author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RAYMOND MARQUIS
    (15243)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued November 29
    decision released December 26, 1995

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, assistant state’s attorney, for the appellant (state).

      Matthew J. Collins, for the appellee (defendant).
   PER CURIAM.

The sole issue in this certified appeal is whether the state has presented a sufficient record for appellate review of the trial court’s denial of the state’s motion, filed pursuant to General Statutes § 54-86g, to videotape the testimony of a young child who allegedly had been the victim of a sexual assault. The state charged the defendant, Raymond Marquis, with sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21. As a consequence of the trial court’s denial of the state’s motion to videotape, the state represented that it could not proceed further with the charges against the defendant. The trial court consequently dismissed the charges against the defendant, discharged him from custody and gave the state permission, pursuant to General Statutes § 54-96, to appeal the judgment of dismissal.

In its appeal to the Appellate Court, the state claimed that the trial court had improperly denied the state’s motion to videotape the victim. The state, in its appeal, asserted that the trial court improperly had based its decision on the state’s refusal to permit the child to be examined by a defense psychiatrist. The Appellate Court held, however, that the trial court’s decision might equally be interpreted to have been based upon a determination that the state had failed to meet its statutory burden of proving, by clear and convincing evidence, that there was a need to videotape the child. State v. Marquis, 36 Conn. App. 803, 804, 653 A.2d 833 (1995). Accordingly, the Appellate Court concluded that the appellate record did not unambiguously disclose the basis for the trial court’s ruling. Id. In the perceived absence of the requisite clear record for appellate review of the issue presented by the state, the Appellate Court affirmed the judgment of the trial court. Id., 803-804.

We granted the state’s request for certification to appeal from the Appellate Court. Because the Appellate Court never reached the merits of the state’s appeal, we certified only the issue of the sufficiency of the record for appellate review. We reverse the judgment of the Appellate Court.

In support of its claim that the record is adequate for review, the state relies on the trial court’s oral memorandum of decision, in which the court described the procedure that it had followed in its rulings with regard to videotaping. The court first heard the state’s case, and determined that the state had made a prima facie showing in favor of the videotaping. It then ruled that “the defense at this time is entitled to examination of the child.” Because of objections to such an examination voiced by the child’s mother and her guardian ad litem, the state refused to permit this examination. The court then ruled: “On the refusal of the State to permit the child to be examined by the defense psychiatrist, then the Court does have to deny the motion for videotaping.” Thereafter, upon the representation of the state that, without the videotaping, it would not be able to proceed, both the state and the defendant moved for dismissal of the case. The court granted the defendant’s motion for dismissal and the state’s motion for permission to appeal.

We agree with the state that this record is unambiguous. A reasonable reading of the record discloses that the trial court refused to permit videotaping of the child solely because the defendant’s psychiatrist was not permitted to examine the child. This case must therefore be remanded to the Appellate Court for a consideration of the merits of the trial court’s ruling.

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

       General Statutes § 54-86g provides in relevant part: “Testimony of victim of child abuse. Court may order testimony taken outside courtroom. Procedure. (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. . . . [T]he court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. . . .”

       General Statutes (Rev. to 1991) § 53a-70 provides in relevant part: “Sexual assault in the first degree: Class B felony: One year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with a person under thirteen years of age.”

       General Statutes § 53-21 provides: “Injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 54-96 provides: “Appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       We granted the state’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly affirm the trial court’s judgment dismissing the information on the ground that it was impossible to ascertain from the record the basis on which the trial court denied the state’s motion to videotape the victim’s testimony?” State v. Marquis, 233 Conn. 902, 657 A.2d 641 (1995).


source: Caselaw Access Project

author: CALLAHAN, J.

license: Public Domain

text:
    NEW ENGLAND SAVINGS BANK v. MEADOW LAKES REALTY COMPANY ET AL. ANGUS MCDONALD/GARY SHARPE AND ASSOCIATES, INC. v. GLEN LAKES REALTY COMPANY ET AL.
    (15207)
    Peters, C. X, and Callahan, Borden, Norcott, and Palmer, Js.

      Argued November 1, 1995
    decision released January 2, 1996

      John S. Bennet, for the appellant (Angus McDonald/ Gary Sharpe and Associates, Inc.).

      Jeffrey F. Buebendorf with whom, on the brief, was Michael D. Colonese, for the appellee (ALI, Inc.).
   CALLAHAN, J.

The sole issue in this certified appeal is whether the Appellate Court properly dismissed an appeal because it had not been timely filed. Underlying the appeal are two foreclosure actions with respect to the same real property in East Lyme. One, Angus McDonald/Gary Sharpe & Associates, Inc. v. Glen Lakes Realty, involved the foreclosure of a mechanic’s lien. The other, New England Savings Bank v. Meadow Lakes Realty Co., involved a mortgage foreclosure. The two actions were consolidated for trial in order to resolve competing claims of priority between the two liens. In the mortgage foreclosure action, a motion to substitute ALI, Inc. (ALI), as the plaintiff was granted because New England Savings Bank, through the United States comptroller of the currency, had transferred and set over to ALI the subject mortgage deed and note for $400,000. ALI also was substituted for New England Savings Bank in the mechanic’s lien foreclosure action in which the bank was named as a defendant.

