author: Per Curiam.

text:
    Joseph L. Lynch et al. v. Granby Holdings, Inc.
    (14868)
    Peters, C. J., Callahan, Borden, Berdon and Palmer, Js.
    Argued June 8
    decision released June 23, 1994

      Andrea A. Hewitt, with whom was Eliot B. Gersten, for the appellant (defendant).

      Timothy Brignole, for the appellee (plaintiff Daniel Lynch).

       June 23, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

In this civil action concerning a disputed lease agreement, the dispositive issue before us is the scope of appellate review of issues that were raised neither at trial nor on appeal. Two actions arising under a single lease were consolidated at trial. In the first action, the tenant, Daniel Lynch (tenant), and his subtenants, Joseph Lynch and Joan Lynch (subtenants), filed a four count complaint charging the lessor, Granby Holdings, Inc. (lessor), with breach of the lease, with breach of an oral agreement and with negligent misrepresentation. In the second action, the lessor sued the tenant to recover unpaid rent. A jury returned verdicts in favor of the subtenants against the lessor on their claims of breach of an oral agreement and for negligent misrepresentation, and awarded them damages in the amount of $12,409. The jury also found in favor of the tenant on his claim of breach of the lease but awarded him zero damages. In the second action, the jury found the tenant liable for unpaid rent in the amount of $35,911.30. The trial court rendered judgments in accordance with the jury verdicts.

The tenant appealed and the lessor cross appealed to the Appellate Court, which affirmed the judgments in favor of the subtenants and the lessor. The Appellate Court concluded, however, that the jury’s zero damages verdict on the tenant’s claim for breach of contract manifested such juror confusion that a new trial on that claim was required. Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 578-79, 630 A.2d 609 (1993). We granted the lessor’s petition for certification and now reverse.

In the tenant’s appeal to the Appellate Court, he challenged the validity of the zero damages award on the theory that the trial court had misinstructed the jury on mitigation of damages. Neither at trial nor in his brief or oral argument in the Appellate Court did the tenant contend that the damages award was improper for any other reason. The Appellate Court did not address the merits of the trial court’s charge on mitigation. Instead, the Appellate Court concluded that the jury’s award should be set aside because the award manifested confusion “about liability, about damages, about the mitigation [of] damages, or all three. Therefore, the jury’s award of zero damages is improper . . . .” Lynch v. Granby Holdings, Inc., supra, 32 Conn. App. 579.

In the absence of a question relating to subject matter jurisdiction, the Appellate Court had only limited authority to reach the issue of possible confusion in the jury’s verdict. In civil jury cases seeking money damages, a litigant is not entitled to plenary appellate review of a claim of error that was not presented to the trial court by way of a timely motion to set aside a jury verdict. General Statutes § 52-228b; Practice Book § 4185; Falby v. Zarembski, 221 Conn. 14, 22, 602 A.2d 1 (1992); Pietrorazio v. Santopietro, 185 Conn. 510, 512-15, 441 A.2d 163 (1981). In the absence of an appropriate motion to set aside the verdict, appellate review of such a claim is limited to plain error review. Falby v. Zarembski, supra, 22; Pietrorazio v. Santopietro, supra, 512-15. In civil cases, “[pjlain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991); Skrzypiec v. Noonan, 228 Conn. 1, 14-15, 633 A.2d 716 (1993); Dubois v. General Dynamics Corp., 222 Conn. 62, 68-69, 607 A.2d 431 (1992). In this case, therefore, the Appellate Court could consider an infirmity in the jury verdict on the basis of the jury’s manifest confusion only if the Appellate Court concluded that it had been plain error for the trial court to accept the jury’s verdict.

As a general matter, the Appellate Court has discretion to decide that a ruling by the trial court warrants plain error review. Before us, the question is whether the Appellate Court abused its discretion in coming to such a conclusion. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 195-96, 520 A.2d 208 (1987).

In the circumstances of this case, we conclude, for three reasons, that it was an abuse of discretion for the Appellate Court to order a new trial on the ground of plain error. First, unlike the Appellate Court’s opinion in Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 402-403, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 195-96, 520 A.2d 208 (1987), the Appellate Court’s opinion in this case does not discuss the plain error rule and articulates no reason why plain error review was appropriate. Second, the Appellate Court addressed this issue sua sponte, rather than at the behest of one of the parties, thereby depriving the parties of an opportunity to brief the issue. Finally, in light of the related issues concerning the tenant’s duties under the lease in this case, the possibility of juror confusion does not warrant plain error review because such a claim of error does not implicate interests of public welfare or of fundamental justice between the parties. See Skrzypiec v. Noonan, supra, 228 Conn. 15; Dubois v. General Dynamics Corp., supra, 222 Conn. 68-69.

Having decided that a new trial was required on the ground of jury confusion, the Appellate Court did not consider the tenant’s claim that the jury’s verdict was improper because of misinstruction on the issue of mitigation of damages. We therefore remand this case to the Appellate Court for consideration of that issue and any other issues that properly were raised in that court by the tenant’s appeal.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.

       The initial complaint listed only Joseph Lynch as a plaintiff subtenant. On January 22, 1992, however, the trial court granted a motion to add Joan Lynch as a plaintiff subtenant.

       A fifth count in the first action was a claim between the subtenants and S. Michael Lassman for breach of contract and negligence. The jury’s award to the subtenants of $2128 on that count was not at issue in the appeal to the Appellate Court and is, therefore, not at issue in this court.

       We granted certification to appeal, limited to the following issue: “Whether the Appellate Court was correct under the eircumstance[s] of this case in holding that a jury finding for the plaintiff Daniel Lynch, together with an award of zero damages, was required to be set aside and remanded for anew trial?” Lynch v. Granby Holdings, Inc., 228 Conn. 913, 635 A.2d 1230 (1993).

       In view of our resolution of this appeal, we need not decide whether the rule of Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988), on which the Appellate Court relied, applies to claims for breach of contract as well as to tort claims.


source: Caselaw Access Project

author: Palmer, J.

license: Public Domain

text:
    Robert Durrschmidt v. Peter Loux et al.
    (14826)
    Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.
    Argued March 23
    decision released July 12, 1994

      Anne Kelly Zovas, with whom, on the brief, was Lucas D. Strunk, for the appellant (Field View Farm Transportation, Inc.).

      Louis J. Martocchio, for the appellee (plaintiff).
   Palmer, J.

The sole question raised by this certified appeal is whether an employee who brings an action to recover damages against a third party for a personal injury that gives rise to a workers’ compensation claim is required by the notice provisions of General Statutes § 31-293 to inform his or her employer of the employment relationship. We conclude that notice of the employment relationship is not required under § 31-293.

The material facts are not in dispute. The plaintiff, Robert Durrschmidt, sustained injuries while unloading fertilizer from a truck in the course of his employment with Field View Farm Transportation, Inc. (Field View). Following the accident, the plaintiff collected workers’ compensation benefits from Field View. In March, 1991, the plaintiff brought this personal injury action against the defendants, Peter Loux, doing business as Loux Leasing Co., and Nutrico, Inc., seeking damages for their alleged negligence in the maintenance of the truck that he had been unloading when he sustained his injuries.

On June 6, 1991, the plaintiff, through counsel, notified Field View by certified letter of his suit against the defendants. That letter stated: “In accordance with Conn. Gen. Stat. Section 31-293 (a), attached you will find a copy of the lawsuit instituted in Superior Court of Ansonia/Milford at Milford initiated against Peter Loux d/b/a Loux Leasing Company and Nutrico, Inc. for your information.” Neither the letter nor the accompanying complaint stated that the plaintiff was an employee of Field View.

On October 1, 1991, Field View filed a motion to intervene in this action. The plaintiff objected on the ground that the motion had been filed too late because § 31-293 required Field View to have filed its motion within thirty days from June 6, 1991, the date Field View received notice of the plaintiffs action against the defendants. Field View acknowledged that it had received the notification letter and complaint on June 6, 1991, but claimed that its receipt of those documents did not trigger the thirty day filing period because neither the letter nor the complaint expressly stated that the plaintiff was an employee of Field View. The trial court concluded that notice of the employment relationship was not required by § 31-293, and, accordingly, denied Field View’s motion to intervene as untimely. The Appellate Court summarily affirmed the judgment of the trial court, and we granted Field View’s petition for certification limited to the following issue: “Does the notice to the employer pursuant to General Statutes § 31-293 require notice of an employment relationship between the person giving notice and its recipient?” Durrschmidt v. Loux, 227 Conn. 915, 632 A.2d 690 (1993). We affirm the judgment of the Appellate Court.

