source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDWARD ANDREWS
    (SC 16126)
    McDonald, C. J., and Norcott, Katz, Palmer and Sullivan, Js.
    Argued March 16
    officially released June 20, 2000

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Edward Andrews, pleaded guilty to murder in violation of General Statutes § 53a-54a (a) in connection with a homicide that he allegedly committed on July 28, 1994. The Appellate Court affirmed the judgment of guilty rendered by the trial court, which had denied the defendant’s motion to withdraw his plea, and this court granted his petition for certification to appeal limited to the following issue: “Whether the Appellate Court properly concluded that the defendant knowingly had entered a guilty plea to murder where the trial court failed to inform him, pursuant to General Statutes § 54-125a (b) (l), that he would be statutorily ineligible for parole as a consequence of pleading guilty.” State v. Andrews, 249 Com. 922, 733 A.2d 234 (1999). The defendant claims that statutory ineligibility for parole is a direct consequence of a guilty plea, and, therefore, that the trial court was required to inform him of that fact during the plea canvass in order for his waiver of his constitutional rights, which is implicit in a guilty plea, to be knowing and voluntary. The state argues that statutory ineligibility for parole is a consequence collateral to a guilty plea, and, therefore, that the trial court had no such duty. We agree with the state and, accordingly, affirm the judgment of the Appellate Court.

The facts and procedural history of this case as set forth in the opinion of the Appellate Court are as follows: “Originally, the defendant pleaded not guilty to the murder charge and to two additional charges involving his possession and use of a firearm. After a jury had been selected, the trial began on September 4,1996. The trial court denied the defendant’s motion to suppress the testimony of an eyewitness who identified the defendant as the person who had shot the victim.

“On the following day, the defendant agreed to plead guilty to the murder charge and the state agreed not to prosecute the other two charges. Before accepting the guilty plea, the trial court canvassed the defendant in accordance with the requirements of Practice Book §§ 711 through 713, now §§ 39-19 through 39-21. The defendant’s responses to the court’s inquiries disclosed that he was thirty years of age and a high school graduate who had attended college for one year. He had discussed the murder charge and the evidence against him with his attorney and was satisfied with his attorney’s services. He was not mder the influence of alcohol, drugs or any medication and he mderstood that murder was a class A felony that carried a maximum sentence of sixty years and a minimum sentence of twenty-five years with a maximum fine of $20,000. During the canvass, the defendant said that he realized he was waiving various constitutional rights related to a criminal trial by pleading guilty, but, nevertheless, was pleading guilty voluntarily without any force or threats by other persons.

“The court informed the defendant that, after discussing the case with the prosecutor and defense counsel, it was prepared to impose a sentence of thirty-three years for the crime that the defendant had committed. The court asked the defendant whether he wanted to plead guilty to murder when the sentence indicated was thirty-three years. The defendant answered yes. The court then proceeded to accept the guilty plea.

“On December 3, 1996, before the sentencing proceeding, the defendant filed a written motion to withdraw his guilty plea, alleging that the plea was made unknowingly and involuntarily. Previously, in a brief letter received by the clerk’s office on October 18,1996, the defendant had claimed that the trial court did not canvass him properly on an unspecified critical element of his case.

“On January 9,1997, there was an evidentiary hearing on the motion to withdraw the guilty plea. The only witness presented was the defendant, who testified that he did not understand the consequences of his plea when the trial court questioned him during the plea acceptance proceeding. He claimed that he was then under the impression that he would have to serve only eight to fifteen years of his thirty-three year sentence. He also testified that his plea was not voluntary because his trial attorney had pressured him into pleading guilty. After Ustening to the arguments of the state’s attorney and the defendant’s new counsel, the court reviewed the transcript of the plea canvass and denied the motion to withdraw the defendant’s guilty plea. The court then sentenced the defendant to thirty-three years imprisonment as agreed at the time that his guilty plea was accepted.