On September 13, 1994, during a trial on the merits of the foreclosure actions, the trial court ruled that the mechanic’s lien held by Angus McDonald/Gary Sharpe and Associates, Inc. (Associates), was invalid and ordered it discharged. Thereafter, the court proceeded with the trial in order to determine the total amount due ALI on its mortgage note, set the law days and award various fees. On September 26, Associates filed a notice of reservation of right to appeal the discharge of its mechanic’s lien pursuant to Practice Book § 4002. On October 24, the trial court rendered a judgment of strict foreclosure in favor of ALI. As part of that judgment, the court set law days and awarded counsel fees, a title search fee and appraisal fees.

On November 9, 1994, Associates appealed to the Appellate Court from the judgment of discharge of its mechanic’s hen. On November 18, 1994, ALI moved to dismiss Associates’ appeal, claiming that the appeal had not been timely filed pursuant to General Statutes § 49-35c (b). The Appellate Court, without comment, granted ALI’s motion to dismiss on December 14,1994. We granted Associates’ petition for certification limited to the following question: “Did the Appellate Court properly dismiss this appeal for untimeliness?” Angus McDonald/Gary Sharpe & Associates, Inc. v. Glen Lakes Realty, 232 Conn. 915, 655 A.2d 259 (1995).

For purposes of our review of the Appellate Court’s dismissal of Associates’ appeal, we assume that the Appellate Court based its dismissal on the only grounds alleged in ALI’s motion to dismiss, i.e., that Associates’ appeal was not timely filed within the seven day time period mandated by § 49-35c (b). ALI claims that even though Associates’ hen was discharged during a trial on the merits and not as a result of a pretrial apphcation or motion, the seven day appeal period of § 49-35c (b) is applicable. We disagree with ALI and with the AppeUate Court’s dismissal of Associates’ appeal. We conclude that Associates’ appeal is not controhedby § 49-35c and, therefore, should not have been dismissed for failure to adhere to the seven day time limitation contained in § 49-35c (b).

Section 49-35c (b) provides in pertinent part that “[n]o appeal may be taken from the order [discharging a mechanic’s hen] except within seven days thereof.” (Emphasis added.) Section 49-35c (a) limits the applicability of § 49-35c (b) to “order[s] entered as provided in subsection (b) of section 49-35b . . . .” The plain language of § 49-35c (a) and (b), therefore, manifests the legislative intent that the seven day time limit apply only to orders entered pursuant to § 49-35b. Section 49-35b, in turn, refers back to “hearingfs] held on the apphcation or motion set forth in section 49-35a . . . .” Sequentially, § 49-35a (a) provides: “Whenever one or more mechanics’ liens are placed upon any real estate . . . the owner of the real estate, if no action to foreclose the hen is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced. ...” Similarly, if an action to foreclose a mechanic’s lien is already pending, a party may seek a pretrial adjudication of the validity of the lien under § 49-35a (c), which provides: “If an action for foreclosure of the hen is pending before any court, any party to that action may at any time prior to trial, unless an apphcation under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced.”

Section 49-35a (a) and (c) provide for a pretrial determination of probable cause to establish the validity of a mechanic’s hen on the apphcation of the owner of the liened real estate or on the motion of any party. The court may deny an apphcation for the discharge of a mechanic’s hen if probable cause to sustain the validity of the lien is established at the pretrial hearing. The court may also order the lien discharged if probable cause is not established or if the hen’s invalidity is established by clear and convincing evidence. See General Statutes § 49-35b (b). This pretrial procedure allows for a prompt and relatively inexpensive pretrial determination of the validity of a mechanic’s hen prior to the trial of a foreclosure action. See Pero Building Co. v. Smith, 6 Conn. App. 180, 183, 504 A.2d 524 (1986).

In this case, no motion or apphcation pursuant to § 49-35a to discharge the mechanic’s hen was made before trial. The entire statutory scheme on which ALI rehes, however, is directed to and intended to apply only to the pretrial adjudication of the validity of a mechanic’s lien, and is wholly inapplicable to the discharge of a mechanic’s hen as part and parcel of a full trial on the merits of a foreclosure as was the case here. We conclude, therefore, that the seven day time limit in § 49-35c (b) is inapplicable under the present circumstances. Accordingly, Associates’ appeal should not have been dismissed on the ground that it was filed after the expiration of the mandatory seven day time period.

ALI raises in this court for the first time the argument that even if the seven day period of § 49-35c (b) is inapplicable to Associates’ appeal, the appeal should have been dismissed as untimely because it was not filed within the twenty day time limit provided by Practice Book § 4009. This twenty day appeal period is applicable “except where a different period is provided by statute.” We have previously held that the twenty day time limit of § 4009, in contrast to many statutory time limits, does not implicate a court’s subject matter jurisdiction. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 761-62, 628 A.2d 1303 (1993). Enforcement of the twenty day limit is, therefore, within the discretion of the court before which the appeal is pending. We decline to decide an issue properly within the Appellate Court’s discretion with which that court was never presented.

The judgment is reversed and the case is remanded to the Appellate Court for further proceedings according to law.

In this opinion the other justices concurred.

       The court declared that the lien was invalid because it did not adequately describe the property that was subject to the lien; General Statutes § 49-34 (1) (A); because the lien was placed on one parcel based upon work done on another parcel; see DeWolf v. Bonee, 91 Conn. 712, 101 A. 233 (1917); because at least part of the lien was for work performed without the consent of the record owner in violation of General Statutes § 49-33 (a); see Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591, 620 A.2d 127 (1993); and because of the potential conflict of interest of Angus McDonald who served as both a partner and a potential creditor of Associates.