“ ‘General Statutes § 31-293 grants to an employer who has paid worker’s compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors; Robinson v. Faulkner, 163 Conn. 365, 377, 306 A.2d 857 (1972); provided that the right is exercised in a timely fashion. Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957).’ Ricard v. Stanadyne, Inc., [181 Conn. 321, 323, 435 A.2d 352 (1980)]. An employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 ‘[cannot] be barred from intervening by the passage of the [thirty day filing period] which this statute prescribes, because, until notice is given, the time does not begin to run.’ Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967).” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990). Therefore, because Field View failed to file its motion to intervene within thirty days of its receipt of the plaintiff’s letter, its motion was timely only if the plaintiff’s letter and the accompanying complaint did not constitute notice under § 31-293.

We have recently reviewed the notification requirements of § 31-293. In Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 533, an employer filed a motion to intervene in an employee’s action against a third party tortfeasor thirty-three days after receipt of notice of the action from the employee. The employer argued that the employee’s notification letter was insufficient under § 31-293 because it failed to apprise the employer of certain information, including the employer’s intervention rights, the legal consequences to the employer of an untimely intervention motion, the compensation claim involved and the date of the alleged injury. Id., 538-39. We rejected the employer’s interpretation of § 31-293 because, “under § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more.” Id., 538. “The legislature’s specific statement that notice must be given only of certain facts connotes the legislative intent to exclude that which is not specifically stated. . . . It is not for this court to impose obligations not intended by the legislature.” (Citations omitted; internal quotation marks omitted.) Id., 540.

Our analysis in Winslow is dispositive of the issue now before us. Section 31-293 requires notification of only two facts, that an action has been brought and the court to which the writ in that action is returnable. We decline to impose an additional notice requirement urged by Field View because the legislature, in enacting § 31-293, has not done so.

Field View argues that in light of the centrality of the employment relationship to the workers’ compensation scheme, notice that does not expressly reference the employer-employee relationship cannot satisfy § 31-293. Although the employment relationship gives rise to the parties’ substantive rights and obligations under the workers’ compensation statutes, it does not follow that the legislature must have intended that notice under § 31-293 include a specific reference to that relationship. As we concluded in Winslow, “ ‘[t]he legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.’. . . Accordingly, we cannot read additional notice obligations into the terms of § 31-293 merely because [the employer] deems notice of particular facts necessary for it to exercise its right to intervene in a timely fashion. Accord Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).” Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 540.

Field View concedes that the letter and complaint were sufficient to alert it to the fact that the plaintiff had brought a personal injury action against the defendants in the Superior Court for the judicial district of Ansonia-Milford. Furthermore, the letter expressly provided that the accompanying complaint had been forwarded to Field View “[i]n accordance with Conn. Gen. Stat. Section 31-293 (a),” the statutory provision that authorizes an employer’s timely intervention in an employee’s action against a third party tortfeasor. Because the notice received by Fair View on June 6, 1991, satisfied the requirements of § 31-293, Field View’s motion to intervene, filed well after the expiration of the thirty day period, was properly denied by the trial court.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-293 provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate.”

         Durrschmidt v. Loux, 31 Conn. App. 917, 625 A.2d 848 (1993).

       General Statutes § 31-293 also provides that the employer shall notify the employee of any action brought by the employer against a third party with a legal liability to pay damages for the employee’s work-related injury.

       The information contained in the complaint accompanying the plaintiffs letter to Field View may also be considered in determining whether Field View received notification in accordance with the requirements of General Statutes § 31-293. See Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 539 n.2.

       In Winslow, we expressly declined to consider the question raised by this appeal because in that case notice of the employment relationship had been provided to the employer by the employee. Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 539 n.2.


author: Per Curiam. Berdon, J.,

text:
    Travelers Insurance Company v. General Electric Company
    (14900)
    Peters, C. J., Berdon, Norcott, Katz and Palmer, Js.
    Argued June 7
    decision released July 12, 1994

      Andrew P. Nemiroff, with whom was Jennifer Paul Cohen, for the appellant (defendant).

      Thomas J. Shortell, with whom, on the brief, were Karen P. Blado and Mary J. Ambrogio, for the appellee (plaintiff).
   Per Curiam.

The dispositive issue in this appeal is whether a trial court has rendered an appealable judgment when it denies a litigant’s motion to stay a civil action to permit arbitration. The plaintiff, Travelers Insurance Company, filed an action against the defendant, General Electric Company, alleging the nonpayment of a lease termination payment. In response to the plaintiffs application for a prejudgment remedy, before filing an answer, the defendant moved the trial court, pursuant to General Statutes § 52-409, to stay the pending litigation until the completion of arbitration proceedings. Concluding that the defendant had failed to prove that the plaintiff had agreed to arbitrate its claim, the trial court denied the defendant’s motion. The defendant appealed the denial of its motion to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The plaintiff maintains that the trial court’s denial of the stay is not an appealable order. We agree. In Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769, 613 A.2d 1320 (1992), we held that, “[b]ecause ... a civil action must be pending for a § 52-409 order to be issued . . . such an order is interlocutory and, therefore, not appealable.” Applying the two part test for an appealable interlocutory order articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), we concluded that a § 52-409 order is neither an “order or action [that] terminates a separate and distinct proceeding” nor an “order or action [that] so concludes the rights of the parties that further proceedings cannot affect them.” Success Centers, Inc. v. Huntington Learning Centers, Inc., supra, 769-76.

The procedural context for our decision in Success Centers, Inc. v. Huntington Learning Centers, Inc., supra, 223 Conn. 769-76, was a decision of a trial court that granted a defendant’s motion for a stay pursuant to § 52-409. In this case, the trial court denied the defendant’s motion for a stay pursuant to § 52-409. Despite the defendant’s earnest argument to the contrary, we conclude that this is a distinction without a difference. The analysis contained in Success Centers, Inc. v. Huntington Learning Centers, Inc., supra, expressly encompassed any order “granting or denying a stay under § 52-409.” Id., 768.

We are unpersuaded that we should reconsider our holding in Success Centers, Inc. v. Huntington Learning Centers, Inc., supra, 223 Conn. 761, or limit its applicability. Accordingly, the defendant’s appeal is premature.

The appeal is dismissed.

Berdon, J.,

dissenting. I continue to be concerned about this court’s ruling in Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 613 A.2d 1320 (1992), that the decision to grant or deny a motion to stay proceedings based on the arbitrability of the dispute is not a final judgment for appellate jurisdictional purposes. The denial of a stay for arbitration comes within the first Curdo exception. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (“where the order or action terminates a separate and distinct proceeding”). It makes no economic sense to require a defendant to defend a civil action and incur costly litigation expenses when the controversy may very well be subject to an agreement to arbitrate.1 Success Centers, Inc. v. Huntington Learning Centers, Inc., supra, 777 (Berdon, J., dissenting). Furthermore, arbitration is designed to be “ ‘an efficient and economical system of alternative dispute resolution.’ ” White v. Kampner, 229 Conn. 465, 471, 641 A.2d 1381 (1994), quoting Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). By refusing to allow an appeal to determine whether a dispute is arbitrable, this court fails to serve that beneficent purpose. For these reasons, I would get to the merits of the defendant’s appeal.

Accordingly, I respectfully dissent.

       No appeal has been taken from the trial court’s order granting the plaintiff’s application for a prejudgment remedy.

       General Statutes § 52-409 provides: “stay of proceedings in court. If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”


text:
    State of Connecticut v. Gregory Blue
    (A.C. 12143)
    Peters, C. J., Callahan, Borden, Berdon, Norcott and Katz, Js.

      Decision released July 1, 1994

      Neal Cone, assistant public defender, for the petitioner (defendant).

