, the division remanded the case to the trial court with an order to resentence the defendant to thirteen years incarceration on the conviction of attempt to commit robbery in the first degree to be served consecutively with twelve years incarceration for the conviction of conspiracy to commit robbery in the first degree. The sentence for the conviction of attempt to commit robbery in the second degree was not modified by the division, resulting in a total effective sentence of twenty-five years incarceration.

Following the denial of his motion for a new trial, the defendant filed a motion to correct an illegal sentence on June 19, 2008. After hearing argument on the motion, the court, D’Addabbo, J., denied the defendant’s motion. This appeal followed.

The defendant claims that the court improperly denied his motion to correct an illegal sentence because his consecutive sentences for attempt to commit robbery in the first degree in violation of §§ 53a-49 and 53a-134 (a) (2) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (2) were not authorized by statute. Specifically, he argues that (1) a court cannot impose consecutive sentences for attempt and conspiracy to commit the same crime, (2) the legislature could not have intended that attempt to commit robbery and conspiracy to commit robbery carry greater exposure than the actual commission of a robbery and (3) General Statutes § 53a-37 is unclear as to whether the legislature intended to authorize consecutive sentences for attempt and conspiracy. The defendant’s claims lack merit.

“We review claims that the court improperly denied the defendant’s motion to correct an illegal sentence under an abuse of discretion standard.” (Internal quotation marks omitted.) State v. Henderson, 93 Conn. App. 61, 66, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006). In the present case, however, the defendant’s claim presents a question of statutory interpretation over which our review is plenary. State v. Garner, 270 Conn. 458, 478, 853 A.2d 478 (2004).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534-35, 902 A.2d 1058 (2006).

I

The defendant’s first claim, which is that a court cannot impose consecutive sentences for attempt and conspiracy to commit the same crime, is in direct contradiction with the plain language of §§ 53a-37, 53a-48 and 53a-49. Section 53a-37 provides in relevant part: “When multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other

For the defendant’s claim to have legal merit, it must be the case that receiving multiple sentences for attempt and conspiracy violates his right to be free from double jeopardy. Attempt to commit robbery in the first degree in violation of § 53a-49 and conspiracy to commit robbery in the first degree in violation of § 53a-48 are separate and distinct offenses for the purposes of double jeopardy. “In determining whether a defendant has been placed in double jeopardy under the multiple punishments prong, we apply a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d (2009). “On appeal, the defendant bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).

The state does not dispute that the charges arose out of the same act or transaction. We will, therefore, consider only whether the charged crimes are the same offense. When the defendant engaged in only one act or transaction, “[t]he second prong [of the double jeopardy analysis] requires application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); that is, whether each offense as charged requires proof of a fact which the other does not.” State v. Licari, 115 Conn. App. 633, 650, 974 A.2d 46, cert. denied, 293 Conn. 916, 979 A.2d 492 (2009). Conspiracy to commit robbery in the first degree requires an agreement between two or more people, while attempt to commit robbery in the first degree does not. Attempt to commit robbery in the first degree requires a “substantial step” in furtherance of the crime, while conspiracy to commit first degree robbery does not. The two crimes, therefore, are separate and distinct for the purposes of double jeopardy. The defendant’s consecutive sentences for his conviction of attempt to commit robbery in the first degree and conspiracy to commit robbeiy in the first degree do not, as he contends, violate §§ 53a-37, 53a-48 and 53a-49.

II

The defendant next claims that the legislature could not have intended that attempt to commit robbery and conspiracy to commit robbery carry greater exposure than the actual commission of a robbery. Pursuant to the plain language of General Statutes § 53a-51, we disagree with the defendant’s assertion.

Section 53a-51 provides: “Attempt and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or is an object of the conspiracy, except that an attempt or conspiracy to commit a class A felony is a class B felony.” The crime underlying the defendant’s conviction of attempt and conspiracy was robbery in the first degree in violation of § 53a-134 (a) (2), which is a class B felony. The legislature clearly intended attempt and conspiracy to commit a class B felony to be punished the same as a class B felony or it would have noted otherwise, as it did with class A felonies. See State v. Trent, 182 Conn. 595, 598-602, 438 A.2d 796 (1981).