       Practice Book § 4002 provides: “Appeal from Judgment Disposing of Part of Issues
      “(a) A judgment pursuant to subsections (b) or (c) of this rule that disposes of certain of the issues between the parties or of part or all of the issues between some of them may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues or as to other parties. Alternatively, the party or parties may reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes and as respects all parties; provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court accompanied by a certification that a copy thereof has been served on each counsel of record in accordance with the provisions of Sec. 4014 within twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues.
      “(b) When an entire complaint, counterclaim or cross complaint has been stricken, the trial court may, pursuant to Sec. 157, render judgment on such stricken complaint, counterclaim or cross complaint.
      “When fewer than all of the counts of a complaint, counterclaim or cross complaint have been stricken, the trial court may, upon motion pursuant to this subsection, render judgment upon such stricken counts if (1) such counts are directed against a party against whom no relief is sought in the remaining counts of such pleading, or (2) the parties consent to entry of judgment and the trial court makes a written finding or written determination that the issues involved in the stricken counts are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified. A party entitled to appeal from such judgment may appeal regardless of which party moved for the judgment to be made final.
      “(c) When a motion to dismiss pursuant to Sec. 142 or a summary judgment pursuant to Sec. 378 has been granted upon an entire complaint, counterclaim or cross complaint, such dismissal or summary judgment shall constitute a final judgment.
      “When fewer than all of the counts of a complaint, counterclaim or cross complaint have been dismissed, or when summary judgment has been granted upon fewer than all of the counts of a complaint, counterclaim or cross complaint, such partial dismissal or partial summary judgment shall constitute a final judgment if (1) such counts are directed against a party against whom no relief is sought in the remaining counts of such pleading, or (2) the parties consent to the rendition of judgment and the trial court makes a written finding or written determination that the issues involved in the counts as to which a motion to dismiss or for summary judgment has been granted are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified.”

       General Statutes § 49-35c provides: “Appeal, (a) Any order entered as provided in subsection (b) of section 49-35b shall be deemed a final judgment for the purpose of appeal.
      “(b) No appeal may be taken from the order except within seven days thereof. The effect of the order shall be automatically stayed for the seven-day period. If an appeal is taken within the seven-day period, the party taking the appeal may, within that period, file an application with the clerk of the court in which the order was issued, requesting a stay of the effect of the order pending the appeal, which application shall set forth the reasons for the request. A copy of the application shall be sent to each other party by the applicant. Upon the filing of the application, the effect of the order shall be further stayed until a decision is rendered thereon. A hearing on the application shall be held promptly. The order shall be stayed if the party taking the appeal posts a bond, as provided in subsection (c) of this section.
      “(c) Upon the hearing on the application, the court shall: (1) Upon motion of the party taking the appeal, set a bond with surely for the stay of the order as provided in subsection (b) of this section, in an amount which the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives that bond the order shall be stayed; or (2) grant the stay; or (3) deny the stay; or (4) condition the granting of the stay upon the giving of such a bond.
      “(d) Any order of discharge or reduction or any order of any such stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such lien was originally recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of the order is filed, until such time as a decision granting or denying the stay has been rendered.”

       On December 21, 1994, Associates filed a motion for reconsideration. That motion was denied on January 18, 1995.

       General Statutes § 49-35b provides: “Burden of proof at hearing. Authority of court, (a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.”

       General Statutes § 49-35a provides in relevant part: “Apphcation for reduction or discharge. Forms. Hearing. Entry fee. (a) Whenever one or more mechanics’ liens are placed upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced. The court or judge shall thereupon order reasonable notice of the application to be given to the lienor or lienors named therein and, if the application is not made by all owners of the real estate as may appear of record, shall order reasonable notice of the application to be given to all other such owners, and shall set a date or dates for the hearing or hearings to be held thereon. If the lienor or lienors or any owner entitled to notice is not a resident of this state, the notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct. At least four days notice shall be given to the lienor, lienors or owners entitled to notice prior to the date of the hearing.”


text:
    STATE OF CONNECTICUT v. JOSE GARCIA
    (15303)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued October 31, 1995
    decision released January 2, 1996

      Monte P. Radler, assistant public defender, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom were Judith M. Rossi, assistant state’s attorney, and, on the brief, Eugene J. Callahan, state’s attorney, and David Cohen, senior assistant state’s attorney, for the appellee (state).
   PER CURIAM.

This appeal raises two issues: (1) whether this court had the authority to stay the running of the statutory eighteen month period for commitment for the restoration of the defendant’s competency during the pendency of his prior interlocutory appeal; and (2) whether the trial court properly concluded that the state had proven by clear and convincing evidence that, to a reasonable degree of medical certainty, involuntary medication of the defendant will restore his competency to stand trial and that the drug regimen prescribed for him will not cause an unreasonable risk to his health.