      David J. Sheldon, deputy assistant state’s attorney, for the respondent (state).

       Indeed, in this case there is an arbitration pending in New Jersey which involves the original lessor, Paint Works Corporate Associates-W, and the defendant, General Electric Company, and pertains to the same subject matter of this litigation—that is, the termination penalty of $543,760.

       July 1, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

This is a petition for certification to appeal to this court from the judgment of the Appellate Court affirming the trial court’s judgment. The trial court, after accepting the defendant’s plea of guilty, under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of robbery in the first degree, and after denying the defendant’s motions to withdraw his guilty plea, sentenced the defendant to a period of eight years incarceration, execution suspended after five years, and three years probation.

On appeal to the Appellate Court, the defendant challenged the trial court’s acceptance of his plea and its denial of his motion to withdraw the plea. The Appellate Court summarily affirmed the judgment of the trial court. State v. Blue, 33 Conn. App. 941, 638 A.2d 1098 (1994). The defendant now seeks further review of the trial court’s acceptance of his plea and its denial of his motion to withdraw the plea. We have today ordered that certification be denied. State v. Blue, 230 Conn. 903, 644 A.2d 919 (1994).

Ordinarily, we do not explain the reasoning behind a denial of a petition for certification to appeal. In this case, however, we deem it appropriate to do so because the dissent mischaracterizes the trial court record and the law governing the trial court proceedings.

The issue raised by the petition for certification is whether the Appellate Court should have reversed the trial court’s denial of the defendant’s motion to withdraw his guilty plea. That motion arguably incorporated by reference an issue raised by a motion to disqualify counsel in which the defendant had raised his alleged inability to participate intelligently, knowingly and willingly in the plea canvass because he was, at that time, taking psychotropic medication. As a matter of law, the defendant cannot prevail because of State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986). As a matter of fact, the record reveals that the trial court engaged in a thorough plea canvass to which the defendant responded appropriately and in some detail. Further, the record of the proceedings at the time of the motion to withdraw the plea supports the trial court’s determination that the defendant understood the plea canvass.

I

The record discloses the following facts and procedural history. On September 29, 1992, in the trial court, the defendant, represented by counsel, entered a plea of guilty under the Alford doctrine to one count of robbery in the first degree in violation of General Statutes (Rev. to 1991) § 53a-134. The plea bargain that the state disclosed to the court contemplated a sentence of incarceration of no more than eight years, with the defendant having the right to argue for less at the time of sentencing. Before accepting the defendant’s plea, the court engaged in a lengthy canvass.

The transcript of the plea canvass discloses that the defendant answered many of the court’s questions with responses that, although not eloquent, were appropriate and responsive to the questions posed to him. The court found the plea to have been entered voluntarily, knowingly, intelligently, and with a full understanding of the charges and consequences. Significantly, insofar as the record discloses, neither person in the courtroom charged with responsibility for protection of the defendant’s rights—the judge, who observed the defendant as he went through the canvass, or the defendant’s attorney, who had spoken with the defendant before the entry of the plea and stood with him as he entered the plea—had any perception that, despite the presence in his system of medications, the defendant did not understand what he was doing. Indeed, this record is, at the least, susceptible of the inference that the medications helped, rather than hindered, the defendant in understanding the proceedings and their consequences for him.

On October 28, 1992, the defendant filed a pro se “Motion To Dismiss Counsel,” dated October 22, 1992. This motion raised four substantive grounds of dissatisfaction with counsel: (1) failing to advise the defendant of a purported mandatory, nonsuspendable sentence under General Statutes § 53a-35a; (2) “ill-advis[ing] the defendant by having him plea[d] guilty under the influence of mind altering drugs”; (3) failing to inform the court of a request for a psychiatric evaluation and a “determination for CADAC”; and (4) misinforming the defendant “about his felony record conviction.”

The next court proceeding was on November 17, 1992. The defendant’s attorney noted that he had just recently seen the defendant’s pro se motion to withdraw the plea, and that the attorney was preparing a motion to withdraw the plea. The attorney also indicated that a psychiatrist had evaluated the defendant, and that the psychiatric report would be ready in approximately two weeks. The attorney made clear, however, that he had retained the psychiatrist for purposes of the sentencing, irrespective of the result on any motions to withdraw the defendant’s plea. The attorney therefore requested that all proceedings, including sentencing if the motions were denied, be continued to December 9. The court continued the case to December 9, without ruling on the defendant’s motion.

Before doing so, however, the court addressed the defendant directly about the matters raised in his pro se motion. The court asked the defendant whether he had a copy of the motion. The defendant responded, “Just a minute, sir.” The court then directed the defendant to his claim that his attorney had not advised him regarding the mandatory minimum sentence required by § 53a-35a, and the defendant responded, “Yes. That’s correct Your Honor.” The defendant then acknowledged that “Me and my counsel discussed that this morning,” and after his attorney explained that he would not be sentenced under that provision, the defendant indicated that he understood that.

The court also specifically addressed the defendant’s claim for an evaluation for CAD AC. The defendant stated: “I had requested an evaluation for CADAC. Okay? . . . Requested of my counsel. . . . From my counsel, I requested it. To have a CAD AC evaluation.” In the course of this colloquy, the court asked the defendant whether he had been evaluated for CAD AC in a 1990 case. The defendant responded: “Someone came and ... I don’t know exactly what it was, but someone came to see me. ... I never remember using CAD AC . . . .” The court then directed the defendant’s attorney to determine what had occurred in the 1990 proceeding.

With respect to the defendant’s claim that his attorney had misinformed him regarding his felony conviction record, it became clear that certain information in the presentence investigation report was incorrect. This information was that the defendant had numerous prior convictions under ten different aliases. The court and the defendant engaged in a lengthy colloquy, in which the defendant, responding appropriately and at length to the court’s inquiries, denied that he was the person named in those aliases. The court stated that it would contact the probation department personally in order to clear up this confusion.

With respect to the defendant’s claim that he had pleaded guilty under the influence of mind altering drugs, the defendant asserted that he had been coerced into pleading guilty by his attorney. When the court questioned why he had not indicated that fact during the canvass, the defendant stated: “Because, like I said, I was on drugs, okay?” The following colloquy then took place:

“The Court: Are you talking about the drugs that we discussed during the canvass on that day?
“The Defendant: Yes sir, yes.
“[Q.] You indicated to me very clearly in a transcript, which I read this morning, bears out that you indicated to me, in response to my questions, that you understood my questions.
“[A.] Well see . . . but, I’m going to tell you, that sometime the drugs that I was on or the drugs that they give me have me submit or commit myself to saying things or doing things that I’m not aware of. And I was trying to ... .
“[Q.] All right. That’s what you mean by number two, in your Motion to Dismiss Counsel, is that right? . . . That’s what you’re talking about.
“[A.] Yes.”

The defendant did not further pursue his motion to dismiss counsel. Instead, by motion dated December 8, 1992, and accompanied by a memorandum of law in support thereof, the defendant’s attorney moved, on behalf of the defendant, to withdraw the defendant’s plea. These motion papers did not rely on any claim that the defendant had been under the improper influence of drugs at the time of the plea. The sole basis for this motion was the claim that the court had been required by Practice Book §§ 711 and 721 (1) to advise the defendant of the mandatory one year minimum sentence provided by General Statutes § 53a-35a. In the memorandum, the attorney stated that he had “carefully reviewed the transcript of the judicial canvass and is of the opinion that the Court never made the Defendant aware of the mandatory minimum sentence for Robbery 1st Degree.”

The defendant’s attorney filed his motion when the parties appeared in court the next day, December 9, 1992. The attorney stated: “I’m prepared to move forward on a motion to withdraw plea for my client. If I am unsuccessful, Your Honor, I’m prepared to move forward on sentencing today.” The attorney then argued that the court’s failure to advise the defendant during the plea canvass of a mandatory minimum sentence of one year under § 53a-35a rendered the plea invalid. The attorney also stated, however, that “I realize that my client was aware of the plea agreement of eight years with the right to argue for less, and I think my client was not so naive to believe that he would walk out of here without any type of imprisonment, but the Practice Book section must be adhered to strictly, and, therefore, Your Honor, I feel my client does have a right to withdraw his plea.” (Emphasis added.) The court repeated its earlier findings that the defendant had knowingly and voluntarily entered his guilty plea and agreed to an eight year ceding on his sentence, and found also that a denial of the motion to withdraw would not result in any manifest injustice. Accordingly, the court denied the motion to withdraw the plea filed by the defendant’s attorney. The defendant’s attorney then stated that he was “prepared to move forward on sentencing remarks.”

