author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. JOSE A. LAMEIRAO
    (AC 32688)
    Gruendel, Lavine and Schaller, Js.

      Argued February 7
    officially released May 8, 2012

      Susan M. Hankins, special public defender, for the appellant (defendant).

      AdamE. Mattel, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Jose A. Lameirao, appeals from the judgments of conviction, rendered by the trial court pursuant to his guilty pleas of attempt to commit risk of injury to a child in violation of General Statutes §§ 53a-49 (a) (2) and 53-21 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), illegal operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a, illegal operation of a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 and his admission to two counts of violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his pleas and admissions (motion to withdraw) because, during the plea hearing, the court (1) failed to address him personally to make the determinations required by Practice Book §§ 39-19 and 39-20, and (2) misled him with its advisement that the state’s recitation of the facts constituted the essential elements of the crimes charged. He also claims that the court improperly found that (3) his pleas were intelligent and voluntary, and (4) his counsel’s representation was not ineffective. We affirm the judgments of the trial court.

In late 2008, the defendant had charges pending against him in five cases. The state charged the defendant with risk of injury to a child and other violations in two criminal files, operating a motor vehicle while under the influence of intoxicating liquor or drugs and two counts of violation of probation arising from motor vehicle offenses. The following facts provide the basis for each of the charges.

The Fairfield case: After his soccer game on June 1, 2008, an eleven year old boy and his mother went to a McDonald’s restaurant in Fairfield. Before getting something to eat, they used the rest rooms. A surveillance camera captured the defendant following the boy into the rest room. The boy told the police that after he had washed his hands, the defendant stood in front of him and asked him several personal questions, which the boy declined to answer. The defendant held a cellular telephone in one hand and asked the boy to enter a stall and provide him with his telephone number. With his other hand, the defendant lifted the boy’s soccer shirt, exposing the boy’s lower abdomen and the groin area of his shorts. The boy pushed his shirt down and turned to exit the rest room. The defendant reached for the boy, told him not to leave and followed him out of the rest room. The boy was frightened and told his mother about the incident. The next day, the boy’s mother reported the incident to the police. The boy gave the police a sworn statement, noting that the defendant had a u-shaped scar under one of his eyes. One day later, the boy identified the defendant, who has a scar under one of his eyes, in a photographic array. The defendant was arrested and charged with risk of injury to a child in violation of § 53-21, sexual assault in the fourth degree in violation of General Statutes § 53a-73a and breach of the peace in the second degree in violation of General Statutes § 53a-181.

The motor vehicle cases: On October 10, 2008, the defendant was sentenced in the geographical area number twenty-three court in the judicial district of New Haven in two cases stemming from charges of operating a motor vehicle while under the influence of intoxicating liquor or drugs. In both cases, the defendant was sentenced to probation. One of the conditions of probation prohibited the defendant from operating a motor vehicle while his privilege to drive was under suspension and another forbade the defendant from driving until his license was restored. These files were later transferred to the judicial district of Fairfield at Bridgeport.

On November 11,2008, after being notified of a motor vehicle accident, a Bridgeport police officer stopped a motor vehicle with heavy front end damage. The defendant was operating the vehicle, and the officer saw a bottle of rum in plain view. The defendant emitted an odor of alcohol and was unable to perform any field sobriety tests. He was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs. On the basis of the defendant’s November 11,2008 motor vehicle arrest, an arrest warrant for violation of probation was issued against him.

The Bridgeport case: On November 25, 2008, at approximately 7:30 p.m., the defendant was operating a truck in Bridgeport when he stopped adjacent to a teenage boy who was riding a bicycle. The defendant asked the teen if he wanted to smoke and drink. He then opened the door of the truck and grabbed the teen’s jacket. The teen pushed the defendant’s hand away, memorized a portion of the truck’s license plate and called 911. The police found a truck fitting the description given by the teen at a hotel in Milford. The police took the teen to the hotel where he identified the defendant. The defendant was arrested and charged with attempt to commit kidnapping in the second degree in violation of General Statutes § 53a-94 and risk of injuiy to a child in violation of § 53-21 (a) (1).

Initially, the defendant was represented by counsel afforded him by his union membership, but he dismissed that counsel, who had advised him to accept a plea offer. After dismissing prior counsel, the defendant retained attorney Richard P. Silverstein to represent him in all five cases. After at least one continuance, the Bridgeport case came before the court, Thim, J., for pretrial discussions. The defendant himself filed a motion for disclosure of the 911 tapes. The state represented that it wanted to try the Fairfield and Bridgeport cases together. Silverstein opposed joinder of the criminal cases. The court stated that discussion of joinder was premature and removed the Bridgeport case from the trial list.

On January 25,2010, the Bridgeport case came before the court, Devlin, J., for trial. Judge Devlin asked the parties whether settlement negotiations had been exhausted. Silverstein represented that there had been several pretrials and that he was still discussing the matter with the defendant. He also represented that the state had disclosed the 911 tapes, which he would discuss with the defendant, and “that might cause [the defendant] to rethink [his] position.” The defendant told the court, “I’m not pleading to something . . . .” The court advised the defendant that the decision to plead guilty was his, but that he should consider the matter carefully. The court then asked which of the criminal cases would be tried first. The state repeated its intention to try the criminal cases together. The court stated that jury selection would start “on Wednesday” and advised the state to file a motion for joinder.

The parties appeared before Judge Devlin to begin jury selection on January 27, 2010. Before voir dire commenced, the defendant decided to change his plea. The parties then appeared before Judge Thim, and the defendant pleaded guilty to one count of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53-21 (a) (2) in the Fairfield case, one count of risk of injury to a child pursuant to § 53-21 (a) (1) in the Bridgeport case, one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a and one count of illegal operation of a motor vehicle while his license was under suspension in violation of § 14-215. The defendant also admitted to two counts of violation of probation in violation of § 53a-32. After the defendant pleaded, Judge Thim directed certain questions to him.

The court asked the defendant his age, how much education he had received, and whether he had taken any drugs, medication or alcohol that would affect his ability to understand what was taking place in court that day. The defendant told the court that he was forty-six years old, had gone to Central High School and was taking medication for depression, but that he did not think the medication affected his ability to understand the proceedings. The defendant responded, “yes,” when the court asked him if he was satisfied with the advice his attorney had given him and if his attorney had done all he could for him. The defendant also told the court that he understood that by pleading guilty he was giving up certain constitutional rights, which the court had enumerated. Thereafter, the following colloquy took place:

“The Court: Has anyone forced you in any way to give up those rights, sir?
“The Defendant: No.
“The Court: Now, with respect to the risk of injury charges, has your attorney . . . explained to you just what it is the state must prove to show that you are guilty of those charges?
“The Defendant: No.
“The Court: Okay.
“(Whereupon discussion was held off the record between defense counsel and the defendant.)
“The Defendant: Oh, okay. Yeah. Yeah.
“The Court: Well, let me ask the question again. Maybe you did or did not understand it. First . . . you are charged with risk of injury in violation of § 53-21 (a), subpart one, and in the other case, subpart two of the General Statutes. . . . Has Mr. Silverstein explained to you just what it is the state must prove to show that you are guilty of those charges?
“The Defendant: Yes.
“The Court: Mr. Silverstein, have you explained the
“Attorney Silverstein: I did. We went over the elements of the crime and that the state needed to prove those elements beyond a reasonable doubt.
“The Court: Okay. And the violation of subpart one is a class C felony with the possible maximum penalty being ten years, and the violation of subpart two is a B felony with the maximum penalty being twenty years. So, that on those two cases you could be, without a plea agreement, sentenced to ten years on one and, on top of that, twenty years on the other. So, you could be, theoretically, sentenced up to thirty years on those two cases. Do you understand that, sir?
“The Defendant: Yes.”