This is the second appeal by this defendant that we have considered. In State v. Garcia, 233 Conn. 44, 84-86, 658 A.2d 947 (1995) (Garcia I), we held that “[i]n order for a court to authorize the involuntary medication of an incompetent defendant to render him competent to stand trial . . . the state must demonstrate [by clear and convincing evidence] that: (1) to a reasonable degree of medical certainty, involuntary medication of the defendant will render him competent to stand trial; (2) an adjudication of guilt or innocence cannot be had using less intrusive means; (3) the proposed treatment plan is narrowly tailored to minimize intrusion on the defendant’s liberty and privacy interest; (4) the proposed drug regimen will not cause an unreasonable risk to the defendant’s health; and (5) the seriousness of the alleged crime is such that the state’s criminal law enforcement interest in fairly and accurately determining the defendant’s guilt or innocence overrides the defendant’s interest in self-determination.” In addition, sua sponte, we addressed the issue of what effect an appeal by the defendant from an involuntary medication order may have on the running of the time limit imposed on involuntary commitment for restoration of competency pursuant to General Statutes § 54-56d. We remanded the case to the trial court to determine whether the state had met its burden of demonstrating by clear and convincing evidence each of the requisite factors for the involuntary medication of an incompetent defendant and held that “the running of the eighteen month period was stayed on August 26,1994, when the defendant appealed to the Appellate Court. It shall recommence on the eleventh day after [the decision in Garcia I].” Id., 93.

After a further evidentiary hearing, the trial court found that the state had demonstrated by clear and convincing evidence each of the requisite factors. Accordingly, the trial court issued an order authorizing the state to medicate the defendant involuntarily. Additionally, the trial court rejected the defendant’s argument that this court lacked the authority to stay the running of the statutory eighteen month period of commitment during the defendant’s initial appeal. This appeal followed.

I

We first address the defendant’s challenge to our authority to toll the running of the statutory period during which the state may attempt to restore the defendant’s competency to stand trial. Pursuant to § 54-56d (i) (1), if there is a substantial probability that competency can be restored, a defendant who is deemed incompetent to stand trial may be committed for a period “of the maximum sentence which the defendant could receive on conviction of the charges against him or eighteen months, whichever is less.” This statutory provision was enacted in response to Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), so as to ensure that defendants are not committed for indefinite periods. In this case the defendant is charged with murder. Thus, the state has a maximum period of eighteen months in which it may attempt to restore the defendant’s competency to stand trial.

As we noted in Garcia I, § 54-56d offers no guidance as to the effect that an interlocutory appeal taken by a defendant to challenge a trial court’s medication order has upon the running of this time period. Garcia I, supra, 233 Conn. 92. Therefore, in order to prevent a defendant from effectively escaping a trial court’s medication order by taking an appeal, which could consume the eighteen month period, we held that the filing of an interlocutory appeal by a defendant automatically stays or tolls the running of the time period. Id.

Pursuant to Practice Book § 4183, this court may “on its own motion or upon motion of any party . . . order a stay of any proceedings ancillary to a case on appeal.” Moreover, this court has statutory authority, pursuant to General Statutes § 52-265 (a) (2), to “fashion a remand that is reasonably necessary or appropriate to facilitate its judgment.” National Elevator Industry Pension, Welfare & Educational Funds v. Scrivani, 229 Conn. 817, 822, 644 A.2d 327 (1994). Without such a stay, the defendant could escape the practical effect of this court’s judgment by simply taking an appeal from an order requiring medication. Such a stay, therefore, is reasonably necessary and appropriate to facilitate our judgment. Consequently, we hold that this court is authorized to toll the statutory period during the time of appeal so as to effectuate the purpose of § 54-56d.

In this case, the defendant was initially committed on September 23, 1993, after having been found to be incompetent to stand trial. On this date, the eighteen month statutory period began to run. On January 11, 1994, the trial court heard evidence regarding whether the defendant should be involuntarily medicated, after which it entered an order to medicate the defendant, but stayed the order, thereby allowing the defendant the opportunity to present argument contesting the order. On January 20, 1994, the court again stayed the medication order pending further argument regarding the defendant’s due process rights. On August 10,1994, the court reissued its order authorizing the medication of the defendant, but stayed that order for twenty days. On August 26, 1994, the defendant filed an appeal in the Appellate Court challenging the medication order. The appeal was subsequently transferred to this court, pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). On May 9, 1995, we rendered our decision and held that the eighteen month time period would recommence at the expiration of the ten day period in which a party may file a motion to reargue before this court. Garcia I, supra, 233 Conn. 92. Thereafter, on July 24, 1995, the trial court reheard evidence and issued an order to medicate. On August 2, 1995, the defendant filed the present interlocutory appeal.

Section 54-56d was designed to provide the state with a certain period of time in which to restore a defendant’s competency. To implement the statutory policy in the circumstances of this case, the running of the statutory period shall be tolled (1) from August 26, 1994, to May 20, 1995, and (2) from August 2, 1995, to ten days after this decision is released.

II

Regarding the merits of the forced medication order, the defendant challenges the sufficiency of evidence with respect to only the first and fourth factors enumerated in Garcia I — that is: (1) “to a reasonable degree of medical certainty, involuntary medication of the defendant will render him competent to stand trial”; and (2) “the proposed drug regimen will not cause an unreasonable risk to the defendant’s health.” Garcia I, supra, 233 Conn. 84-85.

As a result of the rehearing, the trial court had the benefit of testimony from four medical experts and the defendant’s medical guardian. On January 11, 1994, during the initial hearing, the trial court heard testimony from Timothy Schumacher, a clinical psychologist at Whiting Forensic Institute and a member of the defendant’s treatment team. Schumacher testified that the defendant lacked the capacity to assist in his own defense, but that there was a “substantial probability” that the defendant could be restored to competency if he were medicated. Additionally, Schumacher testified that “special precautions would be taken so that the risk [of any side effects] would be minimized.”