Here, the defendant both attempted to commit robbery in the first degree and conspired to commit robbery in the first degree. He was exposed to the maximum sentence available for each crime. According to § 53a-37, those sentences may run consecutively, exposing the defendant to a total effective sentence greater than that for a defendant who merely commits a class B felony. We therefore disagree with the defendant’s argument that his sentence exceeded the range authorized by statute.

Ill

The defendant’s final contention is that § 53a-37 is unclear as to whether the legislature intended to authorize consecutive sentences for attempt and conspiracy. We disagree.

When multiple sentences of imprisonment are imposed on a single defendant, § 53a-37 authorizes a court to impose those sentences either concurrently or consecutively. “Under ... § 53a-37, the trial court is authorized to impose sentences on multiple counts either to run concurrently with each other or to run consecutively to each other. The determination whether to impose concurrent or consecutive sentences is a matter within the sound discretion of the trial court.” State v. King, 249 Conn. 645, 688, 735 A.2d 267 (1999).

Here, the defendant was given multiple sentences, one for attempt to commit robbery in the first degree and one for conspiracy to commit robbery in the first degree. The court was authorized to impose those sentences either consecutively or concurrently. The court’s decision to impose those sentences consecutively was within the range authorized by statute, and, therefore, the sentences were not illegal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       For the facts underlying the conviction, see State v. Holliday, 85 Conn. App. 242, 244-46, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. RICHARD FOURTIN
    (AC 29899)
    Bishop, Lavine and Peters, Js.

      Argued September 9
    officially released November 17, 2009

      Robert E. Byron, special public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly and Timothy J. Sugrue, senior assistant state’s attorneys, for the appellee (state).
   Opinion

PETERS, J.

The dispositive issue in this criminal appeal is whether the state met its burden of proving that the defendant sexually assaulted a person who is “physically helpless.” General Statutes § 53a-65 (6) defines “physically helpless” as “a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” The complainant in this case is a young woman who suffers from multiple significant disabilities, including an inability to communicate verbally, although she is able to express herself in other ways. The defendant has appealed from the judgment of the trial court accepting a jury verdict finding him guilty of attempt to commit sexual assault in the second degree and sexual assault in the fourth degree. We reverse the judgment of the trial court.

In an amended substitute information dated January 16,2008, the state charged the defendant, Richard Four-tin, with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3), attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-71 (a) (3), and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (C). Each of these crimes requires proof beyond a reasonable doubt that the alleged victim was physically helpless as defined in § 53a-65 (6). The jury found the defendant guilty of the second and third charges. The defendant has appealed from the judgment of the trial court sentencing him to eleven years of imprisonment, execution suspended after six years, with twenty-five years of probation and ten years of sex offender registration.

The jury reasonably could have credited the testimony of the state’s witnesses to make the following findings of fact. In February, 2006, the twenty-five year old complainant lived in an apartment complex with her mother. The defendant, who was the boyfriend of the complainant’s mother, lived nearby. He frequently assisted the mother in caring for the complainant. The complainant got along with him.

The complainant is a woman with significant disabilities that affect the manner in which she interacts with others. She has cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board. To manifest her displeasure, she can kick, bite and scratch. The complainant can also vocalize her feelings by groaning or screeching.

In 2006, the complainant was attending an adult day care program for men and women who are physically, emotionally or mentally disabled. Deacon Raymond Chervenak was a staff member at the day care program with whom the complainant regularly communicated about her interest in sports. On February 23,2006, Cher-venak observed that the complainant looked “aggravated” and “scared.” In response to Chervenak’s inquiry, the complainant, by means of appropriate gestures and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the complainant repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and Chervenak’s body parts. A subsequent medical examination disclosed physical symptoms consistent with the complainant’s report that she had been sexually assaulted.

The defendant does not contest the sufficiency of this evidence to establish the fact that he had sexual contact with the complainant. On appeal, he contends instead, as he did at trial, that the state failed to prove, beyond a reasonable doubt, that the complainant’s physical and mental limitations at the time of the alleged assault rendered her “physically helpless” as that phrase is defined by § 53a-65 (6).

Our review of the defendant’s claim of evidentiary insufficiency is governed by a well established two-part test. “In reviewing the sufficiency of the evidence to support a criminal conviction we 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009).

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... 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’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [Finally], in responding to a claim of evidentiary insufficiency ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-53, 976 A.2d 678 (2009).

