author: Cretella, J. Freedman, J.,

text:
    Alan J. Koepke v. Zoning Board of Appeals of the Town of Coventry et al.
    (8672)
    Heiman, Freedman and Cretella, Js.
    Argued November 6, 1992 —
    decision released February 23, 1993

      Mark K. Branse, with whom was Matthew J. Willis, for the appellant (defendant Susan Oygard).

      Duncan J. Forsyth, for the appellee (plaintiff).

      Abbot B. Schwebel, for the named defendant.
   Cretella, J.

This case is before us on remand from the Supreme Court. We previously considered the matter in Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991), rev’d, 223 Conn. 171, 610 A.2d 1301 (1992), in which we affirmed the trial court’s determination that the defendant Coventry zoning board of appeals lacked jurisdiction'to consider an appeal by the defendant abutting property owner, Susan Oygard, with respect to the erection of a radio antenna on property owned by the plaintiff. We concluded that the notice of the public hearing on the issue before the board of appeals was inadequate and, thus, insufficient to confer jurisdiction on the board of appeals to act on Oygard’s appeal. Id., 619. Because of our disposition of the notice issue, we did not reach Oygard’s other claims. The Supreme Court granted certification and affirmed our determination with respect to the notice issue; Koepke v. Zoning Board of Appeals, 223 Conn. 171, 176, 610 A.2d 1301 (1992), but remanded the case to this court for consideration of whether Oygard’s appeal to the board of appeals was timely. Id., 178. We conclude that the appeal to the board of appeals was not timely and therefore affirm the trial court’s judgment that the board of appeals was without jurisdiction to hear her appeal.

The facts of this case are fully reported in our previous opinion; Koepke v. Zoning Board of Appeals, supra, 25 Conn. App. 611; but those facts necessary to the resolution of the issue presently before us may be summarized as follows. The plaintiff desires to build a 150 foot radio tower on property adjacent to property owned by Oygard. The plaintiff discussed the project with the Coventry zoning officer and notice of the plaintiffs proposed construction was subsequently sent to Oygard, among others, on June 25,1986. No objections to the proposal were received, and the plaintiff submitted an application for a zoning permit. The permit was granted on July 11,1986. After the permit was issued, the Coventry zoning officer contacted the plaintiff and requested that he make a few minor alterations to the plans for the proposed tower and submit a new plan to the town. The plaintiff made the requested changes and submitted a new application, together with a revised plot plan, to the zoning officer. On August 7, 1986, the plaintiff, without payment of an additional fee, was issued a new permit bearing the same number as the previous permit. The plaintiff contemporaneously received a letter from the zoning officer stating that the July permit was revoked.

On August 12,1986, Oygard appealed to the zoning board challenging the validity of the August 7, 1986 permit. After a public hearing, the board of appeals sustained Oygard’s appeal, and the plaintiff appealed the board’s decision to the trial court.

On remand, we are presented with the narrow issue of whether the trial court was correct in determining that Oygard’s appeal to the board of appeals from actions by the Coventry zoning enforcement officer was timely taken. General Statutes § 8-7 provides in pertinent part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by an officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days. . . .” The board of appeals has not adopted a rule regarding the time in which to appeal and, thus, any appeal must be filed within thirty days pursuant to § 8-7.

Although Oygard agrees that the issue presently before us is limited, she raises three separate theories to support her claim that her appeal was timely. Her first contention is grounded in the language used by the Supreme Court in remanding the case. The Supreme Court stated that “[i]f Oygard’s appeal did not comply with the thirty day provision of § 8-7, lateness may have deprived the board of subject matter jurisdiction to consider the merits of her appeal.” (Emphasis added.) Koepke v. Zoning Board of Appeals, supra, 223 Conn. 178. Oygard contends that “[t]he Supreme Court, by using the word ‘may,’ is indicating that lateness alone might not deprive the Board of jurisdiction.” We do not agree. Oygard argues that although § 8-7 uses the word “shall” in prescribing the time limit to appeal, this does not automatically create a mandatory duly. We conclude that the thirty day limit of § 8-7 is mandatory in nature and, thus, any appeal not taken within thirty days is invalid.

“ ‘In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or to matter of convenience.’ ” Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273, 610 A.2d 584 (1992). “Provisions relating to matters of substance are mandatory, whereas provisions designed to secure order, system and dispatch in the proceedings [are] generally held to be directory . . . .” (Internal quotation marks omitted.) Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 66-67, 592 A.2d 964 (1991), aff’d, 222 Conn. 269, 610 A.2d 584 (1992). “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Provisions in statutes fixing a time within which to take an appeal are designed, in the public interest, to secure a speedy determination of the issue involved. . . . Time is not merely a procedural limitation but is an essential part of the remedy. . . . Such provisions are mandatory, and, if not complied with, render the appeal subject to abatement.” (Citations omitted; internal quotation marks omitted.) Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). We conclude that the thirty day time limit is mandatory in nature. The thirty day time limit is analogous to a statute of limitation and, therefore, Oygard was required to pursue her appeal within thirty days or such right would lapse.

Oygard next asserts that even if the thirty day period to appeal is mandatory, the statute does not indicate from what event the thirty day period begins to run. She offers two different theories as to what event triggers the thirty day period, and concludes that under either theory her appeal was timely. Oygard’s first theory is that the thirty day period did not commence from July 11, 1986, when the zoning enforcement officer issued the zoning permit, but rather from August 7, 1986, when a substitute permit was issued. Her second theory is that, notwithstanding the thirty day appeal period, the thirty days cannot commence to run until an aggrieved person has actual or constructive notice that a permit has been issued.

In its memorandum of decision, the trial court made the following determinations: (1) the circumstances that led to the August 7 permit did not constitute a revocation of the July 11 permit; (2) the alterations to the plot plan that gave rise to the August 7 permit were, at best, minor modifications that did not alter the purpose or the intent of the original permit; and (3) notwithstanding the zoning enforcement officer’s attempt to revoke the original permit as evidenced by his letter to the plaintiff of August 7,1986, the zoning enforcement officer had no authority to revoke the original permit.

We will not disturb the factual findings of the trial court unless they are clearly erroneous. Practice Book § 4061; Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992). Additionally, “where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

We conclude that the trial court’s determination that the thirty day period began to run from the issuance of the original permit on July 11, and not from the modification of that permit on August 7, is legally and logically correct and is amply supported by the facts in the record. The trial court, after examining the record, made certain findings of fact as to whether the August 7 permit constituted a new permit or a mere modification of the original permit, and we cannot find any basis in the record to suggest that this finding was clearly erroneous. On the basis of these factual determinations, we cannot say that the trial court’s ultimate conclusion that the thirty day period began to run from July 11 is legally or logically incorrect. We therefore affirm the trial court’s determination that the time to appeal began to run on the initial issuance of the permit on July 11, 1986.

Although we affirm the trial court’s determination that the time to appeal began to run as of July 11,1986, we briefly address Oygard’s contention that the thirty day period did not commence until she received actual or constructive notice that a permit had been issued. While this argument has some superficial appeal, upon further analysis, we must reject this claim also. We note that statutes specifically provide for the publication of notice for many of the various functions of zoning authorities such as the granting of a variance or special permit, or approval of a subdivision, among others. The statutes do not provide for any form of notice to be given in connection with ministerial tasks such as the issuing of the permit at issue here. The approval of any type of plan by a zoning enforcement officer indicating that all of the pertinent zoning regulations have been complied with is a prerequisite to the obtaining of a building permit.* * The plaintiff could not have obtained the building permit without first exhibiting to the building department some document to indicate that the proposed construction met the zoning requirements.