In response to the court’s inquiry, Silverstein informed the court that the defendant owed 363 days on the two violation of probation charges. The prosecutor stated to the court that operating a motor vehicle under suspension required a mandatory minimum sentence of thirty days and a mandatory minimum sentence of 120 days for driving under the influence. The court asked Silverstein if he had spent time with the defendant explaining those penalties. Silverstein explained that he had and that the defendant understood. The court then addressed the defendant again:

“The Court: . . . One thing before [the prosecutor] speaks. . . . [Y]our attorney has told me you’re pleading guilty under the Alford doctrine. What that means, that doctrine, it allows a judge to take a guilty plea even though the defendant does not admit every factual claim of the state. It basically means that you have gone over the law and the evidence with your attorney and that you have concluded that there’s a substantial likelihood that should you proceed with trial you will be found guilty of the charge. Therefore, you are submitting to a guilty finding and taking advantage of plea bargaining. Is that basically what you are doing with the two risk of injury charges?
“The Defendant: Yes.
“The Court: Okay. Let’s listen carefully to [the prosecutor].”

The prosecutor then set forth the facts of the Fairfield case after which the following colloquy occurred:

“The Court: . . . [J]ust to keep them separate for a moment, Mr. Lameirao, I understand you’re pleading guilty under the Alford doctrine, but you just heard [the prosecutor] recite the facts on a case. Do you wish to comment, add anything, or correct anything or just remain silent?
“The Defendant: Remain silent.
“The Court: Okay. [Prosecutor].”

The prosecutor then set forth the factual basis of the Bridgeport case after which the following colloquy occurred:

“The Court: Mr. Lameirao, once again I ask you, do you wish to comment, correct, or add anything to what [the prosecutor] . . .
“Attorney Silverstein: Yeah, on his behalf, Your Honor, [the defendant] adamantly denies having any physical contact with this individual, nor indicated that he made any attempt to grab him. And I believe, pursuant to the plea agreement, the state has elected not to go forth on the kidnapping second charge and charged with a risk of injury to a [child].
“The Court: Other than Mr. Silverstein’s comments, is there anything you want to add, sir?
“The Defendant: No, I agree what he said that I . . .
“Attorney Silverstein: That’s it.”

After listening to the recitation of facts relating to the violation of probation on the motor vehicle charges, the defendant admitted to driving when his operator’s license was under suspension and that he also drove while he was intoxicated. The following colloquy then occurred:

“The Court: Okay. Now, a few other things I want to go over with you before we get to the plea agreement. First of all, if I accept your pleas of guilty to the risk of injury and . . . enter a finding of guilty, when you get out of prison, you will be required to register with the commissioner of public safety as a sex offender. Do you understand that, sir?
“The Defendant: For how long?
“The Court: Oh, well, that’s up to when I impose the sentence . . .
“The Defendant: Oh.
“The Court: I’ll decide that. Somewhere between ten to thirty years. I’ll listen to your lawyer argue . . . that point in time.
“The Defendant: Okay.
“The Court: Do you understand that, sir?
“The Defendant: Yes.”

The prosecutor then informed the court of the plea agreement: a twenty year sentence, execution suspended after ten years, followed by a period of probation somewhere between ten to thirty-five years and ten years as a registered sex offender. The defendant informed the court that the prosecutor’s recitation was consistent with his understanding of the plea agreement. The court informed the defendant that as long as the state honors the plea agreement, he will not be permitted to withdraw his pleas. The defendant stated that he understood. The court told the defendant that the plea agreement was what the total effective sentence would be. The matter was continued for a presentencing investigation report.

The defendant and a probation officer met via teleconference, which was videotaped, and the defendant signed a release for the presentence investigation report. Although the matter was scheduled for sentencing on April 1, 2010, Judge Thim continued sentencing until April 23, 2010, because Silverstein had informed him that the defendant wanted to withdraw his pleas. On April 23, 2010, the court stated that it was in possession of two letters from the defendant that were addressed to the clerk of the court and a motion to withdraw as counsel filed by Silverstein. When asked to explain the basis of his motion to withdraw, Silverstein stated that the defendant had filed a grievance against him, which, according to Silverstein, contained “pretty harsh allegations . . . .” Under the circumstances, Sil-verstein did not think that, in good conscience, he could represent the defendant.

The court asked the defendant to explain the basis of his motion to withdraw. The defendant stated that Silverstein “lied to me, was dishonest when I spoke to him upstairs in the courtroom. What happened when I came down before you was not what he told me upstairs. What he told me upstairs is a complete lie. He’s been lying to me since I hired him.” The court noted that Practice Book § 39-27 permits a defendant to withdraw a plea if the plea is the result of ineffective assistance of counsel.

On July 7, 2010, Joseph G. Bruckmann, a public defender, filed an amended motion to withdraw the defendant’s guilty pleas and admissions. The defendant appeared before Judge Thim on July 8, 2010, when Bruckmann argued that the court was required to permit the defendant to withdraw his pleas because the court never explicitly accepted his pleas as required by Practice Book § 39-26. The court rejected the argument, stating that it had reviewed the transcript of the plea hearing and found that it implicitly had accepted the defendant’s pleas.

The court also heard testimony from the defendant and Silverstein. The defendant testified that Silverstein met with him only twice, never returned his telephone calls, never discussed potential defenses nor provided him with documents, witness statements or police reports. The defendant said that he never saw the surveillance video and claimed that Silverstein told him that there was no 911 tape. The defendant stated that after he listened to the 911 tape on January 27, 2010, Silverstein threatened him, saying that “if [he] didn’t plead guilty, [Silverstein] was gonna make [him] regret it.” According to the defendant, Silverstein never explained what the state had to prove to convict him and told him that he was pleading guilty to “two risks, subsection one.” Silverstein allegedly told the defendant that the plea agreement was “ten, suspended after five, ten years probation and ten on registration.” The defendant stated that it was only after he read the transcripts that he realized that the state surreptitiously had “added subsection two” to the risk of injury to a child charge because it required sex offender registration.

The defendant claimed that Silverstein told him that he needed to hire a private investigator but that no investigator was hired. On cross-examination, the defendant admitted that he pleaded guilty on prior occasions and admitted that, during the plea canvass, he told the court that no one had forced him to plead guilty. He also admitted that he understood the plea agreement to be “twenty after ten followed by probation . . . .” The defendant, however, claimed that the transcript was incomplete.

Silverstein testified that he has represented criminal defendants for twenty-five years and has tried approximately 200 cases. When he became involved in the defendant’s case, he knew that the defendant was perceived as difficult by his union. The union asked Sil-verstein to represent the defendant in the Fairfield case. When the defendant was charged in the Bridgeport case, a class B felony for which the union did not provide counsel, the defendant asked Silverstein to take his case privately. Silverstein explained to the defendant that his representation would be expensive; the defendant signed a fee agreement and gave Silverstein power of attorney to access his bank account. In discussions with the defendant, Silverstein spent a great deal of time explaining to the defendant why a plea bargain would be in his best interest, given the charges. He explained all of the charges, their elements and possible sentences, as well as the terms of the plea bargain offer.