All the parties—the defendant, his attorney, the state and the court—then turned their attention to the matter of sentencing. The defendant’s attorney made a lengthy plea for leniency. In the course of his remarks, he referred to the report of John H. Felber, a psychiatrist who had evaluated the defendant on November 17, 1992, three weeks after the defendant prepared his pro se motion to withdraw his plea. The attorney also referred to a statement of the attorney’s wife, whom he represented to be a nurse practitioner, who had not examined the defendant, regarding the defendant’s medications. The purpose of these references was not to support a claim for withdrawal of the defendant’s plea, but to support a plea for leniency by the court in sentencing the defendant. Indeed, using Felber’s report for support, the attorney stated: “Now, I understand society wanting to warehouse mentally ill people who are a threat to society who exhibit antisocial behavior, but I think society would not be so quick to keep people like [the defendant] away if they can control his behavior. This, as far as I know, is the first time that he was on prescribed medication. From all reports, he’s not been any problem in jail. He’s under control of these drugs. He may very well be salvageable. I ask the court to take that into consideration.”

Felber’s report, which we have examined, indicated that the defendant “has been drug dependent on cocaine, heroin, crack, halcion and alcohol for more than ten years. In addition, he suffers from a psychotic disorder of a schizophrenic or schizoaffective nature. This illness is fairly controlled by psychotropic medication, Trilafon, Mellaril and Stelazine.” (Emphasis added.) The report also indicated that the defendant “committed the criminal offenses with which he has been charged, in order to pay for narcotics and satisfy his addiction.” Felber also stated that the defendant’s “psychotic disorder has never been thoroughly explored, diagnosed and treated.” (Emphasis added.) He stated that the defendant was a “seriously ill patient who is in need of extensive inpatient evaluation and therapy.” Although Felber’s report describes the defendant’s illness, it does not suggest that because of his medications, the defendant had been incapable of understanding and voluntarily engaging in the plea proceedings on September 29.

The defendant personally participated in the sentencing proceedings. We first note that at no time did the defendant, either personally or through his counsel, reassert his earlier claim that his plea had been involuntary because of the effect of his medications. He did, however, personally address the court, both orally and in writing.

Orally, the defendant asked the court for leniency because “I never had any violent acts before in my life against anyone, and that although the guy said that I pulled out the knife, I don’t—I can’t concentrate what happened because I pleaded guilty, but the knife fell out of my pocket, and the knife was seen. That’s what happened. I never drew the knife on anybody to hurt anyone. ... It started off as a larceny sixth. Because of the display of the knife, it changed—it made it to robbery, and I would like it to be considered.” (Emphasis added.)

Furthermore, the defendant also presented to the court a seven page handwritten letter, which the court examined, as have we. Significantly, although this letter was not filed with the court until December 9, it is dated “10/16,” six days prior to October 22, 1992, the date of the defendant’s pro se motion to withdraw his plea. Although in that motion he, for the first time, had claimed involuntariness of his plea because of his medications, nowhere in his seven page handwritten letter did the defendant even refer to the circumstances of his plea of guilty.

Before imposing sentence, the trial court addressed the defendant personally, and asked whether he had anything to add. The defendant responded: “No, just want to add, you know, that being incarcerated I lost a lot, you know, and I lost my family that I had custody of. I had a custody suit filed against me . . . while I’m incarcerated, and I also lost—I’m losing—I lost that, having custody of my children. I also lost a lot of other things while I was incarcerated, and I’ve been incarcerated fifteen months on this. I’d like that to be considered.”

In imposing sentence, the court asked the defendant: “[The court] is going to require you . . . to get some inpatient treatment when you are discharged from prison. You understand that?” The defendant answered, “Yes.” The court then imposed a sentence of eight years incarceration, execution suspended after five years, followed by three years of intensive probation, with special conditions of probation regarding psychiatric and substance abuse evaluation and treatment. In response to a question by the court, the defendant also indicated that he was then taking his medications.

II

The point of this lengthy and detailed recitation is that this record convincingly rebuts the defendant’s claims in his petition for certification and the dissent’s selective reading of the record in support thereof. The only suggestion in this record to support the defendant’s principal claim—that his plea of guilty was involuntary because he had taken his medications—is the defendant’s unsupported statement to that effect to the court on November 17, 1992. When viewed in the context of the entire record, however, that unsupported statement is simply insufficient to raise a legitimate question, adequate to invoke our certification discretion, as to whether the trial court: (1) should not have accepted, or should have permitted the defendant to withdraw his plea; or (2) should have required sua sponte an evidentiary hearing into the defendant’s competence to enter the plea.

First, it is explicit on this record that the defendant had taken his medications both on September 29, when he entered his plea, and on December 9, when he was sentenced. We can fairly presume that the same was true for November 17. Nonetheless, in all three court appearances the defendant engaged in appropriate and considerable dialogue with the court, and did so in terms not limited to monosyllables, the dissent’s suggestion to the contrary notwithstanding. Indeed, after having taken his medications, the defendant was clear enough in his mind to: (1) engage in the lengthy plea canvass; (2) give the court an account of his work and educational history; (3) request a CAD AC evaluation; (4) engage in a detailed and appropriate denial of the state’s claims regarding his prior record and alleged aliases; (5) prepare, after the plea proceedings, a lengthy letter to the court pleading for leniency but not asserting that he had not understood what he was doing when he pleaded guilty; (6) make an appropriate oral plea for leniency in sentencing, again, without asserting that he had not known what he was doing when he pleaded guilty; and (7) inform the court that his offense had “started off as a larceny sixth” but that “[b]ecause of the display of the knife . . . made it to robbery . . . .”

Second, the defendant’s attorney had spoken to the defendant prior to the plea proceedings on September 29, was with him in court during those proceedings and, according to his representation to the court, planned to confer further with the defendant immediately after those proceedings. Yet the attorney’s claims on behalf of his client are significantly devoid of any support for the defendant’s claim that his plea was involuntary because of the medications. Indeed, when his attorney, subsequent to his conversations with the defendant at the time of his plea and subsequent to the defendant’s pro se motion, filed and argued his motion to withdraw the defendant’s plea, that motion was confined to an assertion that the plea had been involuntary because of a failure to notify the defendant of a minimum mandatory sentence. Moreover, none of the attorney’s references to the defendant’s mental state, including the attorney’s reliance on his wife’s opinion and on Felber’s report, was made in the context of a claim that the defendant’s plea had been involuntary. In the context of the entire course of the trial court proceedings, there is a telling divergence between the defendant’s assertion on November 17 and his attorney’s efforts on his behalf.

Third, Felber’s report, which was the result of his evaluation of the defendant at the courthouse on November 17, the same day the defendant appeared in court, is also telling. Significantly absent from that report is any indication that the defendant had been unable to understand the nature of the proceedings when he pleaded guilty on September 29. Instead, the report relies on a detailed history, presumably obtained by Felber from the defendant, of his family, health, educational, criminal and substance abuse histories, and states, again presumably based on information given to Felber by the defendant, that the defendant “committed the criminal acts with which he has been charged, in order to pay for narcotics and satisfy his addiction.” Although Felber gave his opinion that the defendant “suffers from a psychotic disorder of a schizophrenic or schizoaffective nature,” a phraseology that the defendant has not sought to explain, Fel-ber also noted that: (1) the defendant’s illness is controlled by his medications; and (2) his “psychotic disorder has never been thoroughly . . . diagnosed . . . .” In sum, the record does not indicate that the defendant did not have the capacity to enter a voluntary and intelligent plea.

