author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DONALD ROBERSON
    (AC 20159)
    Lavery, C. J., and Foti and Daly, Js.
    Argued January 22
    officially released March 20, 2001

      James J. Ruane, with whom, on the brief, was James O. Ruane, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Donald Roberson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), burglary in the first degree in violation of General Statutes § 53a-101 (a) (l) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court abused its discretion by denying his motion for a new trial that was based on a claim of newly discovered evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On August 5,1997, the victim, Irwin Clemons, then living in the Marina Village complex in Bridgeport, was eating on a porch in the area. The defendant and three or four other men approached the victim and told him that he was not welcome in the area and that he should not return there. The victim’s roommate, Brian Furse, arrived on the scene, driving his van. The victim walked to Furse’s van, and the defendant followed him. The victim, believing that the defendant was about to pull out a gun, turned around and put the defendant in a bear hug. He felt a gun in the defendant’s back pocket and threw him to the ground, causing the gun to fall. As the victim bent over to get the gun, one of the defendant’s companions, K, shot the victim in the leg. The defendant then picked up his gun and shot the victim in the ankle as he tried to crawl away. The victim crawled to the nearby apartment of Sharon Edwards, who had witnessed some or all of the events. As the victim attempted to enter Edwards’ apartment, he was shot in the chest. The defendant was the only person located near the victim who was in possession of a gun. The victim managed to enter Edwards’ apartment. Meanwhile, the defendant tried to force his way into the apartment while yelling that he was going to shoot the victim. The victim suffered three bullet wounds: One in his chest, one in his ankle and one in his left thigh.

The court severed K’s trial from the defendant’s trial. The defendant was tried first, and a jury found him guilty of the charges on March 27, 1999. Prior to the defendant’s sentencing and while preparing for the trial of K in the companion matter, the prosecutor spoke to Richard Brookings. Brookings stated that he was with the victim on the night of the shooting and that he had observed the victim throw the defendant to the ground, but that he had not seen a gun. He further stated that he had heard a shot come from his right and that he fled the area and went into Edwards’ apartment. He stated that when he was in the apartment, the victim asked him, “Who shot me?” The prosecutor disclosed this information to the defendant’s counsel and also to counsel for K in the companion matter yet to be tried.

The prosecutor provided to counsel for both individuals Brookings’ name and the police reports pertaining to him in a February 16,1999 disclosure. This disclosure occurred one month prior to jury selection in the defendant’s case.

Following Brookings’ testimony in the companion matter, the defendant filed a motion for a new trial on the basis of this newly discovered evidence. The defendant relied on the transcript of Brookings’ testimony, claiming that it showed that (1) Brookings came with the victim to the scene of the incident, although the victim testified at trial that he came to the scene with Furse only, (2) Brookings did not see the gun (3) the victim asked Brookings who had shot him, although the victim testified at trial that the defendant had shot him, and (4) Brookings was in Edwards’ apartment after the shooting occurred and did not see the defendant there.

After the court held a hearing on the defendant’s motion, it concluded that the defendant had not sustained his burden of demonstrating that the evidence could not have been discovered earlier by the exercise of due diligence and that it was likely to produce a different result in a new trial. The court, therefore, denied the motion.

“[0]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). State v. Leavitt,, 8 Conn. App. 517, 524, 513 A.2d 744, cert, denied, 201 Conn. 810, 516 A.2d 886 (1986). As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 194-95, 609 A.2d 1066 (1992).

“A party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.” (Citations omitted.) Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959).

To qualify for a new trial on the basis of newly discovered evidence, “[t]he petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987). This strict standard is meant to effectuate the “equitable principle that once a judgment is rendered it is to be considered final . . . and should be left undisturbed by post-trial motions except for a good and compelling reason.” (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).

When a defendant seeks a new trial for newly discovered evidence, he must have been “diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” (Emphasis in original; internal quotation marks omitted.) Williams v. Commissioner of Correction, 41 Conn. App. 515, 528-29, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

In the present case, the court determined that the evidence could have been discovered earlier but that defense counsel had concluded that the “potential witness had no information valuable to the defense,” and that even if defense counsel had presented the evidence, it was unlikely to produce a different result on a new trial. The court was not persuaded that the evidence would have caused the jury to find the defendant not guilty.

In Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977), our Supreme Court held that “[wjhether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. . . . The plaintiff must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial, or that an injustice has been done. ... It is not sufficient for him to bring in new evidence from which a jury could find him not guilty — it must be evidence which persuades the judge that a jury would find him not guilty.” (Citations omitted; emphasis in original.) See Gray v. State, 51 Conn. App. 689, 693, 725 A.2d 364 (1999).

The prosecutor disclosed Brookings’ name to the defendant’s attorney one month before jury selection. The defendant’s attorney testified that he had checked the telephone book and the city assessor’s records but was unsure if the motor vehicle records were examined in an attempt to locate Brookings. Considering the defendant’s scant search, we cannot conclude that the court improperly determined that the defendant had not demonstrated by a preponderance of the evidence that this “newly discovered evidence” could not have been discovered earlier by the exercise of due diligence. Having so concluded, we need go no further in affirming the court’s denial of the defendant’s motion for a new trial. We will, however, examine the remaining reasons for the court’s denial.

While Brookings’ testimony may have been relevant, material and noncumulative, it nevertheless did not, as the court concluded, “even approach evidence that is so vital to the issues and so strong and convincing that a new trial would probably produce a different result.” The only evidence that might have been significant was the victim’s question, “Who shot me?” The record discloses that the victim was not the only witness to testily as to the shooter’s identity and that he testified in both cases and identified the defendant as the person who had shot him. At best, that evidence could have impeached the victim’s credibility. Under the circumstances of this case, it cannot be said that that evidence would have led the jury to find the defendant not guilty. The court was bound to ask whether the evidence “would have,” and not simply whether it “could have,” produced a different result.

“Where claimed newly discovered evidence would merely affect the credibility of a witness, it is not a ground for a new trial unless it is reasonably probable that on a new trial there would be a different result.” (Internal quotation marks omitted.) State v. Edwards, 10 Conn. App. 503, 515, 524 A.2d 648, cert, denied, 204 Conn. 808, 528 A.2d 1155 (1987). Trial courts are guided by the general principle that a new trial should be granted because of newly discovered evidence only if an injustice was done or it is probable that on a new trial a different result would be reached. Summerville v. Warden, 229 Conn. 397, 425-26, 641 A.2d 1356 (1994).

In this case, the same judge presided at both the trial and the hearing on the motion for a new trial. He was, therefore, “in a uniquely advantageous position to assess whether another trial would produce a different result, given the introduction of the new evidence.” State v. Edwards, supra, 10 Conn. App. 516.

The court did not abuse its discretion by denying the defendant’s motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”
      The jury found the defendant not guilty of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a).

       The defendant filed his motion for a new trial pursuant to Practice Book § 42-53, the due process clause of the federal constitution and article first, §§ 8 and 9, of the Connecticut constitution.
      “Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error. A motion for a new trial under Practice Book § 902 [now § 42-53] is limited to trial errors, and cannot be based upon newly discovered evidence. . . . The defendant must bring a petition under § 904 [now § 42-55] if he wishes to seek a new trial based upon newly discovered evidence.” (Internal quotation marks omitted.) State v. Newton, 59 Conn. App. 507, 511 n.3, 757 A.2d 1140, cert, denied, 254 Conn. 936, 761 A.2d 764 (2000).
      The defendant argued that although his motion stated that it was made pursuant to Practice Book § 42-53, the motion was, in effect, made pursuant to Practice Book § 42-55, which governs motions for a new trial based on newly discovered evidence, because it was made on the basis of the discovery of new evidence. Practice Book § 42-55 provides in relevant part: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. . . .” The trial court noted in its memorandum of decision that “[t]he state has waived any objection to the trial court deciding this motion for a new trial under the applicable tests regarding newly discovered evidence.”