Following the presentation of evidence, Bruckmann argued that the defendant’s motion to withdraw the pleas should be granted because the court did not accept the pleas and the defendant did not understand the nature of the charges against him, what the state was required to prove and the terms of the plea agreement. Bruckmann stated that the defendant may have construed Silverstein’s telling him that he, the defendant, would regret it if he did not accept the plea offer as Silverstein’s telling him that he, Silverstein, would make him regret not taking the offer. Bruckmann argued that the defendant misunderstood Silverstein’s statement, which affected the voluntariness of the defendant’s accepting the plea offer. Bruckmann also argued that Silverstein failed to help the defendant understand why hiring an investigator would not help his case, but he agreed with Silverstein’s position that an investigator would not have been beneficial to the defendant.

During his argument, the prosecutor referred to the transcript of the plea hearing and noted the defendant’s responses to the court’s questions. He also noted that, after he had recited the facts underlying the Bridgeport case, Silverstein spoke up on behalf of the defendant, stating that the defendant “adamantly denies having any physical contact” with the teen and that the state elected “not to go forward with the kidnapping charge.” The prosecutor further argued that the issues would be settled on the basis of the court’s credibility determinations and that the defendant had failed to demonstrate the ineffective assistance of counsel.

In issuing its ruling, the court made the following factual findings. The defendant and Silverstein appeared in court fourteen times before the case was assigned to Judge Devlin for trial on January 15, 2010. Moreover, Judge Thim found, “[e]arlier, on March 27, 2009, I conducted a pretrial conference with counsel, and the state was asking for a substantial period of incarceration, as was earlier explained today by . . . Silverstein. I told counsel ... for the state and the defendant that if the defendant pled guilty to the charges, I would impose a sentence of twenty years, suspended after ten years, require [sex offender] registration for ten years and a probationary term somewhere between ten to thirty-five years. I find that this plea offer was communicated by counsel to the defendant before the trial assignment date of January 25, [2010].” The court then addressed the four claims the defendant had raised in this motion to withdraw his pleas and admissions.

As to the claim that the court did not accept the defendant’s pleas, the court found that it implicitly had accepted the pleas. The court informed the defendant that he would not be permitted to withdraw his pleas as long as the state honored the plea agreement. The defendant stated that he understood the court’s advisement. On the basis of the court’s review of the transcript and the relevant sections of the rules of practice, it determined that on January 27, 2010, the defendant’s pleas were voluntary and not the result of force, threats or promises apart from the plea agreement. The court found Silverstein’s testimony to be credible and that Silverstein advised the defendant of the benefit of the plea agreement and did not coerce the defendant into accepting the plea agreement.

The issues concerning the defendant’s knowledge of the nature of the crimes with which he was charged, the sentences that could be imposed and the effectiveness of counsel turn on the court’s credibility assessment. The court found Silverstein to be credible and that the defendant knew the nature of the charges and their possible sentencing consequences. The defendant also knew and understood the plea agreement set forth in the record of January 27, 2010. Moreover, the court found that the defendant failed to show that he was denied the effective assistance of counsel. The court also found that, under the facts of this case, Silverstein’s investigation was adequate and the defendant failed to meet his burden to show that but for the alleged lack of investigation, he would not have pleaded guilty or the result would have been different. The court denied the defendant’s motion to withdraw his guilty pleas. 851 A.2d 305 (2004). “Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Morales, 121 Conn. App. 767, 773-74, 996 A.2d 1206, cert. denied, 298 Conn. 909, 4 A.3d 835 (2010).

Judge Thim sentenced the defendant in accordance with the plea agreement on July 30, 2010. The defendant appealed.

I

The defendant claims that the court deprived him of his federal and state constitutional rights to due process and a fair trial by denying his motion to withdraw his pleas. Under that broad claim, the defendant claims that the court failed (1) to address him personally to make the requisite determinations under Practice Book §§ 39-19 and 39-20, and (2) to accept his pleas as required by the rules of practice. We disagree.

Practice Book § 39-26 provides in relevant part: “A defendant may withdraw his . . . plea of guilty . . . as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his . . . plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his . . . plea after the conclusion of the proceeding at which the sentence was imposed.”

“[0]ur standard of review is abuse of discretion for decisions on motions to withdraw guilty pleas brought under Practice Book § 39-27.” State v. Scales, 82 Conn. App. 126, 129, 842 A.2d 1158, cert. denied, 269 Conn. 902,

“In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

A

The defendant’s first claim is that the court improperly failed to grant his motion to withdraw his pleas because the court failed to address him personally to make the findings required under Practice Book §§ 39-19 and 39-20. Namely, the defendant claims that the court never addressed him personally to determine whether he fully understood the nature of the charges to which the plea agreement was offered and never addressed Mm personally in open court to determine that the pleas were voluntary and not the result of force, threats or promises apart from the plea agreement. We disagree because the record of the court’s plea canvass, as set forth in detail in tMs opinion, does not support the defendant’s claims.

The defendant told Judge Thim that no one had threatened him or forced him to give up Ms rights. Although he mitially responded, “no,” to the court’s inquiry as to whether Silverstein had explained to Mm what the state must prove, after speaking to Silverstein briefly, the defendant stated to the court, “[o]h, okay. Yeah. Yeah.” Given the defendant’s different responses, the court asked the defendant, “[w]ell, let me ask the question again. Maybe you did or did not understand it. First . . . you are charged with risk of injury in violation of § 53-21 (a), subpart one, and in the other case, subpart two, of the General Statutes. . . . Has Mr. Silverstein explained to you just what it is the state must prove to show that you are guilty of those charges?” The defendant stated, “[y]es.”

Moreover, the court also asked the defendant, “And the violation of subpart one is a class C felony with the possible maximum penalty being ten years, and the violation of subpart two is a B felony with the maximum penalty being twenty years. So, that on those two cases, you could be, without a plea agreement, sentenced to ten years on one and, on top of that, twenty years on the other. So, you could be, theoretically, sentenced up to thirty years on those two cases. Do you understand that, sir?” The defendant stated: “[y]es.” After the prosecutor stated on the record the facts underlying the criminal cases, the court asked the defendant if he wanted to comment, add anything, correct anything or remain silent. With regard to the facts underlying the Fairfield case, the defendant elected to remain silent. As to the underlying facts of the Bridgeport case, Silverstein spoke on the defendant’s behalf, stating that the defendant denied ever touching the teen.

Given the record of the plea canvass, the defendant’s claim that the court did not personally address him with regard to whether his pleas were voluntary and whether he understood the nature of the charges and what the state was required to prove is confounding. The defendant cannot prevail on this claim.

B

The defendant claims that his motion to withdraw his pleas should have been granted as a matter of right because the court did not explicitly accept his pleas. We do not agree.

The defendant takes issue with the court’s finding that it implicitly accepted his guilty pleas on January 27, 2010. He contends that the language, “acceptance,” as used in Practice Book § 39-26, means explicit acceptance by the court. Moreover, he argues that acceptance is not a mere formality or technicality, but a matter of substance affecting the defendant’s statutory and constitutional rights to maintain his pleas of not guilty, unless and until the court has satisfied the mandates of the rules of practice. The defendant, however, does not cite any law to support his position that the court’s acceptance of a plea must be explicit.

The defendant’s claim requires us to construe the rule of practice. “The rules of statutory construction apply with equal force to Practice Book rules.” (Internal quotation marks omitted.) Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). “It is a principle of statutory construction that a court must construe a statute as written. . . . Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them.” (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006).