Oygard’s application to the board of appeals alleged that the plaintiff should not be permitted to construct the subject radio antenna because the property is in a residential zone and the antenna would violate town height regulations. A reading of § 6.6 of the Coventry zoning regulations, however, supports the finding of the trial court that a radio antenna not occupying more than 10 percent of the ground area of the building is exempt from the height limitations of the regulations. Accordingly, the zoning permit was properly issued by the zoning enforcement officer, and, once issued, the thirty day appeal period began to run. While it is true that an aggrieved person has the right to take issue with the granting of a zoning permit, the legislature has not required that notice of the granting of a permit be given nor would it seem practical to give such notice for the literally thousands of such zoning and building permits that are issued on an almost daily basis across the state. We therefore conclude that Oygard’s time to appeal began to run at the time of the initial issuance of the permit; whether she received actual or constructive notice is irrelevant.

Finally, we note that Oygard did receive actual notice of the plaintiffs proposed construction by letter dated June 25, 1986. This letter invited neighborhood residents to submit comments and questions concerning the plaintiffs application for a permit to construct a radio tower. This notice was sent by the zoning officer, although there is no requirement that such notice be sent. Oygard claims, however, that this notice misled her into delaying the filing of her appeal until August 12, 1986. If, in fact, the notice did confuse Oygard or misguide her into failing to act in a timely fashion, her remedy, if any, would not lie against the plaintiff.

The judgment is affirmed.

In this opinion Heiman, J., concurred.

Freedman, J.,

dissenting. Because I believe that Susan Oygard filed her appeal to the Coventry zoning board of appeals (board) in a timely manner, I respectfully dissent from the majority’s conclusion that the board lacked jurisdiction to consider Oygard’s appeal.

On August 12, 1986, Oygard appealed to the board from the August 7,1986 decision of the zoning enforcement officer. This appeal was well within the thirty day time limit set forth in General Statutes § 8-7. Consequently, there is no question that the board had subject matter jurisdiction to consider the merits of the appeal.

Because the zoning officer revoked the permit issued on July 11, *1986, that permit cannot provide the relevant starting point for the statutory appeal period. Once revoked, the permit no longer provided the legal authority by which the plaintiff undertook to construct the challenged radio tower.

The majority, however, agrees with the trial court’s conclusion that Oygard’s appeal was untimely because the thirty day period began to run at the time of the issuance of the permit on July 11,1986. The trial court based its conclusion on its findings that “[t]he circumstances . . . that led to [the] plaintiff’s filing a new application [on August 7] did not constitute a revocation of the July 11,1986 permit” and “[t]he alterations to the [plot] plan [that gave rise to the August 7 permit] were, at best, minor modifications that did not alter the purpose and intent of the [original] permit,” and its determination that the zoning enforcement officer had no authority to revoke the original permit. In my view, however, these findings and conclusions are neither supported by the record nor legally and logically correct. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

It is undisputed that on August 7, 1986, the zoning enforcement officer did, in fact, issue a decision revoking the permit issued on July 11. Because of the concerns of the zoning officer regarding the July 11 permit, the plaintiff filed a new application, which included a new plot plan. The plaintiff was then issued a new permit based on the plan in this new application.

The fact that the alterations to the plot plan that gave rise to the revocation of the original permit and the subsequent issuance of the August 7 permit may have been minor, in terms of the amount of work required, is not relevant. At the hearing before the board, the plaintiff explained that “my original permit was revoked for the reason that . . . there was some discrepancy in the size of the structure. . . . [The zoning enforcement officer] and I . . . looked at the site drawings, and came up with a building structure, footing and foundation arrangement that would be in compliance with the zoning codes which I believe is [section] 6.6 — this 10% rule. This caused an increase in usage of like 40 yards of concrete at a cost of about $2,000 — to bring my structure within compliance of the zoning regulations. ” (Emphasis added.) The zoning enforcement officer, likewise, explained that “[b]ecause [the plot plan submitted with the original application] had been modified [by the plaintiff] without zoning approval and was no longer in conformance with the zoning regulations, I revoked the permit.” Although the zoning officer viewed the required modification as “minor,” in terms of the amount of work required to be done in order to bring the plan into compliance with the Coventry zoning regulations, there is no doubt that the difference between the two permits centered on the issue of regulatory compliance. A subsequent application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect. Consequently, the record does not support the trial court’s findings that the circumstances that led to the filing of a new application did not constitute a revocation of the July 11 permit, that the alterations to the plot plan that gave rise to the August 7 permit were, at best, minor modifications that did not alter the purpose or the intent of the original permit, and that therefore the thirty day period commenced on July 11,1986. Those findings are, thus, clearly erroneous. Id.

In addition, whether the decision of the zoning enforcement officer to revoke the July 11 permit was correct and whether that decision was within the authority of the zoning officer were matters statutorily committed to the determination of the board upon appeal by the plaintiff. Caserta v. Zoning Board of Appeals, 219 Conn. 352, 359, 593 A.2d 118 (1991); see General Statutes § 8-6. Such appeal not having been taken and such issue not having been submitted to the board for its decision in the context of the appellant’s appeal, it was not for the trial court to make such a determination. See Zachs v. Zoning Board of Appeals, 218 Conn. 324, 328-29, 589 A.2d 351 (1991). Moreover, having submitted a new permit application and having obtained approval from the zoning enforcement officer for a new permit based on a different plot plan for the same property, the plaintiff waived irrevocably whatever benefit he may have derived from the zoning enforcement officer’s earlier approval of the first permit application. Gagnon v. Planning Commission, 222 Conn. 294, 298-99, 608 A.2d 1181 (1992). Accordingly, the only point of reference for determining the timeliness of the appeal that finds support in the record, as it presently stands, is August 7, 1986.

Because I conclude that Oygard’s appeal of August 12,1986, from the August 7,1986 decision of the zoning enforcement officer to grant a permit to the plaintiff was timely, I believe that the case should be remanded to the trial court with direction to remand the matter to the board to render a new decision after proper notice and hearing.

       General Statutes § 8-3c (b) provides in pertinent part: “Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to the person who requested or applied for a special permit or special exception .... In any case in which such notice is not published within such fifteen-day period, the person who requested or applied for such special permit or special exception may provide for the publication of such notice within ten days thereafter. Such permit or exception shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk . . . and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d.”
      Moreover, General Statutes § 8-3d provides in pertinent part: “No variance, special permit or special exception granted . . . shall be effective until a copy thereof, certified by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, containing a description of the premises to which it relates and specifying the nature of such variance, special permit, special exception or special exemption, including the zoning bylaw, ordinance or regulation which is varied in its application or to which a special exception or special exemption is granted, and stating the name of the owner of record, is recorded in the land records of the town in which such premises are located. . . .”

       General Statutes § 8-26 provides in pertinent part: “All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval, whether or not shown on an existing map or plan or whether or not conveyances have been made of any of the property included in such subdivisions or resubdivisions, shall be submitted to the commission with an application in the form to be prescribed by it. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person applying to the commission under this section . . . within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who made such application may provide for the publication of such notice within ten days thereafter. Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. . . .”

       “A permit for the construction of a building granted by a municipal officer or board, which is required by statute or municipal ordinance of any person who proposes to erect a building within the limits of a municipality.” Ballentine’s Law Dictionary (3d Ed.).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Jorge Jimenez
    (11272)
    Foti, Lavery and Landau, Js.