       The state located Brookings shortly after the defendant’s trial. He testified in the companion matter.

       See footnote 4.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    SHAWN ROBINSON v. COMMISSIONER OF CORRECTION
    (AC 19038)
    Schaller, Pellegrino and Dupont, Js.

      Argued September 14, 2000
    officially released March 27, 2001

      Sarah F. Summons, special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, sand Beth Baron, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Shawn Robinson, appeals from the judgments of the habeas court dismissing one petition for a writ of habeas corpus and denying another. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petitions for certification to appeal and improperly rejected his claims of ineffective assistance of counsel. We dismiss the petitioner’s appeal as it relates to one of the judgments of the habeas court and affirm the other judgment.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims. The police arrested the petitioner on October 6,1986, following an armed robbery. He was charged with three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and attempt to commit robbery in violation of General Statutes § 53a-49 (a).

On July 1, 1987, the petitioner pleaded guilty, under the Alford, doctrine, to all of the charges pending against him. In September, 1987, the court sentenced him to a fifteen year term of incarceration, execution suspended after ten years, with five years probation. Attorney Peter Kelly represented the petitioner with respect to these charges.

On January 17, 1990, attorney Mark Beubendorf represented the petitioner in a separate criminal case. During the trial of that case, the petitioner acted erratically, interrupted the court, left the courtroom for extended periods of time and challenged the ethnic makeup of the panel. The court ordered that the petitioner be placed in a room adjacent to the court. Nevertheless, the petitioner continued to scream, pound on the walls and broke a window in the room in which he was being held. As a result, the court found the petitioner guilty of contempt and sentenced him to an additional six months incarceration to be served consecutively to his previously imposed criminal sentence.

On October 14,1997, the petitioner filed two petitions for writs of habeas corpus, claiming ineffective assistance of counsel during each criminal proceeding. On February 5, 1998, the court held an evidentiary hearing on both petitions. At the conclusion of the evidence, the court dismissed the petition related to the 1990 contempt conviction, and, in a written memorandum of decision dated February 17, 1998, the court denied the petition related to the 1987 criminal conviction.

In the course of the habeas hearing, the petitioner sought to raise a new claim. He claimed that at the time he committed the criminal offenses, he was only fifteen years old and, therefore, that his attorney “was ineffective for failing to ensure that a juvenile transfer hearing was conducted.” The petitioner represented that his birthday was on December 18, 1970. If this were, in fact, his date of birth, he would have been fifteen years old at the time he committed the offenses. The habeas court determined, however, that his actual date of birth was April 5, 1970, which meant that he was sixteen years old at the time he committed the offenses.

The petitioner then moved the habeas court for reconsideration, which the court denied on March 20, 1998. On October 27, 1998, the court denied the petitions for certification to appeal on the ground that they were without merit. Additional facts will be discussed where necessary to the resolution of this appeal.

I

The petitioner first claims that the habeas court abused its discretion in denying the petition for certification to appeal from the judgment denying the petition with respect to the criminal conviction. The petitioner claims that the habeas court improperly rejected his claim that Kelly provided him ineffective assistance of counsel. Specifically, the petitioner claims that he gave his Alford plea unintelligently, involuntarily and in violation of General Statutes (Rev. to 1985) §§ 46b-120, 46b-121, 46b-126 (a), 54-76b and 54-76c, and that Kelly should have filed a motion to have the petitioner adjudicated as a youthful offender. Although we conclude that the habeas court should have granted the petition for certification to appeal, we affirm the judgment denying the writ.

A

“[A] disappointed habeas corpus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done.” Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994). The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994), and stated that the petitioner must first show that the habeas court’s decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate that “the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 227, 756 A.2d 1264 (2000); see also Simms v. Warden, supra, 230 Conn. 616-17. If the appeal meets one of the criteria set forth in Simms, the habeas court’s failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, “the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Simms v. Warden, supra, 230 Conn. 612.

The petitioner claims that Kelly should have sought youthful offender treatment for him. A “youthful offender” is a “youth who has committed a crime or crimes which are not class A felonies, who has not previously been convicted of a felony or been previously adjudged a youthful offender . . . .” General Statutes (Rev. to 1985) § 54-76b. Minors who have committed offenses similar to those that the petitioner had committed have been adjudicated youthful offenders by the courts. In one case, a court adjudicated a minor a youthful offender after finding him guilty of theft of a firearm. See State v. Anonymous (83-FG), 190 Conn. 715, 716, 463 A.2d 533 (1983). A court adjudicated a minor a youthful offender after finding him guilty of sexual assault in State v. Eric T., 8 Conn. App. 607, 609, 513 A.2d 1273 (1986). The defendant in that case was accorded youthful offender status because he was between the ages of sixteen and eighteen at the time he committed the offense, and the offense he committed was not a class A felony.

The trial court may exercise its discretion to deny youthful offender status to a defendant when the crime committed is an especially horrendous act. In State v. Sher, 188 Conn. 565, 569, 452 A.2d 115 (1982), our Supreme Court agreed with the trial court’s denial of the defendant’s request for youthful offender status. The defendant, a sixteen year old youth, had been charged with the crimes of sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child. The trial court stated that the defendant had been “ ‘charged with an horrendous sexual offense’ ” and that it could use its discretion to deny youthful offender status. Id., 568. On appeal, our Supreme Court held that the court’s denial did not constitute an abuse of discretion due to the horrendous nature of the crime. Id., 569.

Although counsel in the present case failed to file a motion to have the petitioner treated as a youthful offender, it is clear that the petitioner met the statutory requirements of eligibility for the program: (1) he had reached the age of sixteen by the time he committed the offenses; (2) the crime he committed was not a class A felony; and (3) he neither had been convicted previously of a felony nor taken part in an accelerated rehabilitation program. See General Statutes (Rev. to 1985) § 54-76b. Whether counsel should have applied for youthful offender treatment was an issue debatable among reasonable jurists. See Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We are therefore persuaded that the habeas court abused its discretion in denying the petition for certification to appeal from the judgment denying the petition for a writ of habeas corpus pertaining to the criminal conviction. Although we ultimately agree with the habeas court on the merits of the claims, the petitioner was entitled to have his petition for certification to appeal granted.

B

Having concluded that the habeas court abused its discretion in denying the petition for certification to appeal, we now proceed to a full review of the merits of the petitioner’s claim. The issue before us is whether the habeas court improperly determined that the petitioner’s trial counsel provided effective assistance. The petitioner claims, inter alia, that Kelly failed to advise him properly with respect to the meaning and effect of his Alford plea, failed to apply on his behalf for youthful offender status pursuant to § 54-76c, failed to move for an adult adjudication certification hearing pursuant to § 54-76b, failed to inform the court that the petitioner was illiterate and under the influence of antipsychotic medication and marijuana at the time of his plea, and that counsel manipulated and intimidated the petitioner to plead guilty by telling him that if he did not plead, he would not see his mother again. We agree with the determination of the habeas court that the petitioner was provided with effective assistance of counsel.