Section 39-26 of the rules of practice provides, in relevant part: “A defendant may withdraw his . . . plea of guilty ... as a matter or right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his . . . plea upon proof of one of the grounds in Section 39-27. . . .” We note that there are no words in the rule that qualify the nature of the acceptance of a guilty plea. The rule contains neither the word implicitly nor explicitly. “Connecticut courts have refused to attach talismanic significance to the presence or absence of particular words or phrases”; (internal quotation marks omitted) State v. Wright, 114 Conn. App. 448, 470 n.1, 969 A.2d 827 (2009) (DiPentima, J., concurring); in different contexts. Moreover, “the trial court is presumed to have applied the law correctly, and it is the burden of the applicant to show to the contrary.” (Internal quotation marks omitted.) Blumenthal v. Kimberly Mfg., Inc., 265 Conn. 1, 9, 826 A.2d 1088 (2003). Our thorough review of the record demonstrates that the defendant has failed to meet his burden.

The defendant appeared before Judge Thim on January 27, 2010, after he had appeared before Judge Devlin to start picking a jury. The defendant, after seeing or listening to the 911 tape, apparently decided that accepting the state’s plea offer was a better course of action than allowing a jury to decide his fate. Judge Thun canvassed the defendant, who represented that he wanted to change his plea. The defendant had met with Silverstein, who explained the charges against him, what the state had to prove to convict him, the potential sentences if convicted and the terms of the plea agreement. The defendant indicated that he was satisfied with Silverstein’s representation and that he was not threatened or otherwise coerced into accepting the plea agreement. The defendant acknowledged that he was giving up certain of his constitutional rights in exchange for a plea bargain. The court explained the Alford doctrine to the plaintiff. The defendant heard the prosecutor state the facts underlying the charges and stood silent with regard to the facts of the Fairfield case. As to the facts of the Bridgeport case, Silverstein spoke on the defendant’s behalf adamantly denying that the defendant touched the teen. After the prosecutor placed the plea agreement on the record, the following colloquy took place:

“The Court: Okay. Plea agreement, twenty years, suspended after ten years, followed by probation. Is that what you understand the agreement to be, sir?
“The Defendant: Yes. . . .
“The Court: Okay. Okay. We will . . . and that’s the total effective sentence. Now, that’s what it will be. Now, we will continue the case for a presentence report.” (Emphasis added.) The court then scheduled sentencing for March 19, 2010.

On the basis of this record, we are constrained to conclude that the court implicitly accepted the defendant’s plea. After the defendant stated that he understood the plea agreement to be twenty years, suspended after ten, the court stated “[n]ow, that’s what it will be.” The court then continued the matter and requested a presentence investigation report. There would be no reason to order a presentence report or to schedule sentencing if the court had not accepted the defendant’s pleas and admissions. The record also demonstrates that the defendant communicated with a probation officer to complete the presentence report and signed a release for the report. The defendant’s behavior is consistent with his understanding that the court had accepted his Alford pleas and admissions. Compare State v. Pena, 16 Conn. App. 518, 531-34, 548 A.2d 445, cert. denied, 209 Conn. 830, 552 A.2d 1217 (1988).

The defendant takes exception to the federal case on which the court relied for the propriety of accepting a plea implicitly. Although we disagree with the defendant’s claim that United States v. Morales-Sosa, 191 F.3d 586 (5th Cir. 1999), does not support Judge Thim’s ruling, we need not rely on federal law to support our conclusion that an implicit finding is proper. In State v. Pena, supra, 16 Conn. App. 531-34, the transcript of the proceeding at which Francisco Pena pleaded guilty pursuant to the Alford doctrine did not contain a record of the court’s having accepted his guilty pleas. Id., 523. On appeal, this court stated, “[o]ur review of the entire record leaves us with no doubt that a finding of guilty was manifest in the trial court’s actions. Despite the absence of the specific words ‘I find the defendant guilty’ in the transcripts, the trial court’s unchallenged signature attesting to a finding of guilty is clear evidence of the court’s conclusion as to the defendant’s guilt.” Id., 533. Moreover, as in this case, the trial court continued the matter for preparation of a presentence investigation report. Id., 534.

As in Pena, the trial court here found that “a finding of guilty was implicit in the trial court’s actions.” We agree and conclude that the court’s actions and the defendant’s participating in the preparation of a presen-tence investigation report demonstrate implicitly that the court accepted the defendant’s guilty pleas and admissions, and that the defendant acknowledged the acceptance. Moreover, the record discloses no facts to indicate that the court had not accepted the defendant’s pleas and admissions. For example, the record is devoid of evidence that the court rejected the plea agreement or that the parties were ordered to return to Judge Devlin to pick a jury. We therefore conclude that the court did not abuse its discretion by denying the defendant’s motion to withdraw his pleas and admissions.

II

The defendant claims that his pleas and admissions were not knowing, intelligent and voluntary due to the ineffective assistance of counsel. We disagree.

“[A] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. . . . Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Morales, supra, 121 Conn. App. 774; see also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a [claim of ineffective assistance of counsel]. See Strickland v. Washington, supra, [466 U.S.] 687.” Faraday v. Commissioner of Correction, 107 Conn. App. 769, 773-74, 946 A.2d 891 (2008). “[I]t is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) Id., 774.

In ruling on the defendant’s motion to withdraw his pleas, the court stated: “I conclude that the defendant failed to show that he was denied the effective assistance of counsel. Among his claims is the argument that . . . Silverstein did not adequately investigate the background of the complainants and the strength of the state’s case. I find that under the facts of this case, the investigation was adequate. . . . [I]n making that finding, I find . . . Silverstein’s explanation to be credible. The defendant has, moreover, failed to meet his burden of showing that but for the claimed lack of investigative work, he would not have pleaded guilty or that there would have been a different result.”

On the basis of our review of the record, we conclude that the court properly denied the defendant’s motion to withdraw his pleas due to the ineffective assistance of counsel. The defendant claims that Silverstein failed to conduct an adequate investigation, but he has not demonstrated what information an “adequate” investigation would have produced. The defendant wanted to see the transcript of or hear the 911 tapes. Silverstein provided the defendant with the tapes at the time the Bridgeport case was called for jury selection. The defendant has not explained how the interrelationship between Silverstein’s representation and the guilty pleas caused the pleas not to be voluntary and intelligent. Moreover, the defendant has not produced facts that Silverstein would have discovered if his investigation had been different and how those facts would have affected the knowing and voluntary nature of the guilty pleas.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was charged in five separate informations.

       The defendant pleaded guilty to attempt to commit risk of injury to a child and risk of injury to a child pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Under an Alford plea, “a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d 248 (2008).

       We decline to review this claim regarding the factual basis of the defendant’s pleas, as he did not raise it in his motion to withdraw or at the hearing on that motion. See State v. Rodriguez-Roman, 297 Conn. 66, 95, 3 A.3d 783 (2010). The defendant’s claim is not entitled to review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as it is not of constitutional magnitude. See State v. Niblack, 220 Conn. 270, 281, 596 A.2d 407 (1991) (state courts under no constitutionally imposed duty to establish factual basis for guilty plea prior to acceptance unless court put on notice of need for such inquiry).

       See footnote 2 of this opinion.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); see also footnote 2 of this opinion.

       The court also discussed the immigration consequences of a guilty plea if the defendant were not a citizen of the United States. That is not an issue here.