“On appeal [to the Appellate Court and in the certified appeal to this court], the defendant claims that the trial court should have permitted him to withdraw his plea in accordance with Practice Book § 721 (2) because of his mistaken belief that the thirty-three year sentence would result in only eight to fifteen years of actual imprisonment. He maintains that the court should have informed him that he would not be eligible for parole because § 54-125a (b) (1) provides that persons convicted of murder as defined in § 53a-54a are ineligible for parole.” State v. Andrews, 53 Conn. App. 90, 91-94, 729 A.2d 232 (1999). The Appellate Court concluded that the trial court has no duty to advise a defendant of his statutory parole ineligibility during a plea canvass and, accordingly, affirmed the judgment of the trial court. Id., 97-98. We agree.

We first address the law governing guilty pleas. “It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Godek, [182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981)]; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Marra, supra, 345; State v. Battle, supra, 473. In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. McCarthy v. United States, supra, 466. These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, supra, 243-44. We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily. [Id.], 242; State v. Godek, supra, 356; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).” State v. Childree, 189 Conn. 114, 119-20, 454 A.2d 1274 (1983).

“[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” (Internal quotation marks omitted.) Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

“The Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20].” State v. Collins, 207 Conn. 590, 596, 542 A.2d 1131 (1988). Those rules provide that the trial court must not accept a guilty plea without first addressing the defendant personally in open court and determining that the defendant fully understands the items enumerated in § 39-19, and that the plea is made voluntarily pursuant to § 39-20. “There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987). “Although a defendant must be aware of the direct consequences of a plea, the scope of ‘direct consequences’ is very narrow. J. Bond, Plea Bargaining and the Guilty Plea (2d Ed.) § 3.38. In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19 (4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39-19 (4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-19 (3)]; cf. J. Bond, supra [§ 3.38], The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” State v. Gilnite, supra, 383 n.17.

“Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. ‘[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion.’ Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974). ‘The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.’ State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975).” State v. Crenshaw, 210 Conn. 304, 308-309, 554 A.2d 1074 (1989).

The defendant, relying on Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S. Ct. 362, 38 L. Ed. 2d 241 (1973), in which the United States Court of Appeals for the Fourth Circuit characterized direct consequences as having a “definite, immediate and largely automatic effect on the range of the defendant’s punishment”; id., 1366; claims that statutory parole ineligibility is a direct consequence of a guilty plea, and that the trial court was therefore obligated to advise him at the plea canvass that he would be ineligible for parole. The defendant further argues that this court should apply a Cuthrell-type analysis instead of applying State v. Gilnite, supra, 202 Conn. 369, in which this court determined that the only direct consequences of a guilty plea are those enumerated in Practice Book § 39-19. Id., 383 n.17.

In support of his argument, the defendant claims that Connecticut courts have applied a Cuthrell-type standard in a number of post-Gilnite cases. Specifically, the defendant cites State v. Smith, 207 Conn. 152, 160-61, 540 A.2d 679 (1988) (discussing whether removal of revocation of probation from defendant’s criminal record is direct or collateral consequence for purposes of determining mootness of appeal); Johnson v. Commissioner of Correction, 36 Conn. App. 695, 707, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995) (recognizing that “ ‘[d]irect consequences have' definite, immediate and largely automatic effects’ ” on range of punishment, and holding that sentence credits do not meet criteria); Falby v. Commissioner of Correction, 32 Conn. App. 438, 444-45, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993) (recognizing that “[d]irect consequences have definite, immediate and largely automatic effects” on range of punishment, and holding that misinformation regarding form of parole hearing does not meet criteria); and Sherbo v. Manson, 21 Conn. App. 172, 182 n.7, 572 A.2d 378, cert. denied, 215 Conn. 808, 809, 576 A.2d 539, 540 (1990) (applying Cuthrell test, and holding that procedure for commitment to Whiting Forensic Institute does not meet criteria). Those cases, however, do not support the defendant’s argument that Connecticut courts have used a Cuthrell-type analysis to expand the universe of direct consequences of a guilty plea beyond those enumerated in Practice Book § 39-19. Although the cases discuss the distinction between direct and collateral consequences, rather than directly applying a strict Gilnite analysis, none of them holds that there are direct consequences to a guilty plea other than those enumerated in § 39-19. Indeed, in Falby v. Commissioner of Correction, supra, 445, the Appellate Court, citing Sherbo v. Manson, supra, 181, recognized that “Practice Book § [39-19] defines the direct consequences” for purposes of determining the validity of a guilty plea. (Emphasis added.)