The only issue raised by the defendant’s appeal is whether the state adduced sufficient evidence at trial to prove that the complainant’s disabilities rendered her “physically helpless.” The state has not alleged that, at the time when the defendant assaulted the complainant, she was unconscious, intoxicated, asleep or for some other reason unable to communicate nonverbally, such as by kicking, scratching and screeching. The defendant maintains, therefore, that, even viewing the evidence at trial in favor of the state, the record does not establish beyond a reasonable doubt that the complainant was “physically unable to communicate [her] unwillingness to an act,” as § 53a-65 (6) requires. We agree with the defendant.

Our Supreme Court analyzed this statutory language in State v. Hufford, 205 Conn. 386, 395-99, 533 A.2d 866 (1987). In Hufford, the alleged victim of a sexual assault had been physically restrained by paramedics who were transporting her to a hospital for observation. While so restrained, and over her vociferous verbal protests, she allegedly was inappropriately touched by one of the paramedics. The court observed that, “[s]ince the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the [sexual contact].” Id., 398. Rejecting the state’s contention that “the complainant was physically helpless by virtue of her inability to move away from the defendant”; id.; the Hufford court held that the complainant’s own testimony that she repeatedly had told the defendant to stop touching her definitively contradicted the state’s assertion that she was unable to communicate her “unwillingness to an act.” (Internal quotation marks omitted.) Id., 399.

In light of Hujford, the crucial question for us to decide in this case is whether the state established that the complainant was physically unable to communicate her lack of consent to her assault by the defendant. In considering the significance of the evidence of the complainant’s mental and physical limitations, we note that the state elected not to proceed with a charge, pursuant to §§ 53a-71 (a) (2) and 53a-73a (a)(1)(B), that the defendant had engaged in sexual intercourse with another person who is “mentally defective to the extent that such other person is unable to consent to such sexual intercourse . . . .” The state’s choice of charges to pursue was, of course, a matter within its sole discretion. Nonetheless, to ascertain what the legislature meant by “physically helpless,” we may look for guidance to the provisions of other statutes relating to the same subject matter. See In re Ralph M., 211 Conn. 289, 304, 559 A.2d 179 (1989). At the least, this statutory juxtaposition demonstrates that proof of mental deficits does not establish “physical helplessness” if the alleged victim had the ability to communicate her lack of consent.

The state maintains that, in this case, it presented sufficient evidence to cast doubt on the complainant’s ability to communicate so as to make this issue a jury question. One of the state’s witnesses, James Bovieno, testified categorically, but without elaboration, that she was noncommunicative. Bovieno was the emergency room physician who examined the complainant for physical manifestations of a sexual assault. In addition, the defendant’s witness, Elenita Espina, an obstetrician gynecologist who provided care to the complainant, testified that she was not able to communicate with her. Evidence of these physicians’ inability to communicate with the complainant during a medical examination is not, however, probative of the complainant’s inability to communicate with the defendant, who had assisted in her care in her home for many years.

All the other witnesses testified that, sometimes with the aid of a communication board and at other times, with appropriate gestures, the complainant was able to make herself understood. Witnesses testified about the “temper” of the complainant and her concomitant ability to make her displeasure known through nonverbal means, using gestures, physical aggression and screeching and groaning sounds. Notably, the alleged sexual assault in this case came to light only because the complainant was able to communicate her distress to Chervenak. His testimony squarely contradicts the state’s assertion that the complainant was unable to transmit a message to the intended recipient with sufficient clarity to be called “communication.”

We recognize that all this evidence casts only an indirect light on the specific question that the jury had to resolve, which is whether the complainant could physically communicate her lack of consent to sexual intercourse at the time of the alleged assault, which is how § 53a-65 (6) defines the crime with which the defendant was charged. Given the uncontradicted evidence in the record that the complainant could communicate using various nonverbal methods, including screeching, biting, kicking and scratching, and the failure of the state to present any evidence probative of whether the complainant was unable to use these forms of communication at the time of the alleged assault, no reasonable jury could have concluded that she was physically helpless as defined by § 53a-65 (6).

Finally, the state relies on several out-of-state cases that, interpreting statutes similar to our own, concluded that the victims therein portrayed were physically helpless. We do not find these cases persuasive.