       The court file contains a form entitled “Request for Continuance of a Pre-Sentence Investigation,” which was addressed to Judge Thim by a probation officer. The form states in part: “On 1/27/10, [the defendant] appeared in Bridgeport Superior Court before [Y]our Honor. At that time a Pre-Sentence Investigation Report was ordered to be completed for sentencing presently schedule for 3/19/10. At this time, I am requesting a continuance to 4/1/10 so that the report may be completed.” Judge Thim signed the form on February 16, 2010.

       The court granted Silverstein’s motion to withdraw as counsel on April 27, 2010.

       The amended motion, filed pursuant to Practice Book §§ 39-26 and 39-27, asserted, in part, that at the time the defendant pleaded, “the court did not determine, by addressing the defendant personally in open court, that the plea[s] [were] voluntary and [were] not the result of force or threats or of promises apart from the plea agreement, which was a prerequisite to acceptance of the pleas and admissions. Practice Book § 39-20. . . . [T]he court did not accept the defendant’s pleas and admissions, and, as a result, the defendant has a right to withdraw those pleas and admissions. Practice Book § 39-26. . . . The defendant’s pleas were entered without knowledge of the nature of the charge or without knowledge that the sentence to be imposed could be imposed. . . . The defendant’s pleas resulted from the denial of effective assistance of counsel.” (Internal quotation marks omitted.)

       During his argument, Bruckmann acknowledged that one could find that the court implicitly had accepted the defendant’s pleas.

       The court ruled, stating: “The court implicitly accepted the plea, and at the time the defendant was advised that as long as the agreement is honored, he would not be able to withdraw his pleas. The defendant acknowledged that he understood that rule. And with respect to the acceptance of the plea and the court having implicitly accepted the plea, I found a federal case on point, United States v. Morales-Sosa, 191 F.3d 586 (5th Cir. 1999).”

       The defendant failed to provide an analysis of his state constitutional claim. We therefore decline to afford it review. See State v. Martinez, 115 Conn. App. 426, 429 n.4, 973 A.2d 120, cert. denied, 293 Conn. 914, 978 A.2d 1113 (2009).

       Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his . . . plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . .
      “(4) The plea resulted from the denial of effective assistance of counsel .. . .”

       Practice Book § 39-20 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       “See, e.g., State v. Robinson, 227 Conn. 711, 731, 631 A.2d 288 (1993) (failure to use talismanic words does not indicate failure to make necessary determination); State v. Onofrio, 179 Conn. 23, 45, 425 A.2d 560 (1979) ([t]here is no talismanic ritual of words that must be spoken by a dying declarant to render statements admissible); State v. Peters, 89 Conn. App. 141, 146, 872 A.2d 532 (the fact that the court did not use the specific words psychiatric disabilities does not warrant reversal under the plain error doctrine), cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); State v. Peters, 40 Conn. App. 805, 823, 673 A.2d 1158 (jury charge not improper for failure to recite talismanic words), cert. denied, 237 Conn. 925, 677 A.2d 949 (1996).” (Internal quotation marks omitted.) State v. Wright, supra, 114 Conn. App. 470 n.1 (DiPentima, J., concurring).

       In Morales-Sosa, the United States Court of Appeals for the Fifth Circuit concluded that the District Court implicitly had accepted a guilty plea even though it had failed to state explicitly that it was doing so. The Court of Appeals noted that if the plea had been rejected, pursuant to rule 11 (e) (4) of the Federal Rules of Criminal Procedure, the District Court was required to inform the parties that it was rejecting the agreement and to inform the defendant, Miguel Morales-Sosa, personally, that it was not bound by the agreement. The Court of Appeals was persuaded that the District Court implicitly had accepted the plea agreement, given that the District Court did not follow the procedures of rule 11 (e) (4), and Morales-Sosa received the benefit of the plea agreement in the dismissal of the original indictment and a downward departure from the applicable sentencing guidelines. The Court of Appeals concluded that Morales-Sosa’s substantial rights were not affected by the District Court’s failure explicitly to accept the plea agreement. United States v. Morales-Sosa, supra, 191 F.3d 588.

       During direct examination by the prosecutor, Silverstein testified, in part, with regard to the Fairfield case and the violation of probation cases as follows:

        “Attomey Silverstein: I was really close to working [the Fairfield case and the violation of probation cases] for no jail, because ... I detected a reluctance on [the part of the young prosecutor] to go forward and also a reluctance on the part of the complainant in that case to testify. There was some discussions with ... his mother about he really would prefer not to come into court and be subjected to cross-examination. But before that occurred, obviously, [the defendant] picked up this kidnapping and risk of ipjury case, [and the files were transferred to part A and a more experienced prosecutor].”
      With regard to his investigation of the Bridgeport case, Silverstein testified as follows:
      “Attorney Silverstein: But in regard to the private investigator, based on information I had, a private investigator ... I didn’t think it was necessary. ... [I]t was a waste of money. I mean, I heard the two things [the defendant] wanted to investigate; one, the color of his car. I mean, that’s a given. The car was impounded. It was described as blue by the [teen]; it was black, or it was brown; it was green .... [T]here was a 911 call when [the teen] gave five out of the six numbers on the license place and described the truck other than the color, which was a shade off. That’s going nowhere.
      “It was my recollection that [the defendant] gave an oral statement to the police in regard to his whereabouts that evening. So, it’s not as if I’m gonna get anywhere with a private investigator to prove that the car was somewhere else. That was a nonissue.
      “In regard to the minor himself; investigate the minor, that’s nothing, you know. [A]n investigator, what’s he gonna do? I mean, he can’t get into the juvenile records, all right. I could probably have access to those. Should [the prosecutor] call him, I would have made that request. As far as . . . veracity and truthfulness in bringing in people to impeach a fourteen year old who makes a phone call almost spontaneous to the event . . . you’re not gonna get anywhere with that.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    MARCEL ST. GERMAIN, SR. v. ROBERT ST. GERMAIN
    (AC 33126)
    DiPentima, C. J., and Gruendel and West, Js.

      Submitted on briefs February 1
    officially released May 8, 2012

      Eddi Z. Zyko filed a brief for the appellant (defendant).

      William J. Ward filed a brief for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, Robert St. Germain, appeals from the judgment of the trial court rendered in favor of the plaintiff, Marcel St. Germain, Sr., for breach of contract arising from the sale of certain real property and on the defendant’s counterclaim. On appeal, the defendant claims that the court improperly (1) found that a contract existed between the parties, (2) found that equitable estoppel barred his statute of frauds defense and (3) rejected his special defenses and counterclaim. We disagree and, accordingly, affirm the judgment of the trial court.

The following uncontested evidence was presented at trial. The parties are brothers. In 1988, the plaintiff, the defendant and their other brother, Paul St. Germain, purchased the subject real property located at 1048 West Main Street in Waterbury, from their mother. Two years later, Paul St. Germain transferred his interest in the property to the defendant and the plaintiff. After Paul St. Germain’s transfer of his interest in the property, the defendant was the only party who used the property. On one part of the property, the defendant operated a chair company, while another part was rented out.

In finding in favor of the plaintiff on his breach of contract claim, the court found the following facts. At some point in 1999, the parties entered into an oral agreement whereby the plaintiff agreed to transfer his interest in the property by quitclaim deed to the defendant, and the defendant agreed to pay the consideration set forth in the deed when the plaintiff retired. On November 12, 1999, the plaintiff signed, and the defendant accepted, a quitclaim deed conveying the plaintiffs interest in the property for $29,243.47, which the plaintiff did not receive at that time. The plaintiff retired in February, 2005, and requested the $29,243.47 payment from the defendant pursuant to their oral agreement and as set forth in the quitclaim deed. The defendant did not make the requested payment to the plaintiff. A physical altercation took place between the parties on May 10,2007, when the plaintiff went to the defendant’s home to collect the money.