      Argued December 14, 1992 —
    decision released February 23, 1993

      Joseph G. Bruckman, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from his conviction, after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He claims that the trial court improperly instructed the jury as to the “initial aggressor” exception to the law of self-defense in light of the evidentiary basis for the claim of self-defense he raised. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 18, 1984, Thomas Comacho, the victim, lived in a third floor apartment at 596 Pembroke Street in Bridgeport with his girl friend, Suma Pagan, and their child. The defendant lived in a second floor apartment with his girl friend, Sandra Pagan, Suma’s sister. The defendant and Thomas Comacho had not been getting along for approximately two months. As Comacho was leaving the building and walking by the second floor, the defendant came out of his apartment and into the hallway holding a sawed-off shotgun. Comacho raised his hands and asked the defendant not to shoot him. The defendant then made a threatening remark and shot Comacho in the left leg. Comacho fell to the floor and lost consciousness. As a result of his wound, he spent several months in the hospital and underwent five operations on his left leg, which is now two and one-half inches shorter than his right leg.

On the night of the shooting, Thomas Comacho’s brother, Israel Comacho, was standing outside the apartment building at 596 Pembroke Street when he heard a shot. Israel pulled out a gun, ran up the front stairs of the building, ran after the defendant and fired at him. The defendant, in return, shot Israel Comacho in the back of the neck.

The defendant did not deny shooting both Thomas and Israel Comacho. He did, however, raise a claim of self-defense. As part of this claim, the defendant testified that two days before the shooting, on August 16, the Comacho brothers had challenged him to come out of his apartment; when he did, they fired six shots in his direction. The defendant testified that he believed that the Comachos were trying to kill him. He stated that on the day after they shot at him, the brothers, who were working on a car in front of the apartment building, “checked him out” and made a move toward the interior of the car. The defendant testified that he was frightened. He obtained two sawed-off shotguns after Sandra Pagan told him that her sister had said that the Comachos had bought a box of bullets and were going to kill him. The Comacho brothers both testified and denied all of the defendant’s allegations about the August 16 shooting.

The issue in this appeal is not whether there was sufficient evidence to support a jury instruction on self-defense. The sole issue is whether the trial court improperly instructed the jury as to the “initial aggressor” exception to General Statutes § 53a-19 (a), which is contained in General Statutes § 53a-19 (c).

The defendant does not contend that the trial court improperly defined the law of self-defense contained in § 53a-19 (a). The defendant also does not dispute that the court properly concluded its instruction on self-defense by referring to the state’s burden of disproving the defense beyond a reasonable doubt, the reasonableness of the defendant’s belief as a key inquiry for the jury, and the requirement that the jury separately apply the principles of self-defense to the defendant’s actions toward each of the alleged victims. Rather, the defendant claims that the court, after defining the relevant statutory terms, improperly instructed the jury as to General Statutes § 53a-19 (c) as follows: “On the law of self-defense, the law recognizes certain exceptions to the justification of the use of physical force as self-defense, and in this case specifically, the use of deadly physical force. Those were earlier referred to as subsections (b) and (c) of § 53a-19.

“Subsection (c) insofar as is applicable to this case states as follows, that, again, ‘Notwithstanding the provisions of subsection (a), that a person is not justified in using physical force when he [meaning the defendant] was the aggressor.’ This exception presents a question of fact for you to determine. Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense. ” (Emphasis added.)

The defendant duly noted his sole exception to the charge, stating: “My exception regarding the charge of self-defense, Your Honor defined for the jury the initial aggressor as the first one to use physical force. Mr. Eisenman and I have some sort of feud, he sees me pull my coat back, and he pulls out a gun and he shoots me in self-defense. He is the initial aggressor, he is the first one to use force, and that is why the way Your Honor defined that term, and it’s more than the person — it’s not the first one who, you know, actually shoots a gun; it’s the initial aggressor is the first one who causes the problem which gives rise to the incident.”

The defendant also filed a motion for a new trial in which he claimed that the court’s instructions on the initial aggressor exception under General Statutes § 53a-19 (c) (2) were incorrect and in conflict with § 53a-19 (a) (1) and (2). He claimed that the court’s instructions violated his rights to present a defense and to due process of law secured by the fifth, sixth and fourteenth amendments to the United States constitution. The defendant took an exception to the trial court’s denial of this motion.

There is no question that “[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be ‘critically dissected in a microscopic search for possible error.’ State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991).” State v. Hester, 28 Conn. App. 469, 472, 612 A.2d 120 (1992).

General Statutes § 53a-19 (a) provides in .part that, subject to the exceptions in subsections (b) and (c), “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force . . . which he reasonably believes to be necessary for such purpose . . . .” “[A] person may not use ‘deadly physical force’ unless he reasonably believes that the other person is either ‘using or about to use deadly physical force’ or is ‘inflicting or about to inflict great bodily harm.’ ” State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984). General Statutes § 53a-19 (c) provides an exception to this rule, as follows: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor . . . .” “[B]y the terms of the statute, the use of force in self-defense ... is never justified where the conditions set forth in [§ 53a-19 (c)] are found to exist.” State v. Silveira, 198 Conn. 454, 469, 503 A.2d 599 (1986). “Whether the defendant did, in fact, act with such intent and whether he was the initial aggressor are critical circumstances in the jury’s evaluation of his claim of self-defense.” State v. Corchado, supra, 664.

The function of the charge is to assist the jury in correctly applying the law to the facts that it finds are established. State v. Havican, 213 Conn. 593, 603, 569 A.2d 1089 (1990). We conclude that, when read as a whole, the trial court’s instruction on self-defense performed this function. The charge was in accordance with General Statutes § 53a-19 and presented the case to the jury in a manner so that no injustice resulted.

The defendant states that the “focal point of the defense as to the charges pertaining to Thomas Comacho was the reasonableness of the defendant's belief as to what Thomas was about to do at the time the defendant shot him.” (Emphasis in original.) This was precisely the “focal point” of the trial court’s instructions to the jury.

The court began its instruction on self-defense by stating: ‘ ‘ Self-defense is a means by which the law justifies the use of force which would otherwise be illegal. Once self-defense is raised in a case, the state must disprove the defense beyond a reasonable doubt. A person is justified in the use of reasonable physical force upon another when he reasonably believes that stock force is necessary to protect himself or another person from the use of or the impending use of force by another. Self-defense is a legal defense to the use of force which would otherwise be criminal.” (Emphasis added.)

The court then read to the jury the statutory definition of self-defense contained in § 53a-19 (a). After doing so, the court said: “In this case, we are talking about the use of deadly force by the defendant. It is therefore the last portion of this statute on self-defense that is implicated in this case, and therefore I am going to read it to you again. ‘Except that deadly force may not be used unless the actor reasonable believes that such person is using or about to use deadly physical force, or inflicting or about to inflict great bodily harm.’ ” The court thereafter defined the terms “deadly physical force,” “using,” and “about to use.”

The court continued to focus the jury’s attention on the defendant’s reasonable belief with respect to Thomas Comacho, stating: “In this case, there is no evidence that at the time of the shooting that Thomas Comacho actually used any deadly physical force upon the defendant. So the issue as to Thomas Comacho is whether the defendant reasonably believed that Thomas Comacho was about to use deadly physical force upon him, or about to inflict great bodily harm upon him. If the state disproves that belief, and its reason is beyond a reasonable doubt, you would reject the defense as to self-defense as to Thomas Comacho.”

After defining the exceptions to § 53a-19 (a) contained in 53a-19 (b) and (c), the court continued to stress that “[t]he statute focuses on the person claiming self-defense. It focuses on what he reasonably believes under the circumstances, and presents a question of fact for the jury.”