To prove ineffective assistance of counsel, the petitioner must meet the two criteria set forth in Strickland v. Washington, 466 U.S. 668,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must prove that his counsel’s performance was deficient and that there is a reasonable probability that but for counsel’s mistakes, the result would have been different. Performance is deficient where counsel made errors that were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment”; id., 687; and that counsel’s deficient performance prejudiced the defense. To satisfy this prong, the petitioner must show that “counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Id. If either prong is not proved, the petitioner cannot prevail. In this case, the petitioner failed to prove either claim.

The petitioner’s first claim is that Kelly failed to advise him properly with respect to the meaning of his Alford plea. It is well established that “this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert, denied, 254 Conn. 943, 761 A.2d 760 (2000), quoting Birch v. Commissioner of Correction, 57 Conn. App. 383, 384, 749 A.2d 648, cert, denied, 253 Conn. 920, 755 A.2d 213 (2000). During the February 5,1998 evidentiary hearing, Kelly testified that although he did not recall any specific conversations that he may have had with the petitioner regarding his Alford plea, it was his general practice to explain the meaning and legal implications of such a plea to his clients. Kelly also testified that he would not have allowed any of his clients to enter a plea unless he was sure that the client had a full understanding of its nature. The habeas court found that the petitioner’s actions in and out of court, including his continual denial of the charges, would have required that Kelly explain the effect and purpose of the plea. The habeas court found that Kelly did not intimidate the petitioner into pleading guilty. The habeas court’s findings demonstrate that Kelly’s actions regarding the alleged failure to advise the petitioner on his Alford plea were not deficient and, thus, did not constitute ineffective assistance of counsel.

The petitioner’s second claim is that Kelly failed to file a motion to have the petitioner adjudicated as a youthful offender pursuant to § 54-76c. At the evidentiary hearing, Kelly testified that it was his general practice to explore all diversionary programs and any other statutory procedures that he could employ to dispose of cases. This would include the youthful offender program. Kelly explained that generally the presiding judge, defense counsel and the state’s attorney would discuss the case and all feasible options off the record in a series of sessions held in the presiding judge’s chambers. It is evident from Kelly’s testimony that he explored the program and found that the court would not grant eligibility for the program in the present situation. Although counsel did not apply for youthful offender treatment, the habeas court determined that counsel explored and discounted the procedure, and that counsel's inaction did not constitute ineffective assistance of counsel. Therefore, the habeas court’s finding that Kelly’s failure to seek to have the petitioner considered for the youthful offender program did not amount to ineffective assistance of counsel was not clearly erroneous.

The petitioner’s third claim is that Kelly failed to file a motion for an adult adjudication certification hearing (transfer hearing) pursuant to § 54-76b. The trial court determined that the petitioner was not fifteen years of age, as he claimed, at the time of the offense. Because he was sixteen years old, a transfer hearing was not statutorily mandated. Therefore, Kelly’s failure to file a motion for an adult adjudication certification hearing did not amount to ineffective assistance of counsel.

The petitioner’s fourth claim is that Kelly failed to inform the court that he was illiterate and under the influence of both antipsychotic medication and marijuana at the time of his plea. During the evidentiary hearing, the court stated that “[i]f the petitioner was unable to read or write in 1987 at the time of his plea, he made a huge step to 1995 when he submitted many writing samples which contained few misspellings, good punctuation and excellent sentence structure.” Furthermore, the court determined that the petitioner clearly responded to questions during his sentencing and appeared unencumbered by any effects of medication or marijuana use. Thus, Kelly’s failure to inform the court that the petitioner was illiterate or under the influence of antipsychotic medication or marijuana at the time of his plea does not demonstrate ineffective assistance of counsel.

The petitioner’s fifth claim is that Kelly manipulated and intimidated him to plead guilty by telling him that if he did not plead, he would not see his mother again. The court commented after the evidentiary hearing that after “[listening to him in court and reading his comments in the sentencing transcript, [it could] not conceive of [the petitioner] being intimidated to plea.” In claiming that Kelly’s actions amounted to ineffective assistance of counsel, the petitioner had alleged a violation of the sixth amendment. On the basis of the evidence presented, the habeas court’s determination was not clearly erroneous. The petitioner failed to establish either deficiency on the part of his trial counsel or prejudice. We agree with the determination of the habeas court that the petitioner was provided with effective assistance of counsel.

II

The petitioner next claims that the habeas court abused its discretion in denying the petition for certification to appeal from the dismissal of the petition for a writ of habeas coxpus with respect to the contempt charges. Specifically, the petitioner claims that he had shown that the issues presented were debatable among jurists of reason.

Our Supreme Court has stated that “[a] writ of error is the sole method of review of a summary criminal contempt proceeding.” Banks v. Thomas, 241 Conn. 569, 585, 698 A.2d 268 (1997). The petitioner thus may not seek habeas review of his claim that his counsel was ineffective during the course of a criminal contempt proceeding. We therefore decline to review this claim.

The judgment denying the petition related to the petitioner’s 1987 criminal conviction is affirmed; the appeal is dismissed as to the judgment dismissing the petition related to the 1990 contempt conviction.

In this opinion the other judges concurred.

        North Carolina v. Alford., 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (”[a]n individual accused ol' crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”).

       The petitioner had been charged with one count of assault in the second degree in violation of General Statutes (Rev. to 1985) § 53a-60 after allegedly assaulting a correctional officer. General Statutes (Rev. to 1985) § 58a-60 (a) provides in relevant part: "A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person ... or (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical ipjury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member.”

       General Statutes (Rev. to 1985) § 54-76b provides in relevant part: “For the purpose of sections 54-76b to 54-76n, inclusive, ‘youth’ means a minor who has reached the age of sixteen years but has not reached the age of eighteen years; and ‘youthful offender’ means a youth who has committed a crime or crimes which are not class A felonies, who has not previously been convicted of a felony or been previously acjjudged a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e, and who is adjudged a youthful offender pursuant to the provisions of said sections. . . .”

       General Statutes (Rev. to 1985) § 54-76c provides: “In any ease where an information or complaint has been laid charging a defendant with the commission of a crime, and where it appears that the defendant is a youth, upon motion of the defendant, his counsel, the state’s attorney or the prosecuting attorney, as the case may be, to the court having jurisdiction that an investigation be made of such defendant for the purpose of determining whether he is eligible to be adjudged a youthful offender, the court shall, but only as to the public, order such information or complaint to be filed as a sealed information or complaint. The court on its own motion may, but only as to the public, order the information or complaint sealed in the case of a youth charged with crime.”

       “Of course, a contemnor whose counsel negligently has failed to file a writ of error in a timely manner could seek habeas corpus relief on the ground of ineffective assistance of appellate counsel.” Banlcs v. Thomas, supra, 241 Conn. 585 n.17. This is not such a claim.


text:
    MARY DENGLER v. SPECIAL ATTENTION HEALTH SERVICES, INC., ET AL.
    (AC 19777)
    Foti, Schaller and O’Connell, Js.

      Argued October 24, 2000
    officially released March 27, 2001

      Ivan M. Katz, for the appellant-cross appellee (plaintiff).

      Kristen Sotnik Falls, with whom, on the brief, was John M. Letizia, for the appellee-cross appellant (defendant Connecticut Hospital Association Workers’ Compensation Trust).
   Opinion

FOTI, J.