On October 9, 2007, the plaintiff filed this action, seeking monetary damages for breach of contract. The defendant filed a reply asserting eight special defenses and an eight count counterclaim. The plaintiff filed an answer to the defendant’s counterclaim denying all allegations. Following a trial to the court, the court concluded that the doctrine of equitable estoppel barred the defendant from asserting his statute of frauds defense because allowing the defendant to assert that defense “would be tantamount to the defendant perpetrating a fraud on the plaintiff.” In reaching that conclusion, the court found that all of the elements of part performance of the contract were present. On the plaintiffs claim of breach of contract, the court rendered judgment in favor of the plaintiff in the amount of $29,243.47. The court rejected the defendant’s counterclaim, finding that the plaintiffs conduct during the parties’ May 10,2007 physical altercation did not constitute assault and battery, negligence per se or recklessness. On the same basis, the court rejected the defendant’s special defense that the plaintiff had unclean hands. This appeal followed.

On appeal, the defendant claims that the court improperly (1) found that a contract existed between the parties, (2) found that equitable estoppel barred his statute of frauds defense and (3) rejected his special defenses of unclean hands and setoff, as well as his counterclaim alleging assault and battery, negligence per se, and recklessness. Additional facts will be set forth as necessary.

We now set forth the applicable standard of review. “An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C., 127 Conn. App. 746, 753, 15 A.3d 1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011).

I

First, the defendant argues that there was no contract in existence between him and the plaintiff. “The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.” (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn. App. 800, 813, 3 A.3d 992 (2010). “In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . . . [A]n agreement must be definite and certain as to its terms and requirements.” (Internal quotation marks omitted.) Tsionis v. Martens, 116 Conn. App. 568, 577, 976 A.2d 53 (2009).

The record before us reveals that the court did not expressly find that a contract existed between the parties. Because, however, the court found in favor of the plaintiff on his breach of contract claim and the elements of a breach of contract action include the formation of an agreement, the court must have found that a contract existed. See Harley v. Indian Spring Land Co., supra, 123 Conn. App. 813 n.12. Although the court, in its memorandum of decision, thoroughly discussed the evidence presented at trial which would support a finding that a contract existed, it did not set forth the basis of its finding. We conclude that the court’s implicit finding that a contract existed between the parties was not clearly erroneous because it was supported by the evidence presented at trial.

II

Next, the defendant claims that the court improperly applied the doctrine of equitable estoppel in barring the defendant from asserting a statute of frauds defense. We disagree.

Whether a party has met his burden of proving equitable estoppel is a question of fact. Celentano v. Oaks Condominium Assn., 265 Conn. 579, 614, 830 A.2d 164 (2003). “Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct. ... In its general application, we have recognized that [t]here are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . This court previously has applied the doctrine of equitable estoppel to bar a party from asserting the statute of frauds as a defense so as to prevent the use of the statute itself from accomplishing a fraud.” (Citations omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005).

Here, the court rejected the defendant’s statute of frauds defense on the basis of equitable estoppel because it found part performance by the defendant. “[T]he elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party’s actions in reliance on the contract; and (3) acts that unmistakably point to the contract. . . . Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds. . . . First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself. . . . Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud.” (Citations omitted; internal quotation marks omitted.) Id., 62-63.

Here, the court found all of the elements of equitable estoppel. The court found that “the plaintiff has demonstrated not only his reliance on the quitclaim deed and the terms contained therein, but part performance in executing and delivering the quitclaim deed prepared by the defendant’s attorney.” In summary fashion, the defendant argues that the court ignored “long-standing equity jurisprudence” by incorrectly applying the doctrine of equitable estoppel. On the basis of our review of the record, we cannot conclude that the court improperly applied the doctrine.

Ill

Finally, the defendant claims that the court improperly rejected the counts of his counterclaim alleging assault and battery, negligence per se and recklessness and his special defenses of unclean hands and setoff. The defendant’s counterclaim and special defenses are based on the May 10, 2007 physical altercation that occurred between the parties. Both parties testified as to the details of the encounter. The court credited the plaintiffs account. In its memorandum of decision, the court stated that “[t]he credible testimony of the plaintiff was that when the plaintiff approached the defendant about paying the amount due to him in the quitclaim deed, the defendant got in his face and told him he was not going to do anything about compensating the plaintiff for his conveyed interest in the [property] . . . [the plaintiff] pushed the defendant away from him and the defendant got back in his face again. . . . [E]ach time he pushed [the defendant] away after that, the defendant got right back into his face.” The court stated in its memorandum of decision that it did not credit the defendant’s testimony regarding the physical altercation. The defendant’s appellate brief purports to challenge the court’s legal determinations with regard to his counterclaim and special defenses, however, the defendant essentially is challenging the court’s credibility determination regarding the parties’ accounts of the physical altercation. The defendant has not given us any reason to depart from the general rule that this court will not revisit credibility determinations. See Sapper v. Sapper, 109 Conn. App. 99, 108-109, 951 A.2d 5 (2008). In light of the court’s findings of credibility, we cannot conclude that the court’s factual findings regarding the parties’ physical altercation were clearly erroneous. On the basis of our review of the record, we conclude that the court properly rejected the defendant’s counterclaim and special defenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       In August, 2005, the defendant sent the plaintiff a note acknowledging his obligation to the plaintiff pursuant to their oral agreement with an enclosed check for $1000. The defendant stated in the note that the next payment would be sent in January, 2006, and every six months thereafter and that if the defendant was financially able, he would send more money to the plaintiff. Although the defendant at trial testified that the $1000 check was a gift, the court found this testimony to be not credible. At the defendant’s deposition, he had stated that the $1000 check to the plaintiff was to go toward payment for the property.

       The defendant asserted the following special defenses: (1) unclean hands, (2) insufficiency of the complaint, (3) estoppel, (4) waiver, (5) the statute of limitations, (6) setoff, (7) accord and satisfaction and (8) payment in full. The defendant also asserted an eight count counterclaim alleging: (1) unclean hands, (2) negligence, (3) negligence per se, (4) recklessness, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (8) assault and battery. Shortly before the trial commenced, the defendant withdrew his special defenses of insufficiency of the complaint, estoppel, waiver, the statute of limitations, accord and satisfaction and payment in full. The defendant also withdrew the counts of his counterclaim alleging negligence, intentional infliction of emotional distress, negligent infliction of emotional distress and violation of CUTPA.
      We note that in the first count of his counterclaim, the defendant incorporated his first special defense that the plaintiffs hands were unclean. Unclean hands is a special defense, not an independent claim. See Kosinski v. Carr, 112 Conn. App. 203, 209 n.6, 962 A.2d 836 (2009). The defendant withdrew this count prior to the commencement of the trial.

       On the basis of the court’s rejection of the defendant’s counterclaim, it consequently found that the defendant was not entitled to any setoff against the judgment rendered in favor of the plaintiff.

       “In the context of the statute of frauds . . . [our courts] sometimes have referred to the application of estoppel as the doctrine of part performance.” (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., supra, 274 Conn. 62. Our Supreme Court has stated: “[Although this court on occasion has used the terms interchangeably, we never have intended that the doctrine of equitable estoppel and the doctrine of part performance operate as independent exceptions to the statute of frauds. . . . Rather, part performance is an essential element of the estoppel exception to the statute of frauds.” (Citations omitted.) Id., 63.


author: GRUENDEL, J.

text:
    SCOTT W. EISENLOHR v. PAMELA EISENLOHR
    (AC 33390)
    Gruendel, Beach and Schaller, Js.