With respect to the law governing this case, it is clear that, were we to grant the defendant’s petition, the case would be controlled by State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986), and decided adverse to the defendant. Consequently, there is no point in granting the defendant’s petition for certification.

“A defendant who challenges the validity of his guilty plea for lack of an evidentiary inquiry into his competence must make a showing that, at the time of his plea, the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency . . . . Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972).” (Internal quotation marks omitted.) State v. Watson, supra, 198 Conn. 605.

“[I]n considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book] § 721, and are not conclusively refuted by the record of the plea proceedings, and other information contained in the court file, then an evidentiary hearing is required. See State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983).” (Internal quotation marks omitted.) Id., 612-13.

In Watson, we rejected a similar claim that the trial court should have held an evidentiary hearing on the defendant’s motion to withdraw his guilty plea under Alford. In this case, as in Watson: (1) the information relied on by the defendant was elicited by the court during its plea canvass; (2) no medical report suggested that the defendant had been unable to understand the nature of the plea proceedings; (3) neither the defendant’s crime nor his demeanor at any time indicated irrationality or inappropriate affect; (4) the defendant’s attorney had not at any time raised any question regarding the defendant’s competence or put the defendant’s mental state in issue; (5) the defendant’s responses, both at the plea canvass and throughout the ensuing proceedings, indicated a full understanding of all of the proceedings; (6) the defendant’s claim on appeal, based on the purported effect of his medications, was not the principal focus of his efforts to withdraw his plea in the trial court; and (7) neither the defendant nor his counsel suggested to the court that an evidentiary hearing was in order. Finally, the defendant’s claims are sufficiently refuted by the entire record of the trial court proceedings.

The petition for certification is denied.

Berdon, J.,

dissenting. The court, by failing to grant certification in this case, underscores the increasing irrelevance that mental illness has today in the criminal law of this state. The fact that this court will let stand a trial court’s acceptance of the defendant’s plea that led to a finding of guilt when he was probably mentally ill and certainly heavily medicated with psychotropic drugs greatly troubles me. This injustice was further compounded by the trial court’s refusal to allow the defendant to withdraw his plea.

The majority claims that this opinion mischaracter-izes the trial court proceedings. Although the majority has reprinted a substantial portion of the trial court record, I believe that the lengthy quotes relied on by the court indicate that it has missed the point raised by the defendant’s claim. Apparently, the majority believes that the purpose of this dissent is to prove the defendant’s insanity, and the majority accordingly relies on various colloquies that it believes are inconsistent with an insane mind. The reason that I would grant certification, however, is not a claim that the defendant has somehow proved, based on a cold record, that he was incompetent at the time of his plea. The defendant makes no such claim. Instead, I would grant certification because the circumstances before the trial court, as set out in this dissent, raised a troubling question of whether the defendant had the mental capacity to enter a guilty plea at the time of his plea and, therefore, as a matter of law, the trial court should have either allowed the defendant to withdraw his plea or held an evidentiary hearing to determine whether he had been competent to enter a plea.

On October 28,1992, the defendant appeared before the trial court to enter a plea under the Alford doctrine to one count of first degree robbery under General Statutes § 53a-134. The trial court conducted a plea canvass pursuant to Practice Book §§ 711 through 713. The purpose of this canvass is to advise the defendant of his constitutional rights and ensure that the defendant is knowingly, voluntarily and intelligently waiving those rights. During this canvass, the trial court asked the defendant questions about his personal background, which the defendant answered. The trial court also asked the defendant: “Do you suffer from any illnesses of any sort?” The defendant answered in the affirmative. In the subsequent colloquy, the defendant indicated that he was being seen by a psychiatrist at Hartford Community Correctional Center, and had been prescribed three medications by the psychiatrist, “Benedyl,” “Malleril,” and “Tryliquon.” Furthermore, the defendant indicated that he was on all three medications at the time of this hearing. The defendant answered “yes” to the trial court’s suggestions that one of these drugs was to help him sleep, and another was a tranquilizer. As for the third drug, the defendant could only state: “I have black-outs and . . . some other thing, I don’t know.” At this point, the trial court stated: “Okay. All right. Do you understand that when you plead guilty you give up your right to a trial. . . ” and other questions designed to determine if the defendant understood his rights. The defendant responded with “yes” and “no” answers. The trial court then accepted the defendants plea and continued the matter for a pre sentence investigation and report.

At the next appearance, on November 17, 1992, the defendant filed two pro se written motions to withdraw his plea and discharge his attorney. The first pro se motion indicated that the plea was invalid because the defendant was “unable to comprehend the procedure before the court and the nature of the charges.” The second pro se motion stated more directly that his attorney had “ill-advised the defendant by having him plea[d] guilty under the influence of mind altering drugs” and had “neglected to inform the Court that there was a request for psychiatric evaluation and determination for [the Connecticut alcohol and drug abuse commission].” The defendant’s attorney also indicated his intention to file a motion to withdraw the defendant’s plea, and asked for a continuance for this purpose. The attorney informed the court that the defendant had been psychiatrically evaluated that day, and the psychiatrist was preparing a report.

The trial court stated that he would not hear the various motions or proceed with sentencing until the next court date so that the report would be available. The state requested that the pro se motion to dismiss counsel be heard immediately to prevent unnecessary delay. In response to the court’s inquiry with regard to this motion, the defendant stated that he had been “coerced” into his plea because he had been on drugs at the time of the plea. The trial judge indicated that he had read the transcript of the plea canvass and stated to the defendant: “You indicated to me ... in response to my questions [at the canvass], that you understood my questions.” The defendant answered: “Well see . . . but, I’m going to tell you, that sometime the drugs that I was on or the drugs that they give me have me submit or commit myself to saying things or doing things that I’m not aware of. And I was trying to . . . .” The trial court interrupted the defendant and stated: “All right. That’s what you mean by number two, in your Motion to Dismiss Counsel, is that right? . . . That’s what you’re talking about.” The defendant answered: “Yes.” The trial court then stated that it was not going to rule on the motions until the next hearing date.

On December 9, 1992, the defendant returned to court. The presentence investigation report contained the psychiatric evaluation. It indicated that the defendant had been severely drug dependent for more than ten years, and suffered from a “psychotic disorder of a schizophrenic or schizoaffective nature,” for which the defendant was prescribed “psychotropic medication, Trilafon, Mellaril and Stelazine.” The report concluded that the defendant was “a seriously ill patient who is in need of extensive inpatient evaluation and therapy” and strict outpatient monitoring, medication, counseling and drug screening following “a prolonged hospital stay.” Nevertheless, the defendant’s attorney did not address the issue of the defendant’s competency to enter a plea, instead merely arguing that the trial court should allow the withdrawal of the plea because it had failed to advise the defendant as to a mandatory minimum sentence. The defendant did not speak. The trial court proceeded to sentencing, and only then did the defendant’s attorney refer to the report, characterizing the defendant as “severely mentally ill” based on a discussion he had engaged in with his nurse-practitioner wife regarding the identity and daily dosages of the psychotropic drugs his client had been prescribed. The trial court sentenced the defendant to a term of imprisonment of eight years, suspended after five, with mandatory inpatient evaluation and treatment following release from prison. The trial court did not address either of the pro se motions filed by the defendant on November 17, 1992.

“Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986); see General Statutes § 54-56d (a) (establishing competency standard for criminal proceedings); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). During the plea canvass, the trial court was informed that the defendant was receiving psychiatric treatment and had been on three different medications at the time of the plea. These representations gave the trial court “reason to suspect” that the defendant’s psychiatric problems and the three medications he had taken “might impinge upon the accused’s capacity to enter a voluntary and intelligent plea.” United States v. Parra-Ibanez, 936 F.2d 588, 595 (1st Cir. 1991); see Spikes v. United States, 633 F.2d 144, 145 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S. Ct. 1399, 67 L. Ed. 2d 369 (1981). Therefore, the trial court had an independent duty, under Pate v. Robinson, 383 U.S. 375, 384-85, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), to order, on its own, an evidentiary hearing, or at least make some reasonable further inquiry; United States v. Cole, 813 F.2d 43, 47 (3d Cir. 1987); for the purpose of determining, under the circumstances, whether the defendant could knowingly, voluntarily and intelligently waive his constitutional rights by pleading guilty under the Alford doctrine.