The plaintiff, Mary Dengler, appeals from the decision of the workers’ compensation review board (board) affirming in part and reversing in part the decision by the workers’ compensation commissioner (commissioner) dated February 18, 1998. The defendant Connecticut Hospital Association Workers’ Compensation Trust (trust) cross appeals from the same decision. The plaintiff claims that the board improperly (1) required her to prove through expert medical evidence that a leg injury she suffered in 1997 was causally related to a back injury she suffered in 1996, and retried the facts and substituted its own inferences from them in place of those drawn by the commissioner, (2) reversed the commissioner’s finding that she was disabled through the date of the commissioner’s finding and award, and (3) failed to remand the matter to the commissioner for further proceedings rather than reversing his decision. On cross appeal, the trust claims that the board improperly declined to find that the trust had canceled its insurance policy with the plaintiff’s employer, the defendant Special Attention Health Services, Inc. (Special Attention), and concluded that the trust had provided workers’ compensation insurance to Special Attention on August 19, 1996, the date when the plaintiff injured her back. We affirm the decision of the board.

The following facts and procedural history are necessary for our resolution of this appeal and cross appeal. The commissioner found that on August 19, 1996, Special Attention employed the plaintiff as a certified nurse’s assistant. While performing work-related duties at a patient’s home, the plaintiff injured her lumbar spine. Special Attention directed the plaintiff to seek treatment from authorized medical providers. The plaintiff, after receiving treatment from several physicians and obtaining physical therapy, was diagnosed with degenerative disc disease, a lumbar strain and spondylosis. The commissioner found that the plaintiff suffered from a work-related total disability from August 19, 1996, through February 16, 1997.

On February 16, 1997, almost six months after her back injury, the plaintiff “experienced some instability in her lumbar spine, which caused her to drop to her knees in her kitchen.” The commissioner also found that on the same day, the instability in her lumbar spine caused her to fall while descending a stairway at her home. As a result of that fall, the plaintiff sustained a fractured tibia and fibula in her right leg. The commissioner found that “[t]he instability the [plaintiff] experienced on February 16, 1997, was causally related to the back injury she sustained on August 19, 1996.” The commissioner found that the plaintiff had suffered a total disability from August 19, 1996, to February 18, 1998, the date he issued his finding and award. The commissioner found, as well, that the trust had provided workers’ compensation insurance to Special Attention on August 19, 1996. Finding that the plaintiffs claimed injuries were causally related to the injury she suffered on August 19, 1996, and the trust was responsible for any benefits owed to the plaintiff as a result of the August 19, 1996 injury, the commissioner ordered the trust to pay temporary total disability benefits and all medical bills from authorized medical providers accrued from August 19, 1996, until the date of his finding and award.

The trust timely filed a motion to correct the commissioner’s finding and award. The trust proposed, inter alia, that the commissioner’s finding should reflect the fact that the plaintiff injured her leg while running down stairs at her home in response to a dogfight in her backyard. The trust also wanted the commissioner’s finding to include the fact that hospital treatment notes indicated that the plaintiff was chasing dogs in her backyard when she fell into a hole and injured her leg. The trust requested that the commissioner delete his finding that the plaintiffs August 19,1996 injury caused the February 16,1997 injury. Finally, the trust requested that the commissioner add a finding that the trust legally canceled Special Attention’s compensation insurance policy and that he dismiss the claim. The commissioner denied the trust’s motion to correct, and the trust appealed to the board.

The board determined that Special Attention’s policy with the trust remained in effect on August 16, 1996, the date that the trust advised Special Attention in writing that the policy would be canceled because of nonpayment of premiums. The board also concluded that the commissioner improperly found that the plaintiffs back injury caused her leg injury. The board reasoned that the commissioner could not find a causal relationship between those events based solely on the statements of the plaintiff and an eyewitness, and that given the absence of medical evidence in the record as to causal relationship, the plaintiff had failed to prove that her leg injury was attributable to her back injury. The board, therefore, reversed the commissioner’s findings that the plaintiffs back injury caused her leg injury, and that she had suffered a total disability through the date of the commissioner’s finding and award. The plaintiff then appealed and the trust cross appealed to this court. Additional facts will be set forth as they become relevant in the context of the claims before us.

“The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the review board nor this court has the power to retry facts. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” (Citations omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000).

I

The plaintiffs first claim is that the board improperly reversed the commissioner’s decision that her August 19, 1996 work-related back injury caused her leg injuiy. We will discuss the plaintiffs arguments on that claim separately. Essentially, the plaintiff claims that the board improperly required her to prove through expert medical evidence that her leg injuries were causally connected to her back injuiy. The plaintiff also claims that the board improperly retried the facts of the case and substituted its inferences from them for those drawn by the commissioner. We disagree with both claims.

A

The commissioner found that the plaintiffs August 19, 1996 work-related injury caused her leg injury. The plaintiff testified that earlier on the date of her leg injury, February 16,1997, she felt instability in her lumbar spine that caused her to drop to her knees in her kitchen. She also testified that as she was going down stairs later that day, that same feeling of instability in her lumbar spine caused her to collapse and consequently fracture her tibia and fibula. Thomas Iaquessa, the plaintiffs brother and the sole witness to her fall, testified on her behalf and corroborated her version of how she injured her leg. The plaintiff received treatment from several authorized medical providers following the August 19,1996 work-related accident. Many, if not all, of the plaintiffs medical reports were in evidence. The commissioner found a causal relation between her previous back injury and her leg injury, and found that she had been totally disabled since August 19, 1996.

The trust argued to the commissioner, and later to the board, that the plaintiff had failed to prove a causal relationship between the back injury and the leg injury. The trust argued that no medical evidence established the necessary causal link between those events, that a note in a medical record indicated that the plaintiff had fallen in a hole while chasing dogs in her backyard, and that her actions in that regard constituted an “independent, intervening and superseding legal cause of the [leg] injury.”

The board observed that the commissioner’s finding related to the cause of her leg injury rested solely on the statements of the plaintiff and her brother. The board also noted an absence of expert medical evidence on the issue of causal connection, and found that the commissioner’s findings concerning that issue “failfed] to surmount the level of speculation and surmise.” The board ruled that “ [t]he testimony of two lay witnesses as to the circumstances of this injury, without any medical evidence to underpin the claim, is inadequate to establish that the injuiy was caused by the [plaintiffs] back condition.” Accordingly, the board reversed the commissioner’s decision insofar as it found that the leg injury was attributable to the back injury and that the plaintiff was totally disabled through the date of the commissioner’s finding and award.

The standard of review to be used by the board when reviewing a commissioner’s findings is set forth in Regulations of Connecticut State Agencies § 31-301-8. That section directs the board not to retry the case before it, but to determine whether evidence supports the commissioner’s finding. “Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner.” Pereira v. State, 228 Conn. 535, 544, 637 A.2d 392 (1994). “It is well settled in workers’ compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence.” (Emphasis added.) Keenan v. Union Camp Corp., 49 Conn. App. 280,282, 714 A.2d 60 (1998).

In several decisions, our Supreme Court has discussed the need for expert medical evidence to establish the cause of injuries in workers’ compensation cases. In one decision, the court held that expert medical evidence was not necessary to demonstrate a reasonably probable connection between the plaintiffs work and the injury he claimed to have sustained. Garo fola v. Yale & Towne Mfg. Co., 131 Conn. 572, 41 A.2d 451 (1945). The injured plaintiff in Garofola claimed to have suffered a low back sprain while performing his duties as a molder at his workplace. Id., 573. Our Supreme Court found that expert evidence to establish causation for the plaintiffs injuries was unnecessary given the facts in that dispute. Id., 574. The court reasoned that “[i]n the case before us, the commissioner could have concluded that it was much more likely that the sprain occurred from the work in which the plaintiff was engaged, arising, as it did, during performance of the work, than that it occurred from some unknown cause.” Id.