We conclude that Gilnite is not inconsistent with a Cuthrell-type analysis. Rather, Gilnite stands for the proposition that Practice Book § 39-19 defines the scope of the Boykin constitutional mandate that a defendant be advised of all direct consequences of his plea, while the Cuthrell standard simply enumerates several characteristics of those direct consequences. Thus, contrary to the defendant’s claim, our case law clearly and consistently has limited the direct consequences of a guilty plea to those consequences enumerated in Practice Book § 39-19.

The defendant argues, however, that, even if we have not held previously that there are direct consequences beyond those enumerated in Practice Book § 39-19, our case law implicitly requires statutory parole ineligibility to be treated as a direct consequence of a guilty plea. Specifically, the defendant relies on State v. Collins, 176 Conn. 7, 404 A.2d 871 (1978) (Collins I), and State v. Collins, supra, 207 Conn. 590 (Collins II). In Collins I, the defendant was not informed until his sentencing that the sentence for the offenses to which he pleaded guilty would ran consecutively to other sentences that he was serving. When the defendant learned that the sentences would be consecutive, he attempted to withdraw his plea. The trial court refused to allow the withdrawal. This court found that “the length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” Id., 9-10. Because the defendant could not have known that the sentences were to run consecutively, we found that the plea had not been made intelligently. Therefore, we held that trial court’s refusal to allow withdrawal of the plea was a denial of due process. Id., 10.

The defendant argues that, under Collins I, the trial court is required to inform the defendant of any consequences of a guilty plea that affect the time he will have to spend in prison. We disagree. We conclude, rather, that Collins I simply discusses the need for a plea to be knowing and voluntary, which is the rationale underlying the requirement of Practice Book § 39-19 (4) that the court ensure that the defendant understands “the maximum sentence possible from consecutive senten ces and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction . . . .” (Emphasis added.) Therefore, Collins I does not stand for the proposition that the trial court must advise the defendant of any consequence to a plea that may increase the actual time he will spend in prison.

In Collins II, supra, 207 Conn. 590, the defendant claimed that his attorney incorrectly had informed him about the period of actual incarceration that would result from the maximum sentence imposed on him. Id., 598. This court held that the claim raised “legitimate concerns that the defendant did not fully understand the consequences of his guilty pleas”; id., 598-99; and we remanded the case for a factual hearing on the issue of whether the defendant would have entered the guilty pleas had he been accurately informed. Id., 599. We conclude that there is a material difference between a defendant’s being misinformed, as was the case in Collins II, and his making unfounded assumptions, as the defendant did in this case. “The requirement that a plea be intelligently and voluntarily made does not impose upon the trial judge a duty to discover and dispel any unexpressed misapprehensions that may be harbored by a defendant.” (Internal quotation marks omitted.) Armstrong v. Egeler, 563 F.2d 796, 800 (6th Cir. 1977). Accordingly, we conclude that neither Collins I nor Collins II supports the defendant’s claim that the trial court has a duty to advise a defendant that his conviction will make him ineligible for parole.