      Argued March 19
    officially released May 8, 2012

      Pamela Eisenlohr, pro se, the appellant (defendant).

      Erich H. Gaston, with whom, on the brief, was Patrick J. Heeran, for the appellee (plaintiff).

      Dina M. Menchetti, guardian ad litem for the minor child.
   Opinion

GRUENDEL, J.

The self-represented defendant, Pamela Eisenlohr, appeals from the judgment of the trial court granting the postjudgment motion to modify a custody order filed by the plaintiff, Scott W. Eisenlohr. The defendant raises a bevy of claims that do not merit discussion. She further claims that the court (1) abused its discretion in modifying the custody order, (2) violated her constitutional right to due process, (3) improperly entered orders restricting her ability to seek modification of its custody and parenting access orders and (4) improperly predicated its decision in part on the theory known as parental alienation syndrome. We affirm the judgment of the trial court.

The record discloses the following undisputed facts. The parties married in 1991, and one child was bom of the marriage. Following the subsequent breakdown of their marriage, the parties voluntarily entered into a comprehensive separation agreement that the court incorporated into its judgment of dissolution. It provided, inter alia, that the parties would have joint legal custody of their minor child, whose primary residence would be with the defendant. On March 15, 2005, the court dissolved their marriage, finding that it had broken down irretrievably without attributing fault to either party.

On July 28, 2010, the plaintiff moved to modify the custody order, alleging that “there has been a change in circumstances in that the defendant has continually and unilaterally denied the plaintiff his parenting access, without cause or justification. The defendant’s actions have been and are currently subject to postjudgment motion practice. . . . [The] defendant has a history of alienating the minor child from the plaintiff and denying the plaintiff his parenting rights without either reprimand or repudiation. Since the judgment of dissolution, [the] plaintiff has filed approximately fourteen . . . motions for contempt against the defendant seeking to enforce his visitation rights with the minor child. . . . The defendant’s actions are detrimental to the minor child and are not in [her] best interests . . . For those reasons, the plaintiff requested sole physical custody of the minor child. The plaintiff thereafter filed motions for contempt and an order regarding parenting access. Following a hearing, the court, Ginocchio, J., on December 1, 2010, granted the latter two motions, finding that the defendant wilfully had violated the existing parenting orders. The court also found that the defendant had engaged in actions harmful to the best interests of the minor child, and therefore issued temporary orders granting the plaintiff sole physical custody pending further proceedings on his motion to modify the custody order.

The defendant subsequently filed motions for compliance and modification that sought to lift the temporary orders and to return physical custody of the minor child to her. Following three days of hearings, the court, Danaher, J., on March 24, 2011, denied the defendant’s motions and granted the plaintiff’s July 28, 2010 motion to modify the custody order. In its oral ruling, the court found that the minor child was in a healthier environment since physical custody was transferred to the plaintiff, stating that she “has benefited significantly from living exclusively with the plaintiff: emotionally, educationally and physically. The plaintiff has provided the minor child with appropriate structure and has made exceptional efforts to try to not only be a caring, effective father, but also to support an appropriate relationship between the minor child and [the defendant].”

By contrast, the court expressly found that the defendant was “not truthful.” The court further found that “[t]he defendant has not demonstrated any meaningful effort to have an appropriate relationship with either the minor child or the plaintiff. Throughout these proceedings, the defendant seldom misses an opportunity to criticize the plaintiff for any perceived shortcoming, often focusing on the most trivial of issues. . . . Despite the [temporary] orders issued by the court . . . the defendant has continued to wrongfully engage in efforts to manipulate the minor child by engaging in prohibited adult conversations with the minor child. I base this finding not only on the testimony by the guardian ad litem, but also by the court’s review of recorded telephone conversations between the defendant and the minor child, which were introduced by the defendant herself. . . . The defendant has been found to have engaged in wrongful manipulation of the minor child by, among others, the following unbiased parties: the family relations counselor, the guardian ad litem, the department of children and families [department], and the Hon. James [P.] Ginocchio. The defendant, as recently as yesterday, rejected all of the foregoing opinions. In summary, the defendant is in complete denial. . . .

“The defendant fails to recognize that she is manipulative, and her ongoing course of manipulative conduct has had the following effects that are adverse to the child’s best interest. The resources of the family have been severely tested, thus ensuring that those resources are not available to be used for the benefit of the minor child. Second, the defendant has filed . . . numerous pleadings and complaints that have resulted in unnecessary litigation. Further, the defendant has frequently interacted with the minor child in an inappropriate manner and in an effort to manufacture a basis for some of her filings. Third, the defendant has caused the initiation of baseless [department] investigations, the effect of which have been (1) to subject the minor child to needless interviews that have had serious adverse effects upon her emotional well-being; (2) to place the plaintiffs employment at risk, and the consequences of an adverse impact on the plaintiffs employment would be to diminish the plaintiffs resources further, which, in turn, would be greatly detrimental to the minor child; and (3) to waste valuable [department] resources that were used to investigate meritless claims. Fourth, to date, the only [department] investigation that has ended in a substantiated allegation is the most recent investigation that concluded that the defendant visited emotional abuse upon the minor child. Subsequent to the entry of temporary orders on December 1, 2010, the defendant has made repeated efforts to circumvent those orders.”

Days later, the court issued a twenty-one page written ruling on the plaintiffs motion to modify the custody order that contained extensive orders. In that ruling, the court found both that the plaintiff met his burden of proving a substantial change in circumstance warranting the change in the primary residence of the minor child and that it was in the minor child’s best interests that the plaintiff have sole legal and physical custody of her. The court emphasized that when it “temporarily gave sole custody to the plaintiff on December 1, 2010, the court found that the defendant had made baseless complaints to the [department], that the defendant was making efforts to cause the minor child to hate [the plaintiff], that the defendant was manipulating the minor [child] for the express purpose of creating evidence that would result in limiting the plaintiffs access to [the minor child], and that the defendant was causing emotional harm to her .... [T]he defendant’s misconduct continued after the orders were issued on December 1, 2010. . . . The defendant fails to recognize that she is manipulating and damaging her minor child, despite the findings of numerous unbiased parties, all of which findings have been well supported and clearly communicated to her.” On that basis, the court ordered that the plaintiff “shall have sole physical custody and legal custody of the minor child.”