Our Supreme Court revisited the issue of determining when expert evidence is necessary to establish causation in workers’ compensation cases in Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 291 A.2d 743 (1972). The plaintiff in Murchison claimed that she developed numbness in her leg while at work because her employer changed the method by which she performed her duties as a machine operator. Id., 149-50. The plaintiff did not offer expert testimony in support of her contention that the new method caused her injuries. Instead, the plaintiff testified about her injuries, how she believed they were caused and demonstrated for the commissioner the posture from which she performed her work-related duties. Id., 152. Although the commissioner in that case fully credited the plaintiffs testimony concerning the cause of her injuries, on appeal the Supreme Court concluded that the plaintiffs testimony was incompetent to sustain her burden of proof as to causation. Id.

The court in Murchison reasoned that “[i]n the absence of direct medical testimony, the commissioner resorted to speculation and surmise in concluding that the plaintiffs injury arose out of and in the course of her employment. The [trial court which reversed the commissioner’s award] correctly applied the law by finding that medical testimony was necessary to show a causal connection between her employment and injury.” Id. The court distinguished the case before it from Garofola v. Yale & Towne Mfg. Co., supra, 131 Conn. 572, noting that the commissioner did not require expert evidence in Garofola, because in that case the plaintiffs injury was more likely caused by his work rather than by some unknown cause. Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 149. The Murchison court noted further that when “it is difficult to ascertain whether or not the [injury] arose out of the employment, it is necessary to rely on expert medical opinion.” (Internal quotation marks omitted.) Id., 152.

Where an issue of causation for injuries in a workers’ compensation case cannot be answered as a “matter of common knowledge”; Garofola v. Yale & Towne Mfg. Co., supra, 131 Conn. 574; expert testimony on the issue is necessary. In the present case, the plaintiffs leg injury occurred outside of the workplace and several months after she ceased working. The relationship between the plaintiffs work-related back injury and the “instability in her lumbar spine” that she alleges to have experienced and which she claims caused her subsequent fall and leg injury, is not a matter within the common knowledge of the commissioner, the board or this court. Such a theory of cause and effect is not so “in accord with ordinary human experience”; id.; that it obviates the need for expert medical evidence. Given the complex medical issue before him, the commissioner was not at liberty to reason that the plaintiffs leg injury resulted from her back injury simply because it occurred after her back injury. We find the present case to be analogous to Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 142, and conclude that the board correctly applied the law by requiring that the plaintiff prove causation with expert medical evidence.

B

Our discussion in part I A relates to the plaintiffs next claim that the board improperly substituted its own inferences for those drawn by the commissioner when it reversed his finding that the plaintiffs back injury and alleged resulting lumbar instability caused her leg injury on February 16, 1997. The board noted that the commissioner’s decision “was based solely on the statements of the [plaintiff] and an eyewitness,” and that “the most specific reference to the cause of the [plaintiffs] injury, based on the history she provided at the time of her hospitalization, states that she ‘was chasing dogs outside in the yard when she fell into a hole, [caught] her [right] foot and twisted her [right] leg.’ ” The board went on to conclude that the testimony of two lay witnesses, without expert medical evidence, did not establish adequately causation for the plaintiffs injury.

As a preliminary matter, we note that the plaintiff attempts to characterize the board’s decision in this regard as resting on a new and separate finding of fact. In her principal brief, the plaintiff argues that the board “improperly retried the facts and improperly relied on the absence of medical records or expert medical testimony to relate the plaintiffs back condition (resulting from the admittedly compensable injury) to the incident that occurred on February 16, 1997, when she broke her leg. This was error.” Although it is clear from our earlier discussion that the board is prohibited from retrying the case or substituting its inferences for those drawn by the commissioner, the board certainly was free to examine the record to determine whether competent evidence supported the commissioner’s findings, inferences drawn from such findings and conclusions. “The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Internal quotation marks omitted.) Hebert v. RWA, Inc., 48 Conn. App. 449, 453, 709 A.2d 1149, cert, denied, 246 Conn. 901, 717 A.2d 239 (1998). Inferences may only be drawn from competent evidence. “Competent evidence” does not mean any evidence at all. It means evidence on which the trier properly can rely and from which it may draw reasonable inferences.

As we explained in part I A, the board properly concluded that the plaintiff could not prove causation for her leg injuries in the absence of expert medical evidence. The commissioner clearly found the plaintiff and her witness to be credible. The board did not disbelieve the plaintiff and her witness with respect to the matters on which they were competent to testify in favor of a different account of what occurred on February 16, 1997. The law clearly prohibits the board from doing so. The board noted that the only mention of causation in the medical records and reports consisted of a note in a hospital record stating that the plaintiff had tripped in a hole in her backyard. The board did not retry the facts or draw different inferences from the competent evidence before the commissioner. It referenced the hospital note not to credit it, but to show that it contained the only discussion of causation in the medical records.

When the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner. O'Reilly v. General Dynamics Corp., 52 Conn. App. 813, 819, 728 A.2d 527 (1999). A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Funaioli v. New London, 61 Conn. App. 131, 136, 763 A. 2d 22 (2000). Here, the board did not substitute its own findings; instead it concluded that in the absence of competent evidence on the issue of causation, the commissioner’s decision could not stand.

The plaintiff cites Keenan v. Union Camp Corp., supra, 49 Conn. App. 280, for the proposition that the board could not base its decision on a different weighing of the evidence than that of the commissioner. Keenan is distinguishable from the present case. The plaintiff in Keenan claimed that injuries he sustained when he fell down a flight of stairs resulted from an earlier compensable back injury he sustained during the course of his employment. Id., 284. The board reversed the commissioner’s decision to award the plaintiff benefits for those injuries. Id., 282. The board reasoned that because the commissioner failed to cite any expert medical evidence concerning causation in her findings, she was barred from relying on such evidence in reaching her award. Id., 284.

In Keenan, we reversed the decision of the board and upheld the commissioner’s award, reasoning that nothing required the commissioner to “patently state every piece of credible evidence or testimony that contributed to the rendering of her decision.” (Emphasis in original.) Id., 285. We upheld the award because the “commissioner had before her various medical reports and opinions, medical records and testimony from which she could properly determine whether [the plaintiffs] fall . . . was causally related to his prior, compensable . . . injury.” Id., 285-86. In contrast, the plaintiff in the present case failed to submit any such necessary expert medical evidence to the commissioner.

II

The plaintiff next claims that the board improperly reversed the commissioner’s finding that she was disabled from August 19, 1996 (the date of her back injury) through February 18,1998 (the date of the commissioner’s finding and award). We disagree.

The following additional facts are necessary to our resolution of the plaintiffs claim. The parties do not dispute the compensability of the plaintiffs August 19, 1996 back injury. The plaintiffs treating physician diagnosed her as having sustained a work-related injury. Following that injury, the plaintiff received treatment from several physicians. The commissioner found that the plaintiffs August 19, 1996 back injury was work-related and compensable. The board did not disturb that finding.

When it reversed the commissioner’s finding that the plaintiff had suffered from a total disability through the date of the commissioner’s finding and award, February 18, 1998, the board noted that “[t]here is no medical evidence to support a finding that the [plaintiffs] back condition played any part in her disability after February 16, 1997, the date she broke her leg.” The plaintiff argues that this is another example of the board substituting its judgment for that of the commissioner. The plaintiff submits that her employer bore the burden of proving any change in her medical condition warranting a change in her benefit status.