The defendant argues that by defining “the aggressor” as “the first to use physical force,” the trial court foreclosed his right to have the jury pass on his self-defense claim under § 53a-19, since “in this case there was certainly no dispute that the defendant was the first to use physical force.” We do not agree. Our review of the record shows that the trial court’s instruction to the jury on self-defense, read as a whole, was correct in the law, adapted to the issues and sufficient to guide the jury. See State v. Shaw, 185 Conn. 372, 383, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). We believe the court’s instructions made it clear that even though the defendant was the first to use physical force on the day he shot Thomas Comacho, it was up to the jury to determine if, in fact, he was the initial aggressor.

The jury had before it evidence in the form of the defendant’s allegations that the victim and his brother had summoned the defendant from his apartment and shot at him on August 16. Because the court’s instruction did not limit to August 18, the day the victim was shot, the period during which the jury could determine who was the initial aggressor, the jury’s function was not thwarted by the challenged instruction. Had the jury believed the defendant’s allegations regarding the Comachos’ shooting at him, it might properly have determined that he was not the initial aggressor. Moreover, the court’s instructions also would have permitted the jury to find that the defendant was justified in using deadly force on August 18, if they determined that he reasonably believed Thomas Comacho was about to use deadly physical force or to inflict great bodily harm, in view of the shooting that had occurred two days earlier.

Considering the trial court’s charge as a whole, we conclude that it was not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of the first two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) and the fourth count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). We note that the judgment file erroneously entitled this fourth count as “attempted” assault in the first degree.

       The jury acquitted the defendant of both counts involving the shooting of Israel Comacho.

       General Statutes § 53a-19 (a) provides: “use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       General Statutes § 53a-19 (c) provides: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       We note that in his closing argument to the jury, the defendant’s counsel stated: “Initial aggressor doesn’t mean I call you a name, you take out a gun, and I shoot you, and I was the initial aggressor. It has to be someone who does something physical, violence. If I punch you, you take out a gun and then I shoot you, I have been the aggressor in that case. That is what the law is, if it’s appropriate. The judge will instruct you on that.”

       The court stated: “In other words, what is important is what the defendant reasonably believed under the circumstances in this case. The test for the degree of force in self-defense is both a subjective and an objective test, meaning it has some objective aspects or, excuse me, it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from the subjective standpoint; that is what the defendant reasonably believed under the circumstances presented in this case, on the basis of what the defendant perceived them to be.
      “Section 53a-19 (a) requires, however, that the defendant’s belief must be found to be reasonable, and not irrational or unreasonable under the circumstances as he was presented with them. That is, would a reasonable person in the defendant’s circumstances have reached that belief? That is the objective aspect of the test. So it is both a question of what his belief was, and whether it was a reasonable belief.
      “In this case, if you find proven beyond a reasonable doubt that either victim was not using or about to use deadly physical force or inflict great bodily harm upon the defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or about to inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon the victim. And you would, under those conditions, reject the defense of self-defense.”
      In concluding its instruction on self-defense, the court cautioned the jury to “[rjemember . . . that the burden remains on the state to disprove the defense of self-defense beyond a reasonable doubt, and to disprove beyond a reasonable doubt the defendant’s belief it was reasonable.”

       General Statutes § 53a-3 (5) defines deadly physical force as “physical force which can be reasonably expected to cause death or serious physical injury.” The threat of serious physical injury and the threat of great bodily harm may justify the use of deadly force. State v. Roman, 25 Conn. App. 734, 737-38, 596 A.2d 930 (1991). However, “[tjhe use of deadly force must ultimately be reasonable in the circumstances.” State v. Tyson, 23 Conn. App. 28, 37, 579 A.2d 1083 (1990).


author: Schaller, J.

text:
    State of Connecticut v. Edward C. Dennis
    (11010 through 11024)
    (11158)
    Lavery, Freedman and Schaller, Js.
    Argued November 4, 1992 —
    decision released February 23, 1993

      G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgments of conviction following his guilty pleas entered into pursuant to the Alford doctrine. The defendant claims that he is entitled to withdraw his pleas because (1) the sentence and plea agreement were illegal, (2) the sentence and plea agreement were confused and ambiguous, and (3) the trial court misinformed the defendant as to the range of penalties he would face if sentenced independently of the plea agreement. We reverse the judgment in part and remand the case for resentencing.

The following facts are not in dispute. The state charged the defendant with forty-five counts of criminal activity (thirty-six felonies and nine misdemeanors). The counts included varying degrees of robbery, burglary, larceny, assault, risk of injury to a child, reckless endangerment, and criminal mischief. The incidents giving rise to the charges allegedly occurred in the spring of 1987 in various areas of Hartford county.

The prosecution and the defendant entered into plea negotiations. By the filing of substitute informations, the state offered to abandon prosecution of thirty of the forty-five charges but add two new charges in exchange for the defendant’s pleas of guilty. The parties submitted their proposed plea agreement to the trial court when they appeared in court on May 19, 1988. The defendant expressed his willingness to accept the state’s offer by pleading guilty under the Alford doctrine. Before accepting the pleas, the trial court canvassed the defendant pursuant to Practice Book § 711.

During the canvass, the trial court explained to the defendant the maximum possible sentence for each of the seventeen charges contained in the substitute information. Regarding the charge of burglary in the first degree, the court failed to recite the five year mandatory minimum sentence provided in General Statutes § 53a-101. The court also miscalculated the cumulative effect of all seventeen charges as potentially resulting in a sentence of 150 years of incarceration and $90,000 in fines. The correct figures were 155 years of incarceration and $100,000 in fines.

The defendant assured the court that he understood the terms and implications of the agreement and that he voluntarily accepted them. See Practice Book § 712. With that accomplished, the court accepted his pleas, found the defendant guilty, and scheduled a sentencing hearing. The sentencing hearing took place on June 2, 1988, at which time the court sentenced the defendant in accordance with the plea agreement.

Under the agreement, three of the seventeen charges and their accompanying sentences (the primary sentences) formed the basis of the penalty. The first charge, robbery in the first degree, carried a sentence of twenty years of incarceration, suspended after ten years with five years of probation. The second charge, burglary in the third degree, carried a sentence of five years of incarceration, consecutive to the first charge. The third charge, robbery in the second degree, involved ten years of incarceration, suspended after five years. The sentence on the third charge was stated to be consecutive to the first charge but the court did not expressly state that it was consecutive to the second one. Pursuant to the agreement, the sentences on the remaining fourteen charges against the defendant ran concurrently, in practical effect having no bearing on the defendant’s period of incarceration and subsequent probation. Nearly four years later, the defendant filed this appeal.

I

The defendant asserts that for several reasons his sentencing was illegal and violated his right to due process. He claims further that the asserted constitutional defects entitle him to withdraw his guilty pleas. We disagree.

At the outset, we note that the defendant did not preserve any of the claims that he now asserts in this appeal. Recognizingthis deficiency, the defendant seeks appellate review via the Evans-Golding bypass. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We therefore review each of the defendant’s claims within the framework that our Supreme Court established in State v. Golding, supra. “[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.) Id., 239-40. In this case, the defendant’s claims do not pass muster under the third prong, because the alleged constitutional violations do not clearly exist and did not deprive the defendant of his right to due process.

“The United States Supreme Court has held that in order for the acceptance of a defendant's plea of guilty to comport with due process, the plea must be voluntarily and knowingly entered.” State v. Nelson, 221 Conn. 635, 639, 605 A.2d 1381 (1992); Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); see also State v. Spence, 29 Conn. App. 359, 363, 614 A.2d 864 (1992). “The essence of due process is fundamental fairness. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984), cert. denied, 471 U.S. 1068, 105 S. Ct. 2146, 85 L. Ed. 2d 503 (1985). Due process is an element that, when absent, produces [a reaction] which is shocking to the universal sense of justice. United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973).” (Internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 479-80, 613 A.2d 720 (1992). Additionally, in several different contexts our courts have required a showing of prejudice to establish a deprivation of due process.