The trial court, however, neither called for an evidentiary hearing nor made reasonable inquiry at any stage of these proceedings. It did not “inquire what dosages of [the three psychotropic medications the defendant] . . . had ingested and what effects, if any, such medications might be likely to have on [the defendant’s] clear-headedness.” United States v. Parra-Ibanez, supra, 936 F.2d 596. The trial court’s questions addressed to the defendant regarding his ability to understand the proceedings and the defendant’s generally monosyllabic answers to these questions at the time his plea was accepted constitute a wholly inadequate substitute for a full inquiry into the defendant’s capacity knowingly, voluntarily and intelligently to waive his constitutional rights. “[A] court may not rely on the defendant’s subjective appraisal of his own capacity or on the court’s personal observations of the defendant” when there are factual allegations that, if true, would require a Pate hearing. State v. Watson, supra, 198 Conn. 605.

Even if the trial court acted within its discretion in accepting the defendant’s plea without holding an evidentiary hearing to inquire into the effects of the defendant’s mental illness and medications on the voluntariness of the plea, the trial court should have granted the defendant’s motion to withdraw his plea. A defendant is allowed as of right to withdraw a plea if “[t]he plea was involuntary . . . .” Practice Book § 721 (2). In the November proceeding, the trial court learned that the defendant had been evaluated by a psychiatrist that day, and the defendant represented through written motion and oral statement that he wished to withdraw his plea and discharge his attorney because the attorney gave him poor advice and allowed him to plead while heavily medicated and unable to comprehend the proceedings. In the December proceeding, the trial court had before it the promised psychological evaluation, which clearly indicated that the defendant was mentally ill and confirmed that the defendant had been taking three different psychotropic drugs. At both of these proceedings, the trial court had sufficient evidence before it to question the defendant’s competency at the time of the plea canvass. Under the circumstances, the trial court should have “followed the universal practice in this State ... to exercise . . . discretion in favor of the accused, and to permit him to change his plea and have a jury decide the question of his guilt.” (Internal quotation marks omitted.) State v. Brown, 157 Conn. 492, 497, 255 A.2d 612 (1969).

Finally, the fact that the defendant had pleaded under the Alford doctrine makes it particularly unjust to uphold this conviction. The defendant was not admitting that he was guilty of the crimes charged. Instead, an Alford plea represents a strategic choice in view of a defendant’s chances of prevailing at trial given the state’s factual basis for the plea, the exposure to imprisonment on the charged crime, the potential for the state to file other charges and all other relevant circumstances. This strategic choice is little more than a farce if the defendant was incompetent at the time he made the decision to plead.

The upholding of the defendant’s conviction by the failure to grant certification from the summary affirmance of the defendant’s conviction by the Appellate Court is evidence that this court ascribes no practical relevance to the defendant’s mental capacity and its effect on the voluntariness of his plea. Today we add Gregory Blue’s name to the growing list of defendants who have been subjected to the harsh procedural and substantive rules regarding criminal culpability that are employed by this court. State v. Patterson, 229 Conn. 328, 641 A.2d 123 (1994); State v. Medina, 228 Conn. 281, 636 A.2d 351 (1994); State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993); State v. Raguseo, 225 Conn. 114, 622 A.2d 519 (1993); State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992). These cases fail to honor this state’s proud history of trying and punishing only those individuals who are competent at the time of the commission of the crime, at the time of the trial, and at the time of punishment itself. See State v. Joyner, supra, 487-92 (Berdon, J., dissenting); id., 489 (“Five short years after the adoption of the constitution of 1818, Justice Swift wrote: ‘[I]t is the reason of man that makes him accountable for his actions, and where there is no reason there is no crime . . . .’ 2 Z. Swift, A Digest of the Laws of the State of Connecticut [1823] p. 361 . . . .”).

Justice Blackmun recently wrote with regard to the upholding of a death sentence predicated on the defendant’s guilty plea and refusal to put on mitigating evidence at the capital sentencing hearing: “To try, convict, and punish one . . . helpless to defend himself contravenes fundamental principles of fairness and impugns the integrity of our criminal justice system. I cannot condone the decision to accept, without further inquiry, the . . . ‘choice’ of a person who was so deeply medicated and who might well have been severely mentally ill.” Godinez v. Moran, U. S. , 113 S. Ct. 2680, 2696, 125 L. Ed. 2d 321 (1993) (Blackmun, J., dissenting). Neither could I, and accordingly I would grant the defendant’s petition for certification.

       The two questions on which the defendant seeks review are: (1) “Whether the Appellate Court correctly decided that there was no error in the trial court’s acceptance of [the] defendant’s Alford plea and/or the trial court’s refusing to let him withdraw said plea, the defendant having claimed that there was inadequate assurance that the plea was intelligently, knowingly and voluntarily made?”
      (2) “Whether the Appellate Court correctly decided that there was no error to be found in [the] defendant’s claim that the trial court failed to exercise its discretion to see if it seemed fair and just to allow [the] defendant to withdraw his plea?”

       General Statutes (Rev. to 1991) § 53a-134 provides in relevant part: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . .”

       For example, the defendant told the court that he had gone to school for “twelve years,” and had graduated high school from “Weaver. Hartford.” He told the court that his work record included “Carpentry” and “Off-set printing.” When asked the nature of his illnesses, he stated: “Right now I’m being seen by a psychiatrist at Hartford Correctional. . . . Right now . . . I’m being seen by a psychiatrist in Hartford. And medical reasons. I’m seeing a doctor.” When asked the name of the psychiatrist and the number of times he had seen the psychiatrist, the defendant answered: “There’s several. Three. I only know one—Weiner. . . . Several times. ... I don’t know the amount.” With respect to his medications, the defendant was able to tell the court that he took “Several. . . . About three different kinds, I think.” When asked whether the doctor had told him the nature of his condition, he stated: “I couldn’t understand it.” He was able to tell the court, with respect to previous psychiatric treatment: “I had ... at home, and in Hartford, in the Correction Center.” When asked by the court whether he had any trouble understanding the court’s questions, he responded: “I understand everything you asked me so far.” When asked whether he understood everything his attorney had said to him while discussing the case in the lockup, he said: “Most of it, yes . . . . I can’t remember everything in detail.” In discussing his need for medications, he stated: “I have black-outs and . . . some other thing, I don’t know.” When the court asked him whether he understood what the court explained as the maximum penalty for robbery in the first degree, the defendant stated: “I understand what you’re saying, yes.” At this point the transcript indicates that it was the “Court” that said “I understand what you’re saying, yes.” It is clear, however, from the response and its context that this was a typographical error, and that in fact the response was that of the defendant.
      When asked by the court whether he was on parole, he correctly responded “Yes,” and when asked how much time was left on his parole, he stated, “Yeah, about one year.” In addition, when asked whether he was then being held on bail or as a sentenced prisoner, he correctly responded “Both,” and when asked whether he understood that the court could impose its sentence in this case concurrent to the sentence for which he was on parole, he responded, “Now I do, yeah.” By the time the defendant was ultimately sentenced in this case on December 9,1992, he had completed serving the previous sentence.
      Furthermore, upon being canvassed by the court regarding the medications he was taking, he indicated that, although all of the medications were then in his system, when the court asked him whether the medications made it more difficult or easier for him to understand the questions, he stated, “Well right now I understand,” and, when asked whether he had any trouble understanding the court, he said, “I don’t think so.” In addition, when asked whether he remembered the names of the medications, he said, “No. I think I have a few names written down.” His attorney then read the names to the court. The court then asked: “Okay. But you don’t have any problem understanding me. I’m trying to be as clear as possible, but I want you to tell me if you don’t understand any question. You with me so far?” The defendant answered, “Yes.”
      In addition, the defendant responded appropriately to all of the other questions of the court during the canvass. In appropriate “Yes” and “No” answers, the defendant indicated his understanding that, by pleading guilty, he gave up his rights to a trial, to silence, to face and cross-examine his accusers, and to require the state to prove him guilty beyond a reasonable doubt. He indicated further that, although he was pleading guilty under the Alford doctrine, he did not agree with all of the facts of the crime stated by the prosecutor, that he understood he would probably be found guilty upon a trial, and that he had discussed the evidence with his attorney. He indicated to the court that he understood that: the “dangerous instrument” claimed by the state to have been used in the course of the robbery was a razor knife; the state would recommend a ceiling of eight years, but that he and his attorney could argue for less; if the court were inclined to impose more than eight years, he would have the right to withdraw his guilty plea and go to trial; although he did not agree with the state’s recommendation, it was in his best interest to enter the plea bargain; the court could impose the sentence either consecutive or concurrent to his present sentence; and, if he were not a United States citizen, his right to remain in •the United States could be affected by the plea. Finally, the defendant indicated to the court that his plea was voluntary and of his own free will, and that he had no questions of the court.