The defendant offered the testimony of Kenneth Selig, a forensic psychiatrist experienced in both the administration of antipsychotic medication and the evaluation of competency. In Selig’s opinion, the defendant’s condition was consistent with either organic brain damage or a psychiatric disorder. According to Selig, if the defendant’s incompetency was a result of organic brain damage, administration of anti-psychotic medication would be futile. If, however, the defendant suffers from a paranoid disorder, administration of antipsychotic medication would be the best form of treatment for restoring his competency. According to Selig, approximately one third of the individuals treated with antipsychotic medication experience an improvement in their condition, while one third experience a deterioration in their condition. Additionally, Selig expressed concern regarding the possible side effects of antipsychotic medications: blurred vision; dry mouth; urinary retention; severe movement problems; tardive dyskinesia; neuroleptic malignant syndrome; and a 1 percent chance of fatality.

Next, the trial court heard testimony from Earl Biassey, the defendant’s treating psychiatrist. Because the defendant has no memory deficit, no loss of concentration and no attention deficit, Biassey expressed the opinion that his psychosis is not organic in nature. Nevertheless, Biassey testified that, even if the defendant’s psychosis is organic in nature, treatment with antipsychotic medication could lessen the defendant’s sense of confusion. In contrast to Selig’s testimony, Biassey also opined that “somewhere between 75 and 78 percent” of patients with psychotic disorders respond positively to medication. Biassey concluded that there is a “high percentage of possibility” that the defendant could be restored to competency through medication. Biassey testified that on a few occasions, the defendant had consented to being medicated, and in those instances, the defendant had become more communicative and had experienced no harmful side effects. Moreover, Biassey further testified that serious side effects rarely occur and that, if medicated, the defendant would be closely monitored for any such side effects. At the July, 1995 rehearing, Biassey reaffirmed his opinions and conclusions.

J. Leslie Kurt, an assistant clinical professor at the Yale University School of Medicine specializing in the treatment of patients with mental illness and substance abuse disorders, also testified at the rehearing. Kurt, in concurrence with Biassey’s opinion, testified that there was no clinical evidence that the defendant suffered any organic brain damage. Also in accord with Biassey, Kurt testified that, in her opinion, two thirds of the persons who are treated with antipsychotic medication derive some benefit from the treatment. Kurt stated that the side effects of such treatment are generally not serious and that there is a “substantial probability” that the defendant’s condition would improve significantly with the administration of medication.

Finally, at the rehearing, the trial court heard testimony from Hollace Brooks, the court-appointed medical guardian for the defendant. After reviewing the defendant’s medical records and the transcripts of the previous hearing, and after speaking with Biassey, Selig and Kurt, Brooks testified that, in her opinion, it is in the defendant’s “best medical interest to be involuntarily medicated because the possible benefits of the medication substantially outweigh the possible side effects.”

With this testimony before it, the trial court found that the state had met its burden of demonstrating by clear and convincing evidence that each of the five criteria set forth in Garcia I had been satisfied. We agree. The trial court’s factual findings are not clearly erroneous. As the trial court noted, all the experts, including Selig, agreed “that if the defendant [was] ever to be restored to competency the administration of antipsychotic medication would be the best approach.” Schumacher, Biassey and Kurt all opined that not only is there a substantial probability that the defendant’s competency could be restored if he were medicated, but also that the medication did not pose an unreasonable risk to the defendant’s health. Therefore, there is sufficient evidence to support the trial court’s decision.

The trial court’s order to medicate the defendant involuntarily is affirmed and the running of the statutory period is tolled for the duration of this appeal and the appeal in Garcia I.

       The defendant appealed to this court purportedly pursuant to General Statutes §§ “51-199 (b) (a)” and “52-265a (a).” We presume that the reference to § “51-199 (b) (a)” means § 51-199 (b), because there is no § “51-199 (b) (a).” This appeal does not fall within any of the provisions of § 51-199 (b) for direct appeal to this court. Moreoever, the appeal was not properly within the scope of § 52-265a, because it was not certified as such by the Chief Justice. Thus, the appeal was properly within the jurisdiction of the Appellate Court. Nonetheless, this court retained jurisdiction of the appeal pursuant to General Statutes § 51-199 (c) and Practice Book § 4023.


author: PALMER, J.

text:
    STATE OF CONNECTICUT v. KAROL DOMIAN
    (15154)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued September 26, 1995
    decision released January 2, 1996

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, assistant state’s attorney, for the appellee (state).
   PALMER, J.

The sole issue presented by this certified appeal is whether the guilty plea of the defendant, Karol Domian, was entered knowingly, voluntarily and intelligently, notwithstanding the trial court’s failure to inform him of the mandatory minimum sentence. The defendant pleaded guilty to the crime of arson in the first degree, a class A felony punishable by a term of imprisonment of not less than ten nor more than twenty-five years, and was sentenced to a prison term of ten years. The defendant appealed from the judgment of conviction to the Appellate Court claiming that the trial court’s failure to inform him of the mandatory minimum sentence violated his federal constitutional right to due process and, therefore, that he was entitled to withdraw his plea and proceed to trial. The Appellate Court concluded that, under the circumstances presented, the defendant had not established a constitutional violation and, accordingly, affirmed the judgment of the trial court. State v. Domian, 35 Conn. App. 714, 646 A.2d 940 (1994). We granted the defendant’s petition for certification, and now affirm the judgment of the Appellate Court.