Our review of the record reveals that as of February 16, 1997, the plaintiff had not been released to return to work. The plaintiff did not, however, produce expert medical evidence that she suffered from a total disability and would never be able to return to work following her back injury. In her principal brief, she points to several excerpts from her medical records in which her symptoms following the back injury are recorded. She also notes that Gary Bloomgarden, one of the physicians who treated her injuries, stated, in reference to her back injury, that “[h]er long-term prospects for returning to work are close to nil, and I feel that this is a work-related injury . . . .’’As with our earlier discussion in part I, we look to whether competent medical evidence supports the commissioner’s finding and award.

Bloomgarden’s October 31, 1996 report is on point. That report states that as of October 31,1996, the plaintiff was unable to return to work as a result of her work-related injury. A complete review of his report does not, however, support a finding of a total disability caused by the work-related back injury. Although Bloomgarden stated in his report that “[the plaintiffs] long-term prospects for returning to work are close to nil, and I feel that this is a work-related injury,” he went on to state that “it is difficult for me, however, to tell . . . what degree is preexisting and what degree is current from the August [19, 1996] injury.” He also stated that “she certainly has preexisting lumbar degenerative disease . . . [from] her years of working as a [certified nurse’s assistant]. At this point, it is unjustifiable to suggest a disability assessment, and that includes a preexisting disability assessment.” That statement reflects uncertainty, in the first instance, over the cause of the plaintiffs back injury.

The plaintiff bore the burden of proving an incapacity to work, and “total incapacity becomes a matter of continuing proof for the period claimed.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42, 668 A.2d 1346 (1996). The plaintiff argues that nothing in the record supports the board’s decision because nothing in the record reflects a change in her back condition. The law does not require the trust to prove that the plaintiff was not totally disabled because the plaintiff did not prove the existence of a total disability caused by her work-related injury in the first instance. No competent evidence in the record supports a finding that the plaintiff suffered from a total disability from the date of her work-related injury on August 19, 1996, until February 18,1998. Any such conclusion could only result from “inference [s] illegally or unreasonably drawn from” the subordinate facts; (internal quotation marks omitted) Kolomiets v. Syncor International Corp., 252 Conn. 261, 265, 746 A. 2d 743 (2000); because the competent medical evidence does not support the conclusion that the plaintiff was totally disabled in that time period.

Our review of the record discloses that the plaintiffs medical providers found that she could perform some work-related duties, albeit sedentary duties, as early as October 2, 1996, and November 13, 1996. Furthermore, as previously discussed, the plaintiffs medical records reflect uncertainty over the cause of her medical disability. Although the plaintiffs medical records document many of her complaints, nowhere does a competent medical provider state with reasonable medical certainty that work-related lumbar instability caused her to fall and injure her leg. The limited number of medical reports in the record concerning the plaintiffs leg injury does not indicate either that she could not return to work in any capacity or that a work-related injury rendered her totally disabled. The competent evidence in the record does not support an award of disability benefits following the plaintiffs leg injury.

Ill

The plaintiff next claims that the board improperly reversed the commissioner’s findings and award without remanding the matter to him for further proceedings. We disagree.

The commissioner afforded the plaintiff a full opportunity to litigate her claims that her back injury caused lumbar instability which, in turn, resulted in her leg injury and that she suffered from a total disability until the date of the commissioner’s award. The plaintiff introduced hospital records, therapy records, radiological examination records, and reports and treatment notes authored by her treating physicians. As we previously discussed at length, the plaintiff failed to satisfy her burden of proving her case with competent evidence.

Our Supreme Court has stated that even in workers’ compensation cases, the interests of a claimant are often best served by a termination of legal proceedings, even where the termination is adverse to him or her. Glodenis v. American Brass Co., 118 Conn. 29, 34, 170 A. 146 (1934). In cases where a claimant has failed to establish his right to compensation benefits, however, a remand may be proper. “The test is, does it appear reasonable to believe that the plaintiff can prove a case ... or is there a reasonable prospect that she can.” (Citations omitted; internal quotation marks omitted.) Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 153; see also Kearns v. Torrington, 119 Conn. 522, 531, 177 A. 725 (1935). It also is well established that a party to a workers’ compensation case “is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing. . . . Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” (Internal quotation marks omitted.) Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542, 612 A.2d 1222 (1992).

In the present case, the plaintiff did not alert the commissioner, the board or this court to the existence of any additional evidence that would likely change the board’s conclusion, or establish a likelihood that she can produce such evidence, if given the chance to do so. If the plaintiff possessed competent medical evidence that demonstrated the causal connection she alleges exists between her back injury and her leg injury, or that her back injury caused a total disability that lasted after her leg injury occurred, it was incumbent on her to present such evidence during her benefits hearing. Given the uncertainty reflected in the plaintiffs medical records regarding the cause of her injuries, we cannot say that it is reasonable to believe that the plaintiff can prove her case at another hearing. The board properly refused to remand the case for further proceedings.

CROSS APPEAL

In its cross appeal, the trust argues that it terminated Special Attention’s workers’ compensation insurance policy effective August 17, 1996. It argues, therefore, that either Special Attention or the Second Injury and Compensation Assurance Fund is liable to pay any applicable benefits owed to the plaintiff arising out of her August 19, 1996 back injury. We disagree.

The following additional facts and procedural history are necessary for our resolution of this issue. On December 29, 1995, the trust and Special Attention renewed a one year agreement whereby the trust would provide workers’ compensation insurance coverage to Special Attention’s employees, and Special Attention would pay to the trust premium installments each month.

The commissioner made, and the board upheld, the following findings of fact with respect to this issue. On July 18, 1996, the trust sent Special Attention a letter indicating that the trust would cancel its policy in thirty days if Special Attention did not pay past due premiums. The trust sent a copy of that letter to the chairman of the workers’ compensation commission (chairman). On August 16, 1996, the trust sent a letter to Special Attention, stating that the trust would cancel the policy on the following day because Special Attention had failed to pay its past-due premium payments. The trust also sent a copy of that letter to the chairman. Special Attention’s chief financial officer testified that Special Attention did not make any premium payments after July, 1996, and that on August 29, 1996, Special Attention obtained another policy from a different insurance company. The commissioner found that the trust’s July 18, 1996 letter constituted a warning that the policy would be canceled if past-due premiums were not paid, and that the trust’s August 16, 1996 letter constituted a notice of cancellation. The commissioner applied General Statutes § 31-348 and concluded that the trust’s cancellation did not take effect until August 31, 1996, fifteen days after the trust’s notice of cancellation. Accordingly, the commissioner found that the trust provided workers’ compensation insurance to Special Attention on August 19, 1996, the date on which the plaintiff injured her back.

The trust argues that the board improperly upheld the commissioner’s finding that its July 18, 1996 letter constituted a mere warning that it would cancel Special Attention’s policy rather than concluding that the letter constituted a notice of cancellation. The trust characterizes its July 18, 1996 letter as a notice of cancellation and its August 16, 1996 letter as a mere reiteration of its cancellation notice. The trust first argues that its July 18, 1996 letter satisfied all relevant legal requirements. The trust also argues that evidence demonstrated that Special Attention believed that it was responsible for the benefits owed to the plaintiff as a result of her back injury and that Special Attention administered the plaintiffs claim, paying her weekly disability benefits from the date of her filing until the date of the commissioner’s award. Additionally, the trust claims that Special Attention representatives “understood and accepted” that the trust had canceled the policy effective August 17, 1996. In that regard, the trust notes that Special Attention’s chief financial officer testified that he believed that the July 18, 1996 letter constituted a notice of cancellation and that Special Attention obtained new insurance coverage with another provider, effective August 29, 1996.