The court also entered detailed orders regarding the defendant’s filing of motions in the matter. With respect to modification of its custody orders, the court ordered as follows: “Because of the defendant’s pattern and practice of interfering with the plaintiffs relationship with the minor child, the defendant’s refusal to communicate appropriately with the minor child or the plaintiff, and, inter alia, her refusal to foster or support a relationship between the minor child and the plaintiff, sole physical and legal custody of the minor child is hereby vested in the plaintiff, postjudgment. The defendant may only move for modification of the physical and legal custody arrangements once she has completed all additional coparenting classes and/or training recommended by the defendant’s therapist. As a further condition precedent to the defendant being able to move for modification, she shall successfully complete an intensive therapy program .... Further, as respecting possible modification, because of past issues of the defendant failing to comply with orders of the court; providing token compliance with orders of the court while ignoring the spirit and intent of the orders, including the orders dated December 1,2010; the defendant’s lengthy pattern of contemptuous conduct; the expenses and financial waste caused by the defendant; the substantial financial drain on the resources of the plaintiff and the guardian ad litem caused by the defendant; the pattern of parental alienation; prior false reports of abuse and/or neglect to governmental entities; and the need for repose on the part of the minor child, it is anticipated that in addition to satisfaction of the foregoing conditions, no modification motion is permitted to be filed by [the] defendant regarding the sole physical and/or sole legal custody arrangements, except in the case of the plaintiffs total and permanent disability as determined by the Social Security Administration, unless the following conditions are satisfied: prior to filing or serving such a modification motion, the defendant shall (a) provide a copy of the proposed motion to the court in Litchfield by lodging the proposed motion with the clerk of the court as well as copies of all supporting evidence to be offered in support of the proposed motion; (b) the court shall determine whether the proposed motion is in good faith and is not vexatious, in bad faith, and/or is not otherwise in the best interests of the minor child; and (c) the proposed motion shall not be served, scheduled, heard, or placed on the calendar if the court determines that the motion does not comport with the foregoing criteria.”

With respect to modification of its parenting access orders, the court ordered that “ [u]pon a maj ority recommendation of the supervised parenting access provider, the defendant’s therapist and the minor child’s therapist, the defendant may move that her parenting access be modified to supervised parenting access by a responsible third party. Such a motion shall not be filed for at least six months from the date of this order.” Lastly, the court ordered that “[t]o protect the minor child from further litigation [and] to protect the integrity of the court’s judgment . . . [i]n the event that the defendant makes any false representation in [any] proposed motion or supporting documentation, [the defendant] shall be subject to sanctions, attorney’s fees and all other remedies available to the court.” From that judgment, the defendant appeals.

I

The defendant first claims that the court abused its discretion in modifying the custody order. The authority of the court to modify custody orders is found in General Statutes § 46b-56 (b), which provides in relevant part that “[i]n making or modifying any [custody] order . . . the court shall enter orders . . . that serve the best interests of the child . . . Although a court also “must find that there has been a material change in circumstance since the prior order of the court . . . the ultimate test is the best interests of the child.” (Internal quotation marks omitted.) Kennedy v. Kennedy, 83 Conn. App. 106, 113, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). “The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. . . . [W]hether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Id. “In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 497, 886 A.2d 817 (2005).

Our review of the record in the present case reveals no abuse of that broad discretion. The record contains ample evidence substantiating the findings of the court and its ultimate conclusion that modification of the custody order was in the best interests of the minor child.

II

The defendant also alleges a violation of her right to due process, contending that she was entitled to a full trial on the plaintiffs motion to modify the custody order, rather than the three day hearing that transpired on March 22 to March 24, 2011. She never raised her constitutional claim before the trial court and has not sought review of that unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A. 2d 823 (1989), in this appeal. We therefore decline to entertain the merits of that unpreserved claim. See In re Jan Carlos D., 297 Conn. 16, 20 n.10, 997 A.2d 471 (2010) (declining to review unpreserved due process claim because party did not affirmatively request and adequately brief entitlement to Golding review in main brief).

Ill

The defendant further contends that the court abused its discretion in fashioning orders that restricted her ability to seek modification of the custody and parenting access orders in the future. We disagree.

It is well established that “[t]he power of a domestic relations court to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. . . . Decision-making in family cases requires a flexible, individualized adjudication of the particular facts of each case . . . .” (Citation omitted; internal quotation marks omitted.) Taff v. Bettcher, 243 Conn. 380, 387, 703 A.2d 759 (1997). In granting the plaintiffs motion to modify the custody order, the court found that “the defendant has filed . . . numerous pleadings and complaints that have resulted in unnecessary litigation.” Moreover, in imposing the aforementioned restrictions on the defendant’s ability to file motions for modification, the court expressly indicated that this exercise of its discretion was predicated on “past issues of the defendant failing to comply with orders of the court; providing token compliance with orders of the court while ignoring the spirit and intent of the orders, including the orders dated December 1, 2010; the defendant’s lengthy pattern of contemptuous conduct; the expenses and financial waste caused by the defendant; the substantial financial drain on the resources of the plaintiff and the guardian ad litem caused by the defendant; the pattern of parental alienation; prior false reports of abuse and/or neglect to governmental entities; and the need for repose on the part of the minor child . . . .”

This court has expressly condoned the imposition of such conditions on the filing of such motions when the particular circumstances of the case so warranted. See Strobel v. Strobel, 92 Conn. App. 662, 665, 886 A.2d 865 (2005) (court order imposing restrictions on parties’ ability to file any motions or pleadings without prior approval deemed “praiseworthy”); cf. Practice Book § 25-26 (g) (authorizing court to “order that any further motion for modification of a final custody or visitation order shall be appended with a request for leave to file such motion”). We also are mindful that pursuant to General Statutes § 46b-56 (i), the discretion afforded the trial court in fashioning custody orders includes the ability to “order either parent or both of the parents ... to participate in counseling . . . provided such participation is in the best interests of the child.” See also DiGiovanna v. St. George, 300 Conn. 59, 74, 12 A.3d 900 (2011) (§ 46b-56 [i] authorizes “the court to order the defendant to undergo counseling”); Foster v. Foster, 84 Conn. App. 311, 323, 853 A.2d 588 (2004) (concluding that court had statutory authority to order plaintiff to undergo postjudgment counseling in custody case). The counseling ordered in the present case plainly was in the best interests of the minor child, and the defendant has not argued otherwise.

“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. ” (Internal quotation marks omitted.) Gina M. G. v. William C., 77 Conn. App. 582, 588, 823 A.2d 1274 (2003). In light of the foregoing and the troubling facts of this case, we conclude that the defendant has not established that the court abused its discretion in placing conditions on the defendant’s ability to seek modification of its custody and parenting access orders.

IV

The defendant also argues that the court abused its discretion in predicating its decision in part on parental alienation syndrome. Her claim is belied by the fact that the plaintiff presented no expert testimony, and the court made no findings, regarding that theory. Rather, the plaintiff presented an abundance of evidence pertaining to specific acts of coercion and manipulation on the part of the defendant that the court, as the finder of fact, credited. Such considerations are expressly authorized under Connecticut law. Section 46b-56 (c) provides in relevant part that “[i]n making or modifying any order . . . the court shall consider the best interests of the child, and in doing so may consider ... (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute . . . .” Accordingly, the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 67-13, the guardian ad litem for the minor child filed a statement adopting the brief of the plaintiff in this appeal.

       The defendant was represented by counsel at that time.

       The defendant repeatedly exercised her fifth amendment right against self-incrimination during her testimony on March 23, 2011.

         In her reply brief, the defendant concedes that she “could not present to the court an adequate record to review the claim under Golding . . . .”

       The guardian ad litem testified both that the facts of this case warranted the imposition of an order pursuant to Strobel and that such an order “would be best” for the minor child.

       As one court noted, “parental alienation syndrome is a systematic programmed alienation of a child from one parent brought upon by the other parent.” Ellis v. Ellis, 952 So. 2d 982, 992 (Mss. App. 2006); see also A.C.H. v. F.B.S., 247 S.W.3d 921, 926 n.4 (Mo. App. 2008) (parental alienation syndrome is where parent attempts to emotionally alienate child from absent parent). Like other jurisdictions, Connecticut has not passed on the issue of whether parental alienation syndrome is a reliable theory. See, e.g., In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa App. 1994).