Against this backdrop, we turn to the defendant’s claims in this appeal. The defendant’s first claim is that the sentence and plea agreement are illegal and, therefore, null and void. The gravamen of this contention is that the sentence accompanying the third charge is improper because it failed to provide a period of probation or conditional discharge in accordance with General Statutes § 53a-28. The defendant has not articulated any reason, however, why the allegedly illegal sentence is “fundamentally unfair” or “shocking to the universal sense of justice.” See United States v. Russell, supra. As such, we conclude that, irrespective of the alleged deficiency, the defendant has failed to demonstrate a clear deprivation of a constitutional right, i.e., his right to due process.

Furthermore, the noncompliance with § 52a-28 by the trial court has minimal efféct under the circumstances of this particular case. Although the trial court did fail to satisfy the requirements of § 53a-28 as to one of the primary sentences, the fact that the total effective sentence did include a five year period of probation is significant. In fact, the trial court could not have imposed an additional period of probation, since in this state the maximum possible probationary period is five years. General Statutes § 53a-29.* * Thus, viewing the cumulative effect of the sentences imposed, we conclude that the action of the trial court in failing to annex a period of probation to the crime of robbery in the second degree does not constitute a due process violation.

The defendant relies heavily on State v. Madera, 198 Conn. 92, 503 A.2d 136 (1985). There, the defendant pleaded nolo contendere to the crime of arson, conditional on his right to take an appeal. Id., 97-99. The statute under which the defendant entered his plea did not, however, authorize an appeal as to those issues raised by the defendant. Id. Accordingly, the court declined to review his claims. The court held that “[bjecause the defendant is foreclosed from raising the reserved issues before this court, and because the plea was given in reliance on his ability to pursue his appellate remedy, the judgment of conviction must be set aside and the matter remanded to the Superior Court for further proceedings.” Id., 108.

The defendant argues, by analogy to State v. Madera, supra, that because his sentence is not in compliance with § 53a-28, his acceptance of the sentence is unenforceable. Unlike the defendant in State v. Madera, however, the defendant in this case has not relied to his detriment on the trial court’s asserted noncompliance with the applicable statute. This difference is particularly significant since the defendant seeks review under State v. Golding, supra. The alleged noncompliance with § 53a-28 on the part of the trial court did not result in any unfairness to the defendant nor did it render the defendant’s plea unknowing and involuntary. Thus, we do not discern a deprivation of the defendant’s right to due process.

The defendant’s second claim is that the third primary sentence was confused, ambiguous and illegal. This claim is predicated on the fact that the third primary sentence expressly stated that it ran consecutively to the first one, but not the second. As such, the defendant claims that he could not decipher whether his period of unsuspended incarceration would be for fifteen or twenty years. Although the ambiguity is troubling, again, we find this claim insufficient to prevail under State v. Golding, supra.

Even accepting the defendant’s claim that the interrelationship of the three primary sentences is ambiguous, the trial court dispelled the confusion during the course of the plea hearing. Before accepting the defendant’s plea, the trial court asked the defendant, “[YJou’re telling this court that you understood when you entered this plea, that the total effective sentence ... to be imposed by the court, would be thirty years suspended after twenty, with five years probation? Was that your understanding?” The defendant responded, “Yes, it was.” Having assured the court that he understood the cumulative effect of the sentences in the plea agreement, it is disingenuous for the defendant to claim now that his plea was involuntary and unknowing in violation of his right to due process. The defendant’s second claim, therefore, fails to establish a clear infringement of a constitutional right.

The defendant’s final claim is that the trial court misstated his sentencing alternatives. Specifically, the defendant points out two instances of inaccuracy. First, the trial court did not state that the charge of burglary in the first degree, General Statutes § 53a-101, carries with it a mandatory minimum sentence of five years. Second, the court miscalculated the maximum cumulative effect of the seventeen separate charges against him: the court stated that the defendant faced a possible 150 years of imprisonment and $90,000 in fines, when he actually faced 155 years of imprisonment and $100,000 in fines. We are not persuaded that these inaccuracies deprived the defendant of his right to due process enabling him to prevail under State v. Golding, supra.

The defendant relies on the Federal District Court decision in Coleman v. Commissioner of Correction, Docket No. 2:91-CV0005 (PCD) (D. Conn. 1992). At issue in Coleman, as here, was “whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea.” (Emphasis added; internal quotation marks omitted.) Id., 4, citing Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir. 1980). The sentencing court in Coleman explained to the defendant that he faced a thirty year mandatory minimum when in .reality he faced only a five year mandatory minimum. That inaccuracy created a false incentive for him to accept the plea agreement. There, the court was convinced that the defendant would not have pleaded guilty had the sentencing court properly apprised him of the sentencing options.

Applying the analysis in Coleman to the present case, we conclude that the inaccuracies at issue logically had no bearing on the defendant’s acceptance of the plea bargain. Unlike in Coleman, the trial court in this case understated the possible sentences. The court omitted the fact that burglary in the first degree carries a five year mandatory minimum sentence and downsized the cumulative effect of the seventeen charges against the defendant. Thus, the trial court did not create an additional incentive for the defendant to accept the plea agreement. If anything, the trial court’s action decreased the likelihood of the defendant’s accepting the plea. It is readily apparent, therefore, that “accurate information would [not] have made any difference in his decision to enter a plea.” Coleman v. Commissioner of Correction, supra. We conclude that the defendant has failed to demonstrate any fundamental unfairness resulting from the actions of the trial court. See State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988); State v. Brown, 19 Conn. App. 640, 643, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989). Accordingly, he cannot prevail under State v. Golding, supra.

II

Although the claims raised by the defendant do not entitle him to withdraw his guilty pleas, several defects in the sentencing do necessitate a resentencing by the trial court. It is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court’s function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.

In this case, two possible interpretations of the sentences exist, neither of which can be squared with the sentence agreed on. First, if each of the three primary sentences runs consecutively with the other, the cumulative effect would be thirty-five years of incarceration, suspended after twenty years. We reject this interpretation because it imposes a maximum (thirty-five years) exceeding that to which the defendant expressly agreed (thirty years). The second interpretation is that the second and third primary sentences run concurrently with each other and consecutively with the first sentence. Under this interpretation, the cumulative effect would be thirty years of incarceration suspended after fifteen years. We also reject this interpretation because, despite offering a lesser period of incarceration, this is not the essence of the plea agreement.

The defendant has not asserted this matter in support of his request to withdraw his guilty pleas and, therefore, has abandoned it insofar as his due process claim is concerned. Kelly v. Bonney, 221 Conn. 549, 586, 606 A.2d 693 (1992). This defect does, however, necessitate a resentencing. On remand, the trial court may restructure the sentences on the seventeen remaining convictions to reach the sentence that was originally agreed on, namely thirty years of imprisonment suspended after twenty years with five years of probation. The trial court should also correct its failure to prescribe a period of probation in the sentence accompanying the charge for robbery in the second degree. See part I, supra. “The guiding principle is that the [trial] court may resentence the defendant ‘to achieve a rational, coherent [sentence] in light of the remaining convictions/ as long as the revised total effective sentence does not exceed the original.” State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990) (resentencing after trial court vacated one of several criminal convictions), citing United States v. Bentley, 850 F.2d 327, 328-29 (7th Cir.), cert. denied, 488 U.S. 970, 109 S. Ct. 501, 102 L. Ed. 2d 537 (1988).