Section 31-348 provides that the cancellation of a workers’ compensation insurance policy shall be in writing and will be effective fifteen days after it is filed with the chairman. There is no dispute that the trust filed its July 18, 1996 letter as well as its August 16, 1996 letter with the chairman. Although the statute establishes the procedural process of a cancellation, the present dispute rests on the words of the cancellation notice itself. The trust admits in its principal brief that “a sufficient notice of cancellation must explicitly and unequivocally state that the policy is canceled as of a certain date . . . .” Our Supreme Court has explained the importance of providing sufficient notice of cancellation by noting that “[workers’] compensation is a peculiar type of insurance, and that to every policy each employee of the insured is in a very real sense a party . . . [T]he purpose of the notice was to make an authentic record so that any employee or prospective employee might ascertain whether the employer is insured, and, if so, in what company, and that the insurer is estopped to deny the truth of the formal record, whether or not the particular employee whose rights are in question examined the files where such records are kept; and . . . that, as the record stated that the policy was in effect, the insurer could not deny that this was so.” Rossini v. Morganti, 127 Conn. 706, 708, 16 A.2d 285 (1940). That rule protects employees’ interests by affording them access to accurate records filed in the chairman’s office about an employer’s compensation coverage.

The board distinguished the trust’s July 18,1996 letter from the proper notice of cancellation discussed in O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42 (1988). The insurer’s cancellation notice in O’Connell stated that it was effective “as to accidents occurring after 12:01 of the 10th day of June, 1985.” (Internal quotation marks omitted.) Id., 43. The trust claims that its July 18,1996 notice could be characterized as similarly “prospective.” We disagree. What the statute and case law require is a certain and unequivocal cancellation specifying an ascertainable date and time when cancellation will occur, not a specific date and time when cancellation might become effective if certain events do or do not transpire.

Both parties cite case law from various jurisdictions to aid in our resolution of this issue. Our view accords with the reasoning set forth in Benefit Trust Life Ins. Co. v. Commissioner of Insurance, 142 Wis. 2d 582, 419 N.W.2d 265 (App. 1987), rev. denied, 144 Wis. 2d 956, 428 N.W.2d 554 (1988). In that case, the Court of Appeals of Wisconsin reasoned that in the insurance policy context, “[t]o be effective, a notice of cancellation must be unambiguous and unequivocal; it must do more than merely threaten to cancel.” Id., 592. Contrary to the trust’s arguments, its July 18, 1996 letter is not analogous to notice of a cancellation that will occur a specified period of time after the cancellation notice is received by the insured. The occurrence of an event, i.e., the payment of past due premiums, could have negated the attempted cancellation at issue in the present case. On the basis of the terms of the July 18, 1996 letter, Special Attention possessed the authority to negate the cancellation altogether. A third party examining the records in the commissioner’s office could not ascertain whether that event occurred. Turning to the July 18,1996 letter, we agree with the board’s conclusion that it was “merely a warning that cancellation might occur.” (Emphasis in original.) Section 31-348 does not require or suggest a follow-up notice of cancellation. The fact that the trust sent a second letter to Special Attention on August 16, 1996 supports the argument that the trust’s initial letter did not act as a final cancellation notice. Special Attention’s understanding of when its policy was canceled is not persuasive evidence of when the cancellation legally occurred. As previously discussed, § 31-348 has been interpreted as protecting employees or anyone examining coverage records in the commissioner’s office. In that regard, an employer’s understanding as to when coverage terminated is largely irrelevant; the cancellation occurs in accordance with the statute.

The trust’s August 16, 1996 letter unequivocally canceled Special Attention’s policy. The board properly ruled that Special Attention had coverage under the policy for fifteen days after the trust sent that letter and that the trust was, therefore, responsible for any workers’ compensation benefits owed to the plaintiff arising out of her compensable August 19, 1996 injury.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The Second Injury and Compensation Assurance Fund also is a named defendant in this appeal. After concluding that the issues on appeal did not concern the fund, it declined to take an active role in this appeal and cross appeal. The named defendant, Special Attention Health Services, Inc., is not a party to the appeal or to the cross appeal filed by the trust.

       Section 31-301-8 of the Regulations of Connecticut State Agencies provides: “Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.”

       The trust’s July 18, 1996 letter to Special Attention stated in relevant part: “Please be advised that Special Attention Health Services, Inc., and Special Attention, Inc., now has an overdue balance. This notice is in accordance with The Connecticut Hospital Association Workers’ Compensation Trust Board of Trustees Delinquent Payment Policy.

        “You are hereby given notice that coverage will automatically terminate at 12:01 a.m., thirty (30) days following the date of this notice unless the entire outstanding balance due the Trust is received by that date. The outstanding balance shown above includes both the past due balance and the current month’s bill.
      “A copy of the current delinquent payment policy as adopted by the Board of Trustees is enclosed. It is very important that you note the consequences of future late payments. . . .” (Emphasis in original.)

       The trust’s August 16, 1996 letter stated in relevant part: “Please be advised the above subject policy will be cancelled effective August 17,1996 at 12:01 am. due to non-payment of premium in the amount of $21,452.73.”

       General Statutes § 31-348 provides: “Every insurance company writing compensation insurance or its duly appointed agent shall report in writing or by other means to the chairman of the Workers’ Compensation Commission, in accordance with rules prescribed by the chairman, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy. The cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense.”

       See footnote 5.

       Sec footnote 3.


author: PELLEGRINO, J.

text:
    SOUTH END PLAZA ASSOCIATION, INC. v. CHRIS L. JOHNSON ET AL.
    (AC 20403)
    Landau, Pellegrino and Dupont, Js.
    Argued November 1, 2000
    officially released March 27, 2001

      Steven M. Olivo, for the appellants (defendant Chris L. Johnson et al.).

      Matthew N. Perlstein, with whom, on the brief, was Julia Duchow Thompson, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendants Chris L. Johnson and Corrine J. Johnson appeal from a judgment of strict foreclosure of common assessment liens levied against their condominium unit by the plaintiff, South End Plaza Association, Inc. On appeal, the defendants claim that the plaintiff did not properly adopt and ratify the outstanding assessments pursuant to General Statutes § 47-245 (c) and § 19.5 of the plaintiffs declaration and that, therefore, the assessments are not legally enforceable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff is the unit owners’ association for a common interest community known as South End Plaza. The defendants, owners of a unit in the South End Plaza condominium complex, did not pay the assessments of common expenses from November, 1997, through the date of the court’s judgment. The plaintiff recorded hens in the amount of the outstanding assessments and, on March 6, 1998, commenced this action seeking to foreclose those hens.

In defense of the foreclosure action, the defendants claimed that the notice requirements for meetings of the unit owners to consider ratification of the budgets in 1997 and 1998 as mandated by § 47-245 (c) were not met, and, therefore, the budgets adopted at those meetings were void, and the assessments based on them were unenforceable. The plaintiff argued that regardless of the defective notice of the budget meetings in question, the saving provision of § 47-245 (c) permitted it to continue to enforce previously ratified assessments.

The court based its decision largely on the language of § 47-245 (c), which provides in relevant part that “[w]ithin thirty days after adoption of any proposed budget for the common interest community, the executive board shall provide a summary of the budget to all the unit owners and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary. ... In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.” The court found that the plaintiff failed to provide the minimum fourteen day notice required before the scheduled budget meetings were held to ratify the 1997 and 1998 budgets. Notice of the 1997 budget meeting was mailed ten days prior to the meeting; notice of the 1998 budget meeting was mailed eleven days prior to the meeting. Both the 1997 and 1998 budgets were adopted and ratified by the owners that were present at those meetings. The court further found that the assessment levied for the year 1996, which is undisputed and which the defendants paid, was the same amount as both the 1997 and 1998 assessments. Because the 1997 and 1998 assessments were not properly ratified and because the 1996 assessment was the same as the 1997 and 1998 assessments, the court held that, pursuant to § 47-245 (c), the liens were enforceable based on the 1996 budget. Thereafter, the court found the debt to be in the amount of the claimed assessments and ordered a judgment of strict foreclosure, from which the defendants appealed.