The state cites Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996), in which a fifty-three year old blind woman was found to be “physically helpless,” although she was able to “grunt, raise her hand, and shake her head from side to side.” Id., 384. In addition, however, the victim’s ability to perceive and to comprehend her surroundings was so limited that a police detective who attempted to interview the victim after the incident testified that she was unable to understand or to respond to most of her questions. The officer testified: “I think the only time I felt she really understood what I said is when I said, ‘Shirley do you want to go back to bed.’ ” Id. That description does not fit the present case.

The state also relies on State v. Atkins, 193 N.C. App. 200, 666 S.E.2d 809 (2008), review denied, 363 N.C. 130, 673 S.E.2d 364 (2009), which upheld a conviction for sexual assault of a woman, who, because of her advanced age of eighty-three and severe arthritis, would not have had the physical ability to escape her attacker. The relevant North Carolina statute describes a victim of a sexual assault as “physically helpless” if the victim is either “physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.” N.C. Gen. Stat. Ann. § 14-27.1 (3) (Lex-isNexis 2007). The court affirmed the defendant’s conviction on the basis of the jury’s finding that the victim was not able actively to oppose or to resist her attacker. Because our statute is different, that case does not provide support for the state’s position.

Finally, the state cites People v. Teicher, 52 N.Y.2d 638, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981). As described by our Supreme Court in Hufford, “[i]n Teicher, the defendant, a dentist, was convicted of sexually abusing a police decoy whom he had drugged. The Court of Appeals upheld the conviction over the defendant’s contention that the victim was not physically helpless because she was mentally aware although unable to control her body. Significantly, that court pointed out that the jury heard evidence that the victim was lifted to a standing position by the defendant, and that, under the circumstances, ‘there may be a decrease in the cerebral blood flow which could result in dizziness or even unconsciousness,’ and that chest compression could compound the result, thereby leaving the question of the state of the victim’s helplessness for the jury to decide.” State v. Hufford, supra, 205 Conn. 398. Even if we were persuaded that we should revisit our Supreme Court’s description of Teicher, which we are not, we note that, in the present case, there is no suggestion that the defendant in any manner impaired the complainant’s capacity to communicate with him.

We reverse the defendant’s conviction in this case because we are not persuaded that the state produced any credible evidence that the complainant was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault. Whatever other provision of our criminal code the defendant may have violated, the state did not prove that he committed the crimes for which he was put to trial.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (3) such other person is physically helpless . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes (Rev. to 2005) § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is . . . (C) physically helpless . . . .”

       General Statutes § 53a-65 (6) provides: “ ‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

       Although the defendant was arrested in 2006, his trial was postponed because he was found incompetent to stand trial at that time. The trial commenced two years later, when he was found to have been restored to competency after a period of commitment to Connecticut Valley Hospital.

       She pointed to her mouth and then to Chervenak’s crotch, and to her chest area and then to her pubic area.

       In addition, in the defendant’s appellate brief, he maintained that the court improperly relied on the doctrine of constancy of accusation in admitting the testimony of Chervenalc and Hernandez into evidence. At oral argument in this court, however, the defendant abandoned this unpreserved claim of error. We therefore need not address its merits.

       We decline the state’s invitation to limit Hufford’s holding because, in the state’s view, our Supreme Court, misread a New York case that it cited in reaching its decision.

       Espina did not testify about the extent of her relationship or familiarity with the complainant.

       No evidence was offered at trial to establish whether the complainant had access to a communication board at the time of the alleged assault.

       The state questions the complainant’s communication skills because, in the courtroom, she could testily only by using adaptive equipment. Widely viewed television programs featuring Stephen Hawking, the celebrated author of A Brief History of Time, demonstrate that someone cannot be described as noncommunicative even though he suffers from a disease that requires him to communicate by the use of a computer system.


author: PER CURIAM.

text:
    DAVE ANTHONY HALL v. COMMISSIONER OF CORRECTION
    (AC 30213)
    Flynn, C. J., and Harper and Dupont, Js.
    Argued October 21
    officially released November 17, 2009

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Brenda Hans, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Dave Anthony Hall, appeals following the habeas court’s denial of his petition for certification to appeal from that court’s judgment denying his amended petition for a writ of habeas coipus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly failed to conclude that his trial counsel had rendered ineffective assistance.

Following our review of the record and briefs, and after considering the oral arguments of the parties, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying his petition because he has not shown that the issues involved in his appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.