The defendant has not asserted any constitutional defect in this case that would warrant a withdrawal of his guilty pleas. The trial court must resentence the defendant, however, to alleviate the sentencing defects.

The judgment is reversed in part and the case is remanded for resentencing in accordance with this opinion.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Practice Book § 711 provides: “--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       General Statutes § 53a-101 (c) provides: “Burglary in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       Initially, the defendant did not timely appeal Ms convictions. On a petition of habeas corpus, however, he successfully regained Ms right to a direct appeal.

       Although the trial court has not strictly conformed with the terms of Practice Book § 711, particularly paragraphs (2) and (4), this apparent defect in the canvass does not automatically violate the defendant’s constitutional rights. See State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988) (failure to advise defendant of mandatory minimum sentences in accepting guilty plea is not a constitutional violation); State v. Brown, 19 Conn. App. 640, 643, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989) (same).

       See, e.g., State v. Robinson, 213 Conn. 243, 248, 567 A.2d 1173 (1989) (violation of due process in context of preaccusation delay requires showing of substantial prejudice); State v. Cochran, 191 Conn. 180, 188, 463 A.2d 618 (1983) (any error in the jury charge was favorable to the defendant and is therefore not a justifiable basis of complaint by him); State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985) (defendant entitled to new trial only where he can show prejudice resulting from the court’s actions); State v. Messier, 16 Conn. App. 455, 471, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988).

       General Statutes § 53a-28 provides in pertinent part: “authorized sentences. (a) Except as provided in section 17a-656 and chapter 420b, to the extent that the provisions of said section and chapter are inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in section 53a-46a, when a person is convicted of an offense, the court shall impose one of the following sentences . . . (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and, a period of probation or a period of conditional discharge . . . (Emphasis added.)

       The trial court could have imposed a period of probation as part of the charge of robbery in the second degree to run concurrently with the five year period of probation accompanying the charge of robbery in the first degree. Practically, however, this would have little effect on the overall impact of the sentences.

       Moreover, the defendant’s claim that the sentence is illegal is dubious in light of our decision in State v. McNellis, 15 Conn. App. 416, 443-44, 545 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). There the court stated that an “ ‘illegal sentence’ is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. See 8A J. Moore, Federal Practice, para. 35.03[2], pp. 35-35 through 35-36.”

       Because the third sentence did not state that it ran consecutively with the second one, the defendant argues that it should be interpreted as running concurrently. Under this interpretation, the second and third sentences would overlap, leaving a total sentence of thirty years imprisonment suspended after fifteen years with five years probation.

       The decision in State v. Raucci, 21 Conn. App. 557, 558, 575 A.2d 234 (1990), was a case of first impression addressing whether “the trial court when correcting an illegal sentence pursuant to Practice Book § 935 after a multicount conviction has been partially set aside, may restructure the entire sentencing plan in order to effectuate its original sentencing intent.” Relying on the “overwhelming weight of the federal authority,” this court answered the question affirmatively. Id., 562. While the defendant has not moved for correction under Practice Book § 935, we choose not to let stand a technically defective sentence of this nature. On remand, therefore, the trial court may restructure the sentencing plan to effectuate the agreed sentence of thirty years of incarceration suspended after twenty with five years of probation.


text:
    State of Connecticut v. Michael J. Gilbert
    (11095)
    Foti, Lavery and Landau, Js.
    Argued December 14, 1992 —
    decision released February 23, 1993

      Mark Shapera, special public defender, for the appellant (defendant).

      James Ralls, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark Stabile, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b, misconduct with a motor vehicle in violation of General Statutes § 53a-57, and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court improperly (1) denied him a fair trial by refusing to recognize his amnesia as a bar to prosecution, (2) admitted evidence of his blood alcohol level, and (3) denied his request to charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 3,1990, at approximately 8:30 p.m., the defendant, Michael J. Gilbert, left Hank’s Restaurant on Route 6 in Brooklyn, Connecticut. He had been there for a few hours and had consumed some alcoholic drinks and pizza. Outside the restaurant, he smelled of alcohol, his speech was slurred and his balance was unsteady. He shuffled when walking and faltered getting into his vehicle, a 1981 Ford Escort. He slumped out of the driver’s window and dropped his keys. His eyes were bloodshot and watery. He was upset and planned to drive to another bar located in another town.

Some time before 9 p.m., the defendant, driving in the westbound lane on Route 6 with his headlights off, collided with a vehicle being operated in the eastbound lane. Route 6 is a two lane road, with one lane in each direction; the posted speed limit is forty-five miles per hour. The weather at the time was clear, and the road conditions were dry. The driver of the other vehicle, a 1980 Toyota Corolla, died as a result of injuries she received in the accident. The defendant was found unconscious in the driver’s seat of his car. He smelled of alcohol, and there were several open and empty beer cans in the vehicle, as well as a number of unopened cans of beer. The point of impact appeared to be in the the eastbound lane, in which the victim was driving.

The defendant was taken to Day Kimball Hospital in Putnam, where, as part of the hospital’s regular course of diagnosis and treatment of trauma patients, a blood sample was taken. The test revealed that the defendant’s blood alcohol level per deciliter was 0.226, which translates to a 0.194 percent alcohol ratio. As a result of the accident, the defendant suffered a traumatic brain injury which resulted in temporary paralysis and coma. In addition, the defendant suffered some loss of memory.

I

The defendant contends that he suffers from amnesia as a result of the accident and cannot recall the events in his life from two weeks before the accident until five weeks afterward. This condition, he claims, prevented him from exercising his constitutional right to due process of law as provided by the fourteenth amendment to the United States constitution and article first, §§ 8 and 20, of the Connecticut constitution. Specifically, the defendant claims that he did not receive a fair trial because he could not testify on his own behalf, confront witnesses, call witnesses, establish a defense, and have effective assistance of counsel. Since his amnesia is permanent, the defendant claims that he can never be tried because he can never obtain a fair trial.

We note initially that the defendant does not claim on appeal that he was incompetent to stand trial, as defined under General Statutes § 54-56d.* * While he acknowledges that he understands the nature of the proceedings, he claims that, as a matter of law, his amnesia precludes him from ever receiving a fair trial. As part of this claim, he contends that the trial court improperly denied his motion in limine, in which he sought to prevent two witnesses from testifying about conversations they had with him outside Hank’s Restaurant before the accident because he could not “confront” them, having no memory of the encounters.

We do not agree that amnesia was a bar to trial of the defendant under the facts of this case. The defendant concedes, and we agree, that amnesia is not a per se bar to criminal prosecution. United States v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969); Wilson v. United States, 391 F.2d 460, 462-63 (D.C. Cir. 1968). The defendant urges us to adopt, as did the Wilson court, a multifactor approach to the question of whether a defendant’s loss of memory precludes his prosecution. Under the Wilson approach, he claims, he should never be prosecuted.

In Wilson, the court framed the due process inquiry as whether a defendant could, in light of his amnesia, “ ‘perform the functions essential to the fairness and accuracy of the particular proceedings in which he is personally involved.’ ” Wilson v. United States, supra, 463. The Wilson court chose to resolve this question by requiring the trial court to conduct both a pretrial competency hearing and a posttrial determination that the defendant had been able to perform these essential functions. The court listed six factors for the trial court to consider in determining the effect of the amnesia on the trial’s fairness: (1) the extent to which the amnesia affected the defendant’s ability to consult with or assist his attorney; (2) the extent to which the amnesia affected his ability to testify in his own behalf; (3) the extent to which the evidence could be extrinsically reconstructed in view of the defendant’s amnesia, including evidence relating to the crime itself and any reasonably possible alibi defense; (4) the extent to which the government assisted the defendant and his counsel in that reconstruction; (5) the strength of the government’s case; and (6) any other relevant factors regarding a fair trial. Id., 463-64. “After finding all the facts relevant to the fairness of the trial, considering the amnesia, the [trial] court will then make a judgment whether, under applicable principles of due process, the conviction should stand.” Id., 464.