The defendant also argues that, in this case, the Appellate Court should not have relied on federal precedent holding that parole eligibility is not a direct consequence of a guilty plea. See State v. Andrews, supra, 53 Conn. App. 95, citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (recognizing that United States Supreme Court has never held that federal constitution requires state to furnish defendant with information about parole eligibility); United States v. Posner, 865 F.2d 654, 660 (5th Cir. 1989) (trial court need not advise defendant that he was ineligible for parole); Hunter v. Fogg, 616 F.2d 55, 61 (2d Cir. 1980) (federal constitution does not require state court to inform defendant of minimum portion of sentence he may be required to serve); Armstrong v. Egeler, supra, 563 F.2d 801 (federal constitution does not require state court to advise defendant that he will be ineligible for parole). The defendant argues that the rulings in Armstrong and Posner fail to recognize that statutory ineligibility for parole should not be treated the same way as parole eligibility for Boykin purposes, because the rationale for characterizing parole eligibility as a collateral consequence is that parole decisions are within the discretion of the parole board and are exceedingly complex. Therefore, it would be infeasible and undesirable for the trial court to attempt to advise a defendant of the rules governing parole decisions at a plea canvass. See Proposed Amendments to Criminal Rules, Advisory Committee Note, 52 F.R.D. 409, 422 (1971) (stating that “certain consequences of a plea of guilty, such as parole eligibility, may be so complicated that it is not feasible to expect a judge to clearly advise the defendant”). Because statutory parole ineligibility is nondiscretionary and automatic, the defendant argues, that rationale is inapplicable in this case. The defendant further argues that the majority of federal circuit courts of appeal that have considered the issue have ruled that statutory parole ineligibility is a direct consequence of a guilty plea, and he urges this court to follow those cases. See Bye v. United States, 435 F.2d 177, 179 (2d Cir. 1970), and cases cited therein. We are not persuaded.

In Bye v. United States, supra, 435 F.2d 177, the United States Court of Appeals for the Second Circuit held that, under rule 11 of the Federal Rules of Criminal Procedure, as amended effective July 1, 1966, the trial court must advise a defendant of his ineligibility for parole. The applicable version of rule 11 provided that the court shall not accept a guilty plea “ ‘without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.’ ” Bye v. United States, supra, 179. Rule 11 was amended in 1975 to clarify “that a defendant need be informed of only two sentencing consequences: ‘the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.’ ” Hunter v. Fogg, supra, 616 F.2d 60. The advisory committee notes to the proposed amendment specifically provide that the amended rule would not require the trial court to inform the defendant of either his eligibility or his ineligibility for parole. Proposed Amendments to Criminal Rules, Advisory Committee Note, supra, 52 F.R.D. 421-22; see also 3 A.B.A., Standards for Criminal Justice (2d Ed. 1980) c. 14, standard 14-1.4 (a) (ii) n.14, p.14-24 (“[presently, Fed. R. Crim. P. 11 (c) does not require that prior to entry of a guilty plea the defendant be advised that the sentence may make the defendant ineligible for parole”). Accordingly, the court in Hunter v. Fogg, supra, 61, held that, under the amended rule, the trial court was not required to advise the defendant of the minimum portion of the sentence that he actually would be required to serve.

We therefore agree with the Appellate Court that Hunter v. Fogg, supra, 616 F.2d 55, effectively overruled Bye; see State v. Andrews, supra, 53 Conn. App. 95 n.7; and conclude that the Bye line of cases relied on by the defendant was superseded by the 1975 amendment to rule 11. It is therefore clear that those cases were decided on the basis of the language of rule 11, not on the requirements of the constitution. See Hunter v. Fogg, supra, 60-61; Armstrong v. Egeler, supra, 563 F.2d 800 (recognizing that rule 11 may require trial court to advise defendant of parole ineligibility, but noting that federal rule does not apply to states). Therefore, those cases are of limited persuasive value in this case.

Moreover, a number of federal courts of appeal ruled that, even before the 1975 amendment, rule 11, and, by implication, the constitution, did not require the trial court to advise a defendant of parole ineligibility. See Trujillo v. United States, 377 F.2d 266 (5th Cir.), cert. denied, 389 U.S. 899, 88 S. Ct. 224, 19 L. Ed. 2d 221 (1967); Smith v. United States, 324 F.2d 436 (D.C. Cir. 1963). The reasoning of those courts was “that eligibility for parole is not a ‘consequence’ of a plea of guilty, but a matter of legislative grace. It is equally true that non-eligibility for parole is not a ‘consequence’ of a plea of guilty . . . rather, it is a consequence of the withholding of legislative grace.” Smith v. United States, supra, 441; see also Trujillo v. United States, supra, 269. This conclusion is consistent with our conclusion that, under both a Cuthrell-type analysis and under State v. Gilnite, supra, 202 Conn. 369, statutory parole ineligibility is not a direct consequence of a guilty plea.