The facts relevant to this appeal are set forth in the opinion of the Appellate Court. “On November 9, 1992, the defendant was arrested and charged with arson in the third degree in violation of General Statutes § 53a-113, and false statement in violation of General Statutes [Rev. to 1991] § 53a-157. The arson charge arose from a fire on February 28, 1992, at 132 Gold Street in New Britain. The subject premises, an abandoned three-family dwelling, had been an arson target in 1991. As of February 28, 1992, the building was boarded up and scheduled for demolition. On November 9, 1992, in an unrelated matter, the defendant was also charged with conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 and 53a-103. On December 1, 1992, the defendant was arrested in another unrelated matter and charged with burglary in the third degree in violation of General Statutes § 53a-103, larceny in the second degree in violation of General Statutes § 53a-123, and conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123. On March 9, 1993, the state filed a substitute information, raising the charge of arson in the third degree to arson in the first degree in violation of [General Statutes] § 53a-111.

“On May 13, 1993, the defendant pleaded guilty, pursuant to [North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)], to arson in the first degree, burglary in the third degree and larceny in the second degree. The state entered a nolle prosequi of the remaining charges. . . .

“During the plea canvass in this case, the trial court first ascertained that the defendant was not under the influence of drugs, alcohol or medication, and that the defendant had had enough time to talk to his attorney about the case and the decision to plead guilty. The court next informed the defendant of the elements of each of the three charges to which he was pleading guilty, and of the maximum sentence that could be imposed for each charge. The court then enumerated the rights that the defendant was giving up by his decision to plead guilty. After ensuring that no one had forced or threatened the defendant to plead guilty, the trial court told the defendant that the state would be ‘recommending substantial incarceration’ and that the court was planning to impose a sentence of ten years. The trial court explained to the defendant: ‘[Y]our lawyer will have the right to argue for less than [ten years], but I’ve told him not to be optimistic; it would take a miracle for me to give you less than ten years.’ After the defendant consistently acknowledged that he understood what the court planned to do, the state’s attorney described the allegations supporting the charges. Then after asking the defendant, the defendant’s attorney, the state’s attorney, and the defendant’s mother if there were any questions or problems, the trial court accepted the defendant’s plea as knowing and voluntary, and found the plea to be supported by a factual basis.” State v. Domian, supra, 35 Conn. App. 715-22.

On September 14, 1993, following a presentence investigation, the trial court, Damiani, J., sentenced the defendant to concurrent sentences of ten years on the arson charge and five years each on the burglary and larceny charges. The defendant appealed from the judgment of conviction claiming, inter alia, that his guilty plea to the charge of arson in the first degree was not knowingly and voluntarily made. The Appellate Court affirmed the judgment of the trial court, concluding that the court’s “failure to inform the defendant of the mandatory minimum [sentence] does not render the plea unknowing or involuntary. In light of the detailed explanation of the sentence the trial court planned to impose, we cannot reasonably find that the defendant had any realistic expectation of getting less than a ten year sentence, despite the bargained for opportunity to argue for less than ten years. We are unpersuaded that the defendant would have changed his plea if informed of the mandatory minimum sentence of ten years, part of which could have been suspended.” Id., 722. We agree with the conclusion of the Appellate Court and, therefore, affirm its judgment.

The defendant did not move to withdraw his guilty plea prior to sentencing, electing instead to raise the issue of the defective plea canvass for the first time on appeal. Accordingly, he seeks review of the trial court’s failure to apprise him of the mandatory minimum sentence under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, as plain error under Practice Book § 4185. We conclude that the defendant is not entitled to relief either under Golding or under the plain error doctrine.

In State v. Golding, supra, 213 Conn. 239-40, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) As the Appellate Court held and the state concedes, the first two prongs of Golding are met here. We proceed, then, to a consideration of whether, under the third prong, the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

“A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, 243; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Paulsen v. Manson, supra [489]; State v. Gilnite, [202 Conn. 369, 381, 521 A.2d 547 (1987)]. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one’s accusers. Boykin v. Alabama, supra [234]; McCarthy v. United States, supra [466]; State v. Gilnite, supra, 381 n.14. To ensure that a defendant is accorded due process, [therefore] the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, 243 n.5; McCarthy v. United States, supra [466]; Paulsen v. Manson, supra [489]; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, [200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 473, 93 L. Ed. 2d 373 (1986)]; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985).” State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant’s “full understanding of what the plea connotes and of its consequences”; Boykin v. Alabama, supra, 395 U.S. 243-44; “the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights [implicated by the guilty plea].” State v. Badgett, supra, 200 Conn. 418. To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§ 711 and 712, which enumerate the responsibilities of the court in conducting the plea canvass. However, because the “determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances”; State v. Wright, supra, 207 Conn. 287; the plea may satisfy constitutional requirements even in the absence of “literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712.” State v. Badgett, supra, 418. Thus, although the trial court never expressly informed the defendant of the mandatory minimum sentence for arson in the first degree as required by Practice Book § 711 (2), that fact alone is not dispositive of the defendant’s constitutional claim. We must determine, instead, whether, in light of all of the circumstances evident from the record before us, the trial court’s failure to inform the defendant of the statutorily required minimum sentence rendered his guilty plea unknowing or involuntary. See State v. Wright, supra, 287-88.