       That inference, if it were to be drawn, would also be supported by the statement in the report of the defendant’s psychiatric expert, who evaluated him for purposes of sentencing, that the defendant’s “disorder of a schizophrenic or schizoaffective nature ... is fairly controlled by psychotropic medication, Trilafon, Mellaril and Stelazine.”

       Although technically this motion only sought to dismiss the defendant’s counsel and for the court to appoint new counsel to represent him, because of the substance of the allegations made in the motion we consider it also as a motion to withdraw his earlier guilty plea.

       This is a reference to the Connecticut alcohol and drug abuse commission.

       For example, the defendant stated: “I . . . excuse me. I seen that also. I never ... I guess it’s just something that the police or whoever just decided just to give them all to me. Cuz I never used the names. I never been arrested on those names or remember using them names at all. . . . I never used those names at all. . . . None.” Indeed, one of the names was Darrell Bunkley, who was serving a twenty-two year sentence for manslaughter. See State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987). When the judge indicated that he knew Bunkley, the defendant stated: “Yeah I know. I know Darrell Bunkley too. . . . Yeah, I definitely wouldn’t use his or Clifford [Bunkley’s] name.” The defendant then volunteered, regarding another purported alias, Jan E. Johnson, that “I know. I’ve seen this. This has been on there a few years. And ummm. Jan Johnson . . . that’s, I thought it was a girl’s name. And, well, I’m not familiar with none of them. I don’t know why they got . . . you know, I don’t know how they got like that. So, sometimes the police just give you the names as aliases.” The defendant restated his claim that his attorney had misinformed him, as follows: “At the time [of the plea] I felt I was coerced, I was led. I felt I pleaded guilty because of the fact that the way it was brought to me about my criminal record, that I was convicted of a large amount of felonies; and at the time I was threatening to being considered for [prosecution as a persistent felony offender].” Although his attorney acknowledged that the state’s information of twenty-three felony convictions, which he had not challenged, was incorrect, the attorney also asserted his belief, on the basis of what he believed to be the correct felony convictions, that the defendant “did have exposure as a persistent felony offender” and that this was a consideration in accepting the plea bargain. The defendant then volunteered: “And another thing that I’d like to bring out too, that record, 1970-71, I think some of that is. I was fourteen, thirteen, fifteen years old. ... I want to say it couldn’t have been me.”

       The defendant does not raise the propriety of that ruling in this petition for certification.

       The record does not disclose that the court ever took formal action on the defendant’s pro se motion to withdraw his plea, because (1) neither the defendant nor his attorney brought that motion to the court’s attention at that time, and (2) the denial of his attorney’s motion to withdraw the plea was followed immediately by the sentencing proceedings, in which the defendant participated personally. Nonetheless, for purposes of the defendant’s petition for certification, we consider the court’s denial of the attorney’s motion to withdraw the plea to be an implicit denial of the defendant’s pro se motion, because the court’s findings regarding the voluntariness of the defendant’s plea necessarily encompassed a rejection of his claim that he had been under the improper influence of drugs at the time of his plea. It is relevant to that claim, however, that the defendant, who, in contrast to his attorney, was the one to make that claim, at no time during the proceedings on December 9,1992, returned to his earlier assertion that he had not pleaded guilty voluntarily because of the influence of his medications.

       The issues the defendant presented in his petition for certification are as follows: (1) “Whether the Appellate Court correctly decided that there was no error in the trial court’s acceptance of [the] defendant’s Alford plea and/or the trial court’s refusing to let him withdraw said plea, the defendant having claimed that there was inadequate assurance that the plea was intelligently, knowingly and voluntarily made?”
      (2) “Whether the Appellate Court correctly decided that there was no error to be found in [the] defendant’s claim that the trial court failed to exercise its discretion to see if it seemed fair and just to allow [the] defendant to withdraw his plea?”

       I note that the majority, to bolster its claim that the defendant was competent to enter a plea, relies on colloquies between the defendant and the trial court that took place weeks after the defendant appeared before the trial court and pleaded guilty. The appropriate focus is, of course, on the circumstances indicating the defendant’s competency at the time of his plea. I cannot join the majority in its view that the defendant’s answers to various questions on November 17 and December 9, 1992, indicating, among other things, an apparent surface understanding of the law of larceny, are sufficient to prove that he was competent to plead guilty in September of that year when he was under potent psychotropic medication. Instead, I find that the question is sufficiently in doubt and that the trial court should have allowed the defendant to withdraw his plea or conducted a hearing to determine the reliability of that plea.

        “An Alford plea allows a defendant in a criminal case to consent to punishment as if he were guilty without his express acknowledgment of his guilt.” State v. Watson, 198 Conn. 598, 601 n.3, 504 A.2d 497 (1986); see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The transcript of the plea canvass indicates that “Malleril” and “Tryliquon” were phonetic spellings. See footnote 5.

       In all probability, the “Tryliquon” and “Malleril” referred to in the transcript of the plea canvass; see footnote 4; were the “Trilafon” and “Mellaril” of the psychiatrist’s report. By reference to the Physician’s Desk Reference, the trial court could have determined that “Trilafon,” “Mellaril,” and “Stelazine” are prescription medications for the “management of the manifestations of psychotic disorders.” Physician’s Desk Reference (48th Ed. 1994) pp. 2172, 2058, 2279.

       Defense counsel stated to the trial court: “I’ve looked closely at [the psychiatrist’s] report as well which I’ve submitted to the court, and it just so happens that I read this report on Monday evening when I was at home. I noticed that [the defendant] is on medication Trilafon, Mellaril and Phenelzine. Ordinarily, I do not discuss these cases with my wife, but she is a nurse practitioner, somebody who administers diagnosis, who handles medications every day, and I said, what are these medications. She quickly agreed with what [the psychiatrist] had said, they’re very strong psychotropic medicines. She was surprised that anybody would be on all three. She was surprised at the level of the dosages which are shown in [the defendant’s] medical report. She said, your client is severely mentally ill.” Defense counsel presumably was referring to the “Stelazine” referenced in the report when he said “Phenelzine.”

       The majority believes that this inquiry was unnecessary, in part because neither the trial court nor the defendant’s attorney “had any perception that, despite the presence in his system of medications, the defendant did not understand what he was doing” and the record is “susceptible of the inference that the medications helped, rather than hindered, the defendant in understanding the proceedings and their consequences for him.” Again, the court holds the defendant to a burden of proving his insanity based on a cold record. From that skewed perspective, the majority could uphold any plea proceeding. The defendant’s burden, however, is simply to raise a sufficiently serious question regarding his competency to enter a plea that the trial court should have either allowed him to withdraw his plea or ordered an evidentiary hearing. Had the trial court held such a hearing, it would have had a meaningful basis for its “perception” regarding the defendant’s understanding of the proceedings. Furthermore, had the trial court held such a hearing, there would be no occasion to discuss the questionable “inference” divined from the record by the majority that the medication helped the defendant in understanding the proceedings.