In rendering its decision on the defendant’s motion to dismiss, the trial court, Sferrazza, J., carefully considered the arguments of counsel regarding Wilson and, recognizing that there are no Connecticut cases addressing this issue, stated: “While the court finds that the case by case approach of Wilson is applicable the court feels [that] the specific findings required by that case are impractical and unnecessary to a determination of whether a defendant would be denied due process of law if forced to stand trial.” The court stated that it favored the approach employed by the Second Circuit Court of Appeals in United States v. Sullivan, supra.

In Sullivan, the defendant also claimed amnesia regarding the events surrounding the charges. At the time of trial, however, he was able to understand the charges and assist in the conduct of the trial. The court concluded that the defendant’s lack of memory would not be “a bar to his conviction if he was at the time of the offense capable of forming the requisite criminal intent, and at the time of trial competent to understand the nature of the proceedings against him and consult rationally with counsel.” Id., 186. The Sullivan court focused heavily on whether the defendant’s amnesia prevented him from forming the requisite intent for the offenses charged. The Sullivan majority concluded that, despite his amnesia, the defendant was not without gen’eral criminal intent because he did not “[lack] substantial capacity to appreciate the wrongfulness of his conduct or conform it to the requirements of law at the time of such conduct.” Id.

The trial court in this case agreed with Sullivan that the starting point of its analysis must be “whether [a defendant] has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. . . .” (Internal quotation marks omitted.) Id., 185. The trial court then meticulously placed on the record facts to support its conclusion that “based on the present ability of the defendant to consult rationally with his attorney and the ample opportunity for the defense to reconstruct the events of August 3,1990, independent of the defendant’s recollections, a fair trial can be had in this case . . . .”

The defendant contends that Sullivan is not applicable here because it was not decided on due process grounds. While Sullivan did not involve a constitutional claim, we do not view this as a reason for rejecting its analytical insights. Moreover, while the trial court found it unnecessary to employ the more rigid, six-factor approach espoused in Wilson, the trial court did perform a case by case analysis, examining all of the facts and circumstances and properly addressing the basic due process inquiry posed in Wilson: Whether a defendant suffering from amnesia could perform the functions essential to the fairness and accuracy of the proceedings.

First, the trial court found that the defendant could “communicate and consult rationally with his attorney. He has the ability to provide his counsel with the information concerning the charges that he does recall.” Second, the court found that because the offenses did not require a specific intent or knowledge, they were “particularly amenable to reconstruction, despite the defendant’s memory loss, because the defendant’s contemporaneous mental state is immaterial.” Third, the trial court noted that the state had provided the defense with open discovery to assist the defendant and his counsel in reconstructing events. Finally, the trial court noted that the defendant’s mental impairment did “not place him in any worse position than any one of the myriad defendants involved in accidents who have no memory of the event because of inebriation.” In so stating, the trial court implicitly recognized that it is “the probability of prejudice, not lack of memory per se, [that is] controlling.” Wilson v. United States, supra, 464 n.4. We conclude that on the basis of this analysis, the trial court properly found that the defendant’s prosecution, despite his amnesia, did not violate due process.

Our underlying task in reviewing the trial court’s findings is first to review the evidence presented, construing it in the light most favorable to sustaining the facts expressly found by the trial court, and then to decide whether, on the basis of the facts thus established and the inferences reasonably drawn therefrom, the trial court could have concluded as it did. State v. Rivera, 223 Conn. 41, 49, 612 A.2d 749 (1992); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

Our review of the record in this case discloses that the trial court reasonably could have concluded that the defendant possessed a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and . . . a rational as well as factual understanding of the proceedings against him”; (internal quotation marks omitted); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); and that the defense had an ample opportunity to reconstruct the events of the evening in question and to cross-examine witnesses, even without the defendant’s specific recollection of events. There was no probability of prejudice. Viewing the trial record in its entirety, we disagree with the defendant’s contention that as a result of his amnesia he could not and did not receive a fair trial. We, therefore, conclude that the trial court properly denied the defendant’s motion to dismiss and his motion in limine.

II

The defendant next claims that the trial court improperly admitted evidence of his blood alcohol level at the time of the accident. The defendant asserts that the evidence should have been excluded because the blood alcohol analysis was admitted in violation of General Statutes § 14-227a (d) and General Statutes (Rev. to 1985) § 14-227a (c), as amended by No. 86-345 of the 1986 Public Acts. We disagree.

The facts relevant to this claim are as follows. On the night of the accident, the defendant was transported by ambulance to Day Kimball Hospital. As part of the hospital’s regular course of diagnosis and treatment of trauma victims, a certified medical technologist took a blood sample from the defendant. A number of tests were performed on the sample, including a test of the defendant’s blood alcohol content. State police officers later obtained the results of this blood test by means of a search and seizure warrant.

The defendant claims that the blood test results should not have been admitted into evidence because he was charged with a violation of subsection (a) (1), the “behavioral” subsection, of General Statutes § 14-227a, rather than a violation of subsection (a) (2), the “per se” subsection, and because subsection (d) of § 14-227a specifies that blood test results, even those taken at a hospital for diagnosis and treatment, are admissible only at the defendant’s request. It is undisputed that the defendant made no such request.

We disagree with the defendant’s reading of General Statutes § 14-227a. We conclude that even when a defendant is charged under § 14-227a (a) (1), the “behavioral” subsection, blood test results may be admitted, without his request, when the blood has been drawn in the regular course of hospital business for the diagnosis and treatment of the defendant’s physical injury.

The admissibility of chemical analyses is controlled by General Statutes § 14-227a (c),* which lists six factors that must be met before such evidence is deemed admissible and competent. One of those factors is the requirement that “the test was performed by or at the direction of a police officer . . . .” General Statutes § 14-227a (c) (3). Section 14-227a (d) very clearly states that a chemical analysis that is “otherwise admissible under subsection (c) of this section, shall be admissible only at the request of the defendant.” (Emphasis added.) Subsection (d) does not refer to subsection (l) of § 14-227a. The latter makes admissible as evidence, for the prosecution of a violation under § 14-227a (a), any chemical analysis of the defendant’s blood that is taken at a hospital. Such chemical analyses are therefore admissible under § 14-227a (l) “[notwithstanding the provisions of subsection (c)” for both behavioral and per se violations under § 14-227a(a).

The blood test results in question were obtained from a test performed as part of the defendant’s diagnosis and treatment at Day Kimball Hospital, not from a test performed by or at the direction of a police officer. Section 14-227a (c) is therefore inapplicable. Because this evidence was not “otherwise admissible under [§ 14-227a (c)],” the defendant’s request pursuant to § 14-227a (d) was not a necessary predicate to its admissibility.

The defendant contends that our analysis here requires a review of the legislative history of Public Acts 1986, No. 86-345, codified as General Statutes § 14-227a (l) and passed as an amendment to General Statutes (Rev. to 1985) § 14-227a (c), to determine the legislative intent regarding admissibility of hospital performed blood tests. We decline to do so, however, as the statute is clear and unambiguous. Kilduff v. Adams, Inc., 219 Conn. 314, 336, 593 A.2d 478 (1991). Where the words of a statute are clear, our duty is to apply the legislature’s directive. “[WJhere the wording [of a statute] is plain, courts will not speculate as to any supposed intention because the question . . . is not what the legislature actually intended, but what intention it expressed by the words that it used.” (Internal quotation marks omitted.) Id.