On appeal, the defendants argue that the saving provision of § 47-245 (c) is not applicable to the present case. The defendants claim that because notice of the 1997 and 1998 budget meetings was improper, the budgets ratified at those meetings were nullities. The defendants further claim that the saving provision of § 47-245 (c) is invoked only if the budgets were rejected. Thus, the defendants assert that since the budgets were not rejected, the court improperly applied § 47-245 (c). In response, the plaintiff argues that the saving provision of § 47-245 (c) should be applied regardless of whether the budgets were rejected or invalidated. The plaintiff, therefore, urges this court to liberally construe the language of § 47-245 (c). The plaintiff argues that the defendant’s strict interpretation and narrow application of the provision would lead to bizarre results. Additionally, the plaintiff claims that the defendants have failed to demonstrate that they were prejudiced by the inadequate notice. We agree with the plaintiff.

“Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) King v. Sultar, 253 Conn. 429,437-38,754A.2d 782 (2000); Coelho v. ITT Hartford, 251 Conn. 106, 110, 752 A.2d 1063 (1999). “Common sense must be used [when construing statutes] and courts will assume that the legislature intended to accomplish a reasonable and rational result.” Candle-wood Landing Condominium Assn., Inc. v. New Milford, 44 Conn. App. 107, 110, 686 A.2d 1007 (1997); see King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).

Section 47-245 is only one provision of a much larger statutory design. The Common Interest Ownership Act (act), General Statutes § 47-200 et seq., “is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act.” Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 447, 541 A.2d 1226 (1988). The act “expressly aspires to serve as a ‘general act intended as a unified coverage of its subject matter . . . .’ General Statutes § 47-208.” Fruin v. Colonnade One at Greenwich Ltd. Partnership, 237 Conn. 123, 131, 676 A.2d 369 (1996). The act “is a detailed statutory scheme governing the creation, organization and management of common interest communities and contemplates the voluntary participation of the owners. It entails the drafting and filing of a declaration describing the location and configuration of the real property, development rights, and restrictions on its use, occupancy and alienation; General Statutes §§ 47-220,47-224; the enactment of bylaws; General Statutes § 47-248; and the establishment of a unit owners’ association; General Statutes § 47-243; and an executive board to act on its behalf. General Statutes § 47-245. It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements, the placement of insurance, and the provision for common expenses and common liabilities. General Statutes §§ 47-244, 47-245, 47-255,47-249.” Wilcox v. Willard Shopping Cenler Associates, 208 Conn. 318, 326-27, 544 A.2d 1207 (1988).

Fiscal administration under the act is a two step process. First, the executive board of a unit owners’ association must adopt a budget for the upcoming year. General Statutes § 47-244 (a); see also § 25.2 of the plaintiffs declaration. Second, the unit owners must either reject or ratify the proposed budget at an annual meeting. General Statutes § 47-245 (c); see also § 19.5 of the plaintiff’s declaration. Section 47-245 (c) further requires that the annual meeting be held no fewer than fourteen days and no more than thirty days after the budget is mailed to the unit owners.

There is a clear intention in the act that a unit owners’ association should not operate without a budget or without the collection of common assessments in the event that the association has failed to ratify a budget. Comment 2 to § 3-103 of the Uniform Common Interest Ownership Act provides that the provisions of paragraph (c), which contains the same language as General Statutes § 47-245 (c), “permit the unit owners to disapprove any proposed budget, but a rejection of the budget does not result in cessation of assessments until a budget is approved.” The continuous flow of common charges from unit owners to an association is crucial to the survival of the association, the preservation of the interests of the community of owners and the day-to-day operation of the physical structures that comprise the association. Therefore, because the nonpayment of monthly assessment fees jeopardizes the continued existence of the entire condominium community and burdens unit owners who have paid their assessments, the act makes provisions for the continued fiscal support of a unit owners’ association despite the failure of the unit owners to agree on a budget. General Statutes § 47-245 (c); see Uniform Common Interest Ownership Act § 3-103, comment 2.

Section 47-245 (c) provides that if “the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.” The obvious purpose of this saving provision is to permit the continuation of the last budget until a new one is duly ratified, and it makes little difference whether the failure to ratify was because the budget was rejected or was not validly approved and ratified. This interpretation that the last ratified budget should carry over if unit owners do not ratify a new budget is further supported by the language of Comment 2 to § 3-103 of the Uniform Common Interest Ownership Act, in which the drafters state that a unit owners’ association may fail to ratify a budget, but “assessments continue on the basis of the last approved periodic budget until the new budget is in effect.”

Therefore, because we must avoid interpreting a statute in a manner that would have it function in a difficult and possibly bizarre fashion; Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 19, 542 A.2d 1159 (1988); we are persuaded that a liberal interpretation of § 47-245 (c) serves to further the intention of the act. Our conclusion that the language of § 47-245 (c) should be liberally construed is further supported by the liberal policy evinced in another provision of the act. It is clear that remedies under the act are to be liberally construed so that an aggrieved party may be put in as good a position as if the other party had fully performed. General Statutes § 47-212 (a); Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 592-93, 726 A.2d 502 (1999); Fruin v. Colonnade One at Greenwich Ltd. Partnership, supra, 237 Conn. 131-32; Grey v. Coastal States Holding Co., 22 Conn. App. 497, 504-505, 578 A.2d 1080, cert, denied, 216 Conn. 817, 580 A.2d 57 (1990).

Our conclusion that the language of § 47-245 (c) should be liberally construed is further supported by the fact that the defendants were not prejudiced by the actions of the plaintiff. Inadequate notice of the 1997 and 1998 meetings did not cause prejudice to the defendants. The assessments calculated by the 1996 budget are no different in sum from those levied pursuant to the 1997 and 1998 budgets. Pursuant to § 47-245 (c), the defendants remain liable for the unpaid assessments mandated by the 1996 budget effective through the 1997 and 1998 fiscal years. Therefore, because the dollar amounts of the assessments are the same under the 1996, 1997 and 1998 budgets, the defendants have not been prejudiced by the plaintiffs failure to give timely notice for the 1997 and 1998 budget meetings.

In light of our determination that the language of § 47-245 (c) should be liberally construed to require the application of the last ratified budget in the event that an association has failed to ratify a proposed budget, we conclude that the court correctly applied the language of § 47-245 (c) and properly determined the outstanding assessments based on the 1996 budget. We conclude, therefore, that the judgment of the court foreclosing the plaintiffs liens was legally and logically correct and supported by the facts as they appear in the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant New Milford Bank and Trust Company is not involved in this appeal. We refer in this opinion to the defendants Chris L. Johnson and Corrine J. Johnson as the defendants.

       General Statutes § 47-245 (c) provides: “Within thirty days after adoption of any proposed budget for the common interest community, the executive board shall provide a summary of the budget to all the unit owners and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary. Unless at that meeting a majority of all unit owners, or any larger vote specified in the declaration, reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.”

       Because § 19.5 of the plaintiffs declaration contains the same language as General Statutes § 47-245 (c), we refer to the statute only.

       The parties stipulated at trial that if the court found that these liens were enforceable, the amount due for those years and the then current year would be $5308.