Our inquiry, therefore, must focus upon the effect, if any, that the trial court’s noncompliance with Practice Book § 711 (2) had on the defendant’s ability to make a fully informed and voluntary plea decision. Thus, the ultimate issue to be resolved is “ ‘whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.’ ” Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir. 1980), quoting Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976); Coleman v. Commissioner of Correction, United States District Court for the district of Connecticut, Docket No. 2:91-CV0005 (December 30, 1991), aff'd, 969 F.2d 1041 (2d Cir. 1992); State v. Dennis, 30 Conn. App. 416, 424-25, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993); see also D’Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984) (“plaintiffs misapprehension as to his exposure in respect to the minimum term of his indeterminate sentence, even if proved, would [not] constitute such a significant deficit in his otherwise full comprehension of the consequences of his guilty plea as to invalidate it unless the deficiency would have changed his decision to plead guilty”). We conclude that, although the defendant may not have been aware of the mandatory minimum sentence for arson in the first degree, there is nothing in the record of the trial court proceedings to suggest that the defendant was unaware of the actual sentencing possibilities and, further, that even if his understanding of the possible sentencing alternatives was less than perfect, the record does not support a claim that any additional information would have made a difference in his decision to plead guilty.

The sole deficiency alleged by the defendant is that the trial court failed to inform him of the mandatory minimum sentence. Literally speaking, the record supports this contention, because at no time during the plea canvass did the trial court apprise the defendant of the mandatory minimum sentence for the crime of arson in the first degree. The trial court did make it very clear, however, that it intended to impose a ten year sentence and that the possibility of a lesser sentence was so remote as to be virtually nonexistent. Furthermore, although the trial court was statutorily prohibited from imposing a prison term of less than ten years, the court was free, in the exercise of its discretion, to suspend some or all of the sentence. See State v. Hanson, 210 Conn. 519, 525, 556 A.2d 1007 (1989); State v. O’Neill, 200 Conn. 268, 289, 511 A.2d 321 (1986). Although we again underscore the importance of full compliance with the requirements of Practice Book § 711, the constitutional mandate is not strict adherence to the rule but, rather, an understanding by the defendant of the “actual sentencing possibilities.” Hunter v. Fogg, supra, 616 F.2d 58. On the facts before us, we are unable to find a constitutionally significant distinction between the trial court’s statement that “it would take a miracle” for the defendant to receive a sentence of less than ten years, on the one hand, and, on the other, an advisement of the mandatory minimum sentence in strict compliance with Practice Book § 711 (2).

The defendant also maintains that his guilty plea was not knowingly entered because his bargained-for right to argue for a sentence of less than ten years — which he asserts, and we assume, constituted an important part his plea agreement — was meaningless in light of the ten year mandatory minimum prison term. This claim might well have merit if the mandatory minimum sentence could not be suspended. Because the trial court retained the discretion to fashion a suspended sentence, however, the defendant’s right to argue for a sentence requiring him to serve less than ten years in prison was in no sense illusory. Indeed, the trial court’s comments at the sentencing hearing indicate that it seriously considered, and ultimately rejected, the defendant’s request for leniency.

Moreover, because the trial court could have suspended some or all of the mandatory minimum ten year term of imprisonment, there is no reason to believe that a plea canvass in complete conformity with Practice Book § 711 (2) “would have made any difference in [the defendant’s] decision to enter a [guilty] plea.” Hunter v. Fogg, supra, 616 F.2d 58. We may fairly assume that a principal reason why the defendant decided to plead guilty was to limit his prison exposure to ten years, a term far less than he would have faced if he had been convicted of the charges after a trial. See State v. Collins, 207 Conn. 590, 598, 542 A.2d 1131 (1988) (reasonable to infer that dominant consideration in plea negotiation resulting in agreed-upon sentence of 17 year prison term was defendant’s exposure to consecutive sentences totaling 122 years). In addition, we may also presume that the defendant was well aware of the trial court’s authority to suspend some or all of any sentence imposed. See State v. Hanson, supra, 210 Conn. 525; State v. O’Neill, supra, 200 Conn. 289; see also footnote 17.

Our conclusion is fully consistent with Coleman v. Commissioner of Correction, supra, Docket No. 2:91-CV0005, upon which the defendant relies. In Coleman, the petitioner had entered into a plea agreement with the state pursuant to which he was to be sentenced to a prison term of thirty-five years. At the plea canvass, Coleman was advised by the trial court that he faced a mandatory minimum sentence of thirty years if convicted on all counts when, in fact, he was actually exposed to a mandatory minimum prison term of only five years. After receiving the agreed upon thirty-five year sentence, Coleman appealed, claiming that his misapprehension of the mandatory minimum sentence had rendered his plea constitutionally infirm. The Appellate Court affirmed his conviction; State v. Coleman, 17 Conn. App. 307, 552 A.2d 442 (1989); and the defendant brought a habeas corpus action in the United States District Court, which, after a hearing, granted Coleman’s petition. The District Court, applying the test enunciated in Hunter v. Fogg, supra, 616 F.2d 58, concluded, first, that Coleman had harbored a mistaken belief as to the actual sentencing possibilities, and second, that he would not have entered into the plea agreement had he been properly apprised of the mandatory minimum sentence. The conclusion reached by the District Court in Coleman is in all respects consistent with the determination we reach today; the outcome differs only because the defendant, in contrast to Coleman, has failed to show either that he was materially misled as to the actual sentencing possibilities or that he would not have entered into the plea agreement had he been expressly informed of the mandatory minimum sentence.