Alternatively, the defendant contends that the blood alcohol test should not have been admitted because the witness and taker of the sample was not a “person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a qualified laboratory technician, an emergency technician II or a registered nurse” as required by General Statutes § 14-227a (l) (2). We disagree. The trial court found that a certified medical technologist is at least a qualified laboratory technician, in that the medical technologist’s training encompasses and exceeds that of a laboratory technician. Our review of the record reveals that the trial court’s factual findings are supported by substantial evidence. See State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

Ill

Finally, the defendant claims that the court improperly refused to instruct the jury using the exact language he requested. The defendant concedes that the separate charges given on both manslaughter in the second degree with a motor vehicle and misconduct with a motor vehicle “were correct statements of the law.” He does not claim that the instructions as given were incorrect, incomplete, inconsistent or confusing. Rather, he claims that his request would have been “especially important regarding the mental element [of criminal negligence] which must be proven” on the misconduct with a motor vehicle count. We do not agree.

The purpose of a jury instruction is to give jurors a clear understanding of the elements of the crimes charged and to afford them proper guidance for their determination of whether those elements were present. State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987). In determining whether the trial court’s instructions were adequate, we view the charge “as a whole to determine whether it is reasonably possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991).

The trial court in a criminal proceeding is under no duty to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the requested charge. State v. Pinnock, 220 Conn. 765, 789, 601 A.2d 521 (1992). The court’s responsibility is performed when it instructs the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the crimes charged and on the evidence, and when those instructions are suited to guide them in their determination of those issues. State v. Watlington, 216 Conn. 188, 199, 579 A.2d 490 (1990).

Our review of the charge as a whole leads inescapably to the conclusion that there is no reasonable possibility that the jury was misled. It is clear after reading the charge that the jury was adequately informed of all the applicable law. The defendant’s request to charge was unnecessary, given the court’s thorough and clear instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was sentenced on the first count to a term of imprisonment of ten years, with execution of that sentence suspended after five years, followed by five years of probation. On the second count, the defendant was sentenced to a term of five years, to be served concurrently with the sentence imposed on the first count. The court took no action on the third count, and did not impose a sentence, determining that it was a lesser included offense.

       The trial court, in denying the defendant’s motion to dismiss the charges against him, specifically found that “the defendant cannot recall the events of his life from two weeks before the accident until five weeks afterward. It is very unlikely that his amnesia relative to this period will ever abate.”

       General Statutes § 54-56d provides in pertinent part that a “defendant shall not be tried, convicted or sentenced while he is not competent. . . . [A] defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.” See State v. DeAngelis, 200 Conn. 224, 229, 511 A.2d 310 (1986).

       On May 1, 1991, the trial court held a competency hearing pursuant to General Statutes § 54-56d, and found the defendant competent to stand trial. The defendant did not claim incompetency under § 54-56d at the time of trial in November, 1991, and is precluded from raising this issue on appeal. State v. Chapman, 28 Conn. App. 360, 368-69, 610 A.2d 1328, cert. granted, 223 Conn. 923, 614 A.2d 827 (1992). The defendant did raise, by motion to dismiss, his present due process claim that he cannot receive a fair trial because he suffers from the mental defect of amnesia. The motion was denied on May 31, 1991, and presented again at the time of trial.

       After the trial court denied the defendant’s motion in limine, both witnesses testified. The defendant did not cross-examine Delana O’Neill. He briefly cross-examined Henry Hewig about the direction in which the defendant was walking when Hewig saw him outside the restaurant, the appearance of the defendant’s eyes, and the statement Hewig voluntarily gave to state police two days after the accident.

       The court stated: “Both the Norwich Court Clinic report and the Fairlawn Rehabilitation Hospital report conclude that this defendant can communicate and consult rationally with his attorney. He has the ability to provide his counsel with the information concerning the charges that he does recall. For instance, the defendant is able to recall that the insurance on his vehicle had lapsed and was not renewed.”

       The trial court found that: “The state has provided the defense with open discovery including a copy of a twenty-two page accident investigation report. This report provides specific information, including the names and addresses of witnesses, detailing the activities of the defendant and the victim in the days and hours preceding the collision. It discloses the names and statements of the employees of the restaurant who observed the defendant and served liquor to the defendant shortly before the incident. It provides the names and statements of the defendant’s friends who talked with him and observed his physical condition as he exited the restaurant, entered his vehicle, and drove off onto Route 6. It provides the names and statements of witnesses who came upon the accident scene shortly after impact. It discloses a wealth of physical evidence obtained at the scene and thereafter, including debris dispersal analysis, diagrams, measurements, an inventory of the contents of the vehicles, and other material pertinent to accident reconstruction. It comprises medical information regarding the cause of death of the victim and the medical condition of the defendant, including the blood-alcohol ratio for both parties. It reveals that photographs of the accident scene and the vehicles on the date of the accident and at later times were taken.”

       The trial court noted: “This is not a case where the defenses of alibi or mistaken identification apply. Even the question of operation appears uncontrovertible given the evidence that the defendant was found alone in his own vehicle after the crash and witnesses observed him driving onto Route 6 just before the crash. The significant remaining issues appear to be inebriation and causation. Proof of these matters frequently relies on physical evidence and independent witnesses rather than the recollection of the drivers involved.”

         General Statutes § 14-227a (a) provides: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (d) provides: “evidence of blood alcohol content. In any prosecution for a violation of subdivision (1) of subsection (a) of this section, reliable evidence respecting the amount of alcohol or drugs in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s blood, breath or urine, otherwise admissible under subsection (c) of this section, shall be admissible only at the request of the defendant.”

       General-Statutes § 14-227a (c) provides: “admissibility of chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or mine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”

       General Statutes § 14-227a (l) provides: “seizure and admissibility OF CHEMICAL ANALYSIS OF HOSPITAL BLOOD SAMPLE OF INJURED OPERATOR. Notwithstanding the provisions of subsection (c) of this section, evidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person at a hospital after such accident, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) The blood sample was taken in the regular course of business of the hospital for the diagnosis and treatment of such injury; (2) the blood sample was taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a qualified laboratory technician, an emergency technical II or a registered nurse; (3) a police officer has demonstrated to the satisfaction of a judge of the superior court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor or drug or both and that the chemical analysis of such blood sample constitutes evidence of the commission of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of subsection (a) of section 14-227a; and (4) such judge has issued a search warrant in accordance with section 54-33a authorizing the seizure of the chemical analysis of such blood sample.”

       In his reply brief, the defendant renews his equal protection argument, made before the trial court, that the admissibility of hospital performed blood tests without a defendant’s request impermissibly distinguished between defendants charged under General Statutes § 14-227a (a) (1) who are injured and receive treatment at a hospital and those who are not injured and treated. We do not agree that such a distinction is irrational. The legislature could rationally have determined that the more complex procedural safeguards are necessary when such tests are performed as part of a police investigation. These additional protections against government intrusion are not warranted when such tests are performed by a hospital, which requires a blood analysis not as a means of obtaining evidence for the purpose of criminal prosecution, but as part of its routine course of treating and diagnosing accident victims.

       The defendant submitted the following request to charge: “It is possible to operate a motor vehicle while intoxicated, resulting in the death of another, without failing to perceive the risk involved in driving in that condition. For example, one can be intoxicated, and also perceive the risks involved in driving in that condition, and yet ignore those risks, and then, because of the intoxication, be unable to maintain sufficient control of the motor vehicle to avoid a collision. State v. Kristy [11 Conn. App. 473, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987)].”