       The majority relies on this court’s decision in State v. Watson, supra, 198 Conn. 598, upholding a trial court’s failure to hold a competency hearing and subsequent denial of a request to withdraw a plea where the defendant had been treated by a psychiatrist and taking medication.
      I recognize that Watson sets a high standard, requiring “substantial evidence of mental impairment” to be shown before a trial court assumes an affirmative duty of holding a hearing to ascertain the defendant’s competency to enter a plea. Id. I do not, however, believe that this standard is an appropriate interpretation of our statutory, Practice Book and constitutional safeguards regarding the necessity that a plea be the product of a knowing, voluntary and intelligent decision by a competent defendant. See, e.g., United States v. Parra-Ibanez, supra, 936 F.2d 595 (interpreting Rule 11 of the Federal Rules of Criminal Procedure and reversing conviction because the trial court did not make searching inquiry after the defendant stated at canvass that he had “ ‘been under the care of a doctor for a mental or emotional condition,’ ” and had, within the previous twenty-four hours, taken three medications); United States v. Cole, supra, 813 F.2d 46. Therefore, regardless of whether the defendant would “prevail” under Watson, I would grant certification so that this court could reevaluate the standard set out in that case. As this court pointed out in Statewide Grievance Committee v. Whitney, 227 Conn. 829, 843 n.22, 633 A.2d 296 (1993), plea bargaining is an important element of our system of criminal justice. To protect the integrity of these proceedings, at which defendants waive fundamental constitutional rights, we should set a reasonable standard governing the duty of trial courts to inquire into the competency of defendants who seek to plead guilty.

       The state argues that the defendant did not raise, at the December hearing, his mental illness and medicated status as a ground for withdrawing his plea. Nevertheless, the trial court had the psychiatrist’s report and the defendant’s written pro se motion to withdraw his plea, which had not been acted on. I cannot uphold the conviction of a person on the ground that his appointed counsel acquiesced in the proceedings—particularly in light of the defendant’s pro se motion to dismiss his counsel which stated that his plea was involuntary because the defendant had been under the influence of “mind-altering drugs.”

       This is particularly so in view of the fact that a colloquy between the state, defense counsel and the trial court indicated that the defendant’s criminal record was composed of crimes under various aliases that the state charged to the defendant, but it was unclear how many were accurate, and therefore it was unclear whether the defendant was exposed to a serious felony offender charge because of these former convictions. The trial court noted on the record that this exposure was a major factor, if not the predicate, for the plea. Therefore, the decision to plead was a complex one; to uphold this “choice” under circumstances indicating a high probability that the defendant was mentally ill and heavily medicated at the time is particularly unjust.

       The entire opinion of the Appellate Court reads as follows: “The judgment is affirmed.” State v. Blue, 33 Conn. App. 941, 942, 638 A.2d 1098 (1994).


text:
    New England Savings Bank v. Dennis P. Nicotra et al.
    (14652)
    Peters, C. J., Callahan, Berdon, Palmer and M. Hennessey, Js.
    Argued June 8
    decision released July 19, 1994

      Thomas A. Gugliotti, with whom, on the brief, were Ann M. Siczewicz and Stephen W. Aronson, for the appellant (plaintiff).

      Matthew M. Hausman, with whom were Barry K. Stevens and, on the brief, Kellie J. Garner, for the appellee (Federal Deposit Insurance Corporation as receiver of the intervening defendant First Constitution Bank).
   Per Curiam.

In this certified appeal, the only issue is whether an immediate appeal may be taken from an order of the trial court directing a receiver to disburse funds collected during an ongoing receivership. The plaintiff, New England Savings Bank, brought an action to foreclose its second mortgage on property owned by the defendant Dennis P. Nicotra (debtor). The first mortgagee, First Constitution Bank (inter-venor), received permission to intervene as a party defendant. The trial court granted the plaintiff’s petition for a rent receivership, but, despite the plaintiff’s objection, directed the receiver to pay to the intervenor whatever rent receipts remained after payment of maintenance expenses and a maintenance reserve. The plaintiff appealed from the trial court’s order to the Appellate Court, which granted the motion of the inter-venor to dismiss the appeal for lack of a final judgment. We granted the plaintiff’s petition for certification to review the merits of the dismissal and now conclude that certification was improvidently granted.

The procedural history of the trial court’s receivership orders starts with the court’s order of November 26, 1991, which, at the plaintiff’s request, appointed a receiver in the plaintiff’s action to foreclose its second mortgage. The order not only directed the receiver to collect the rents and to pay necessary maintenance expenses, but also directed the receiver to pay any excess funds, after the payment of expenses, to the intervenor. The plaintiff objected to the second part of the court’s order. On December 17, 1991, in response to the plaintiffs motion for reconsideration, the court directed that any excess collected funds be placed in an interest bearing escrow account pending the outcome of a prompt trial in the intervenor’s separate action to foreclose its first mortgage. After a trial of the intervenor’s first mortgage foreclosure action, in which the plaintiff participated, the trial court rendered a judgment of strict foreclosure and determined that the debt exceeded the value of the property by approximately $800,000. On May 11, 1992, the trial court granted the motion of the intervenor to modify its prior order and directed the receiver to resume payment to the intervenor of any funds available after payment of necessary current operating expenses and setting aside a $40,000 maintenance reserve for unanticipated expenses. Although the receivership has not been concluded and the plaintiffs second mortgage foreclosure action is still pending, the plaintiff has appealed the trial court’s May 11, 1992 order.

In the circumstances of this case, our case law supports the Appellate Court’s dismissal of the plaintiff’s appeal. “No appeal lies from the appointment of a receiver of rents in a foreclosure action. Young v. Polish Loan & Industrial Corporation, 126 Conn. 714, 715, 11 A.2d 395 (1940); Silver v. Kingston Realty Corporation, 114 Conn. 349, 350n, 158 A. 889 (1932). Review of that ruling must await an appeal from the final judgment of foreclosure. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 5, 469 A.2d 778 (1984).” Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 223, 487 A.2d 528, cert. denied, 474 U.S. 845,106 S. Ct. 135, 88 L. Ed. 2d 111 (1985). “A ruling concerning the propriety of the rent receiver’s conduct of the receivership is as interlocutory as is his initial appointment.” Hartford Federal Savings & Loan Assn. v. Tucker, supra, 5. Furthermore, “[although a receivership takes designated funds out of the control of the mortgagor, it does not vest their control in the foreclosing mortgagee, who ‘has no claim upon the income and profit in [the receiver’s] hands as such’; since the funds are legally in the possession of the court subject to whatever disposition it may order.” Id., 7.

As an interlocutory order, the trial court’s ruling would be immediately appealable only if it met the two part test articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We are persuaded, however, that, in the circumstances of this case, an order directing a receiver’s disbursement of funds prior to a judgment of foreclosure is neither an “order or action [that] terminates a separate and distinct proceeding” nor is it an “order or action [that] so concludes the rights of the parties that further proceedings cannot affect them.” Id.; see Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 132, 634 A.2d 1187 (1993).

On the facts of this case we conclude that certification was improvidently granted.

The appeal is dismissed.

       The plaintiff, New England Savings Bank, was the successor-in-interest to OmniBank of Connecticut, Inc., the original payee of promissory notes executed by the debtor and the original mortgagee of mortgages executed by the debtor as security for these promissory notes.
      The Union Trust Company was also named as a defendant in the plaintiff’s foreclosure action. It is not involved in this appeal.

       During the pendency of the petition for certification, the Federal Deposit Insurance Corporation was appointed as receiver for the intervenor and moved to be substituted as the intervening defendant-appellee. On October 28, 1992, the Appellate Court granted the motion to substitute.

       We granted the plaintiff’s petition for certification to appeal, limited to the following issue: “Whether an order for disbursements of the receiver’s funds prior to vesting of title and assessment of a deficiency is an appealable interlocutory order?” New England Savings Bank v. Nicotra, 224 Conn. 919, 617 A.2d 173 (1992).
      On May 21, 1993, after the filing of the briefs on the certified appeal, the Federal Deposit Insurance Corporation was appointed as receiver for the plaintiff. In this capacity, the Federal Deposit Insurance Corporation moved, on June 9, 1993, for a ninety day stay of the appellate proceedings pursuant to 12 U.S.C. § 1821 (d) (12). The stay was granted by this court on June 14, 1993. Thereafter, Citizens Savings Bank took over the asset involved in this case and its motion to be substituted as the plaintiff-appellant was granted by this court on May 25, 1994.