Having failed to establish that his guilty plea was not entered voluntarily or intelligently, the defendant is unable to demonstrate a constitutional violation entitling him to relief under Golding. The defendant’s plain error claim must fail for the same reason. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Wright, supra, 207 Conn. 288-89. Because the defendant has made no showing that the entry of his guilty plea was the product of any impropriety, he cannot prevail under the plain error doctrine.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-111 provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       General Statutes § 53a-35a provides in relevant part: “Imprisonment for any felony committed on or after July 1, 1981: Definite sentences; terms authorized. For any felony committed on or after July 1, 1981,1he sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years . . . .”

       The defendant also raised several other claims on appeal to the Appellate Court, none of which is the subject of this appeal.

       We granted the defendant’s petition for certification limited to the following question: “Whether the Appellate Court was correct in concluding that the defendant’s plea to arson in the first degree was entered knowingly, intelligently and voluntarily when he was not informed of the mandatory minimum sentence?” State v. Domian, 231 Conn. 941, 653 A.2d 824 (1994).

       General Statutes § 53a-113 provides in relevant part: “Arson in the third degree: Class C felony, (a) A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.”

       General Statutes (Rev. to 1991) § 53a-157, now codified at § 53a-157b, provides in relevant part: “False statement: Class A misdemeanor, (a) A person is guilty of false statement when he intentionally makes afalse written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.”

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

       General Statutes § 53a-103 provides in relevant part: “Burglary in the third degree: Class D felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-123 provides in relevant part: “Larceny in the second degree: Class C felony, (a) A person is guilty ol' larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds five thousand dollars . . .

       The exchange between the trial court and the defendant proceeded in relevant part as follows:
      “The Court: Now as I understand it the state’s going to be recommending substantial incarceration for you. I’ve indicated to your lawyer and to the state that I’d be imposing a sentence of ten years. Do you understand that, sir?
      “The Defendant: Yes, sir.
      “The Court: Now, your lawyer will have the right to argue for less than that, but I’ve told him not to be optimistic; it would take a miracle for me to give you less than ten years. You understand that, sir?
      “The Defendant: Yes, I do, sir.
      “The Court: Once I accept your plea today you’ll come back for sentencing .... On June 18 you’ll be here for sentencing. You can’t withdraw your plea except with my permission. And the only way that would happen would be if I were to impose more than ten years. You understand that?
      “The Defendant: Yes, I do sir.
      “The Court: If I gave you ten years you’re locked in, you can’t take your plea back. You understand that?
      “The Defendant: Yes, I do, sir.”

       Practice Book § 4185 provides in relevant pari,: “Errors Considered
      “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .

       The defendant contends that the trial court’s failure to inform him of the mandatory minimum sentence violated his right to due process under both the Connecticut and United States constitutions. He did not, however, raise a state constitutional claim in the Appellate Court. Moreover, he does not claim that he is entitled to any greater due process protection under the state constitution than he is under the federal constitution. For purposes of this appeal, therefore, we assume, without deciding, that the defendant’s right to be fully informed of the circumstances bearing on his decision to plead guilty is the same under the state and federal constitutions.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      Practice Book § 712 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel.”

       We note that, with the exception of State v. Dennis, supra, 30 Conn. App. 416, each of these cases was decided in the context of a claim for habeas corpus relief. We see no reason, however, to apply a different test in this direct appeal.

       Because the trial court record does not affirmatively establish that the defendant was aware of the mandatory minimum sentence, we assume, for purposes of this appeal, that he was not.

       Although we have previously rejected due process challenges to the validity of a guilty plea when the trial court has failed to apprise the defendant of the mandatory minimum sentence; see State v. Collins, 207 Conn. 590, 596-97, 542 A.2d 1131 (1988); State v. Wright, supra, 207 Conn. 285-89; we did not apply the test that we adopt today.

       At the sentencing hearing, the defendant implored the court to suspend a portion of the sentence due to his troubled personal history, which he established through the testimony of friends and relatives. The trial court was not unmoved by the testimony, stating as follows: “I’d like to be lenient to you, based upon your prior history, your background, or your lack of prior criminal history and your background involving the atrocities you saw in Poland, the abusive behavior of your father to you.” Ultimately, however, the court decided not to suspend the ten year term of imprisonment, concluding that the defendant had “[held] the key to ... a more lenient sentence” but, “instead of using that key,” the defendant had failed to cooperate meaningfully with the authorities upon his arrest.

       The defendant could have received prison terms on the arson, larceny and burglary charges of up to twenty-five, ten and five years, respectively. In addition, the state, as part of the plea agreement, entered a nolle prosequi of the other charges that were pending against the defendant.

       The unreported decision of the United States District Court was affirmed by the Second Circuit Court of Appeals. Coleman v. Commissioner of Correction, 969 F.2d 1041 (2d Cir. 1992).

       We do not, of course, foreclose the defendant from bringing a habeas corpus action in which he may seek to establish that he would not have entered his guilty plea had he been apprised of the mandatory minimum sentence. Although we are extremely dubious that the defendant could prevail in any such action for the reasons already enumerated, our review of his claim on direct appeal is necessarily limited to the record, which, for example, contains no explanation by the defendant as to how he was prejudiced by the trial court’s technical noncompliance with Practice Book § 711 (2).