Accordingly, we conclude that due process does not require a trial court to advise the defendant of his statutory parole ineligibility during a plea canvass. We recognize, as the defendant points out, that statutory parole ineligibility affects the amount of time that the defendant actually will spend in prison, and, unlike parole eligibility, is neither complex nor dependent on the discretion of the parole board. It does not follow, however, that statutory parole ineligibility is covered by the Boykin constitutional mandate. “[Nowhere] in Boykin does it appear that a precise knowledge of all of the penal ramifications [of a guilty plea] rises to the quality of a constitutional requirement.” Armstrong v. Egeler, supra, 563 F.2d 799.

The trial court advised the defendant at his plea canvass of the sentence that it intended to impose. The record does not indicate that either the trial court or the defendant’s attorney suggested to the defendant that he would be eligible for parole. Rather, the defendant simply assumed that he would be eligible. The trial court has no constitutional obligation to discover and dispel such unfounded assumptions. See id., 800. Our cases have not identified any direct consequences of a guilty plea beyond those identified in Practice Book § 39-19. Furthermore, we are persuaded by the federal cases holding that statutory parole ineligibility is not a direct consequence of a guilty plea, but is, rather, “a consequence of the withholding of legislative grace.” Smith v. United States, supra, 324 F.2d 441; see also Trujillo v. United States, supra, 377 F.2d 269. Accordingly, we conclude that the defendant’s guilty plea was voluntary and intelligent in a constitutional sense.

The defendant finally argues that, even if such advice is not constitutionally required, this court should invoke its supervisory authority to direct the trial courts to advise defendants of their statutory parole ineligibility. Because we are persuaded by the reasoning of the federal cases holding that trial courts need not advise defendants of their ineligibility for parole, we decline to engage in such an extraordinary exercise of our authority.

We conclude that neither constitutional due process nor Connecticut’s rules of criminal procedure requires a trial court to advise a defendant of his statutory parole ineligibility at a plea canvass.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 54-125a provides: “(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board of Parole for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society. At the discretion of the panel, and under the terms and conditions as may be prescribed by the panel including requiring the parolee to submit personal reports, the parolee shall be allowed to return to his home or to reside in a residential community center, or to go elsewhere. The parolee shall, while on parole, remain in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. Any parolee released on the condition that he reside in a residential community center may be required to contribute to the cost incidental to such residence. Each order of parole shall fix the limits of 1he parolee’s residence, which may be changed in the discretion of such panel. Within three weeks after the commitment of each person sentenced to more than one year, the state’s attorney for the judicial district shall send to the Board of Parole the record, if any, of such person.
      “(b) (1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: Capital felony, as defined in section 53a-54b, felony murder, as defined in section 53a-54c, arson murder, as defined in section 53a-54d, murder, as defined in section 53a-54a, or any offense committed with a firearm, as defined in section 53a-3, in or on, or within one thousand live hundred feet of, the real property comprising a public or private elementary or secondary school. (2) A person convicted of an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed. (3) No person convicted of any other offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court shall be eligible for parole under subsection (a) of this section until such person has served such mandatory minimum sentence or fifty per cent of the definite sentence imposed, whichever is greater.
      “(c) The Board of Parole shall, not later than July 1,1996, adopt regulations in accordance with chapter 54 to ensure that a person convicted of an offense described in subdivision (2) of subsection (b) of this section is not released on parole until such person has served eighty-five per cent of the definite sentence imposed by the court. Such regulations shall include guidelines and procedures for classifying a person as a violent offender that are not limited to a consideration of the elements of the offense or offenses for which such person was convicted.”
      Although, after the date of the crime in question, subsection (b) of § 54-125a was amended by Public Acts 1994, No.94-37, § 2, and Public Acts 1995, No. 95-255, § 1, neither of those amendments is relevant to this appeal. For convenience we refer throughout this opinion to the current version of § 54-125a.

       “The defendant testified: ‘Veil, it’s like in New York, thirty-three years— it would be like eight to fifteen years. And now I got the internal memo and they said I got to do like twenty-seven years flat.’ The record, briefs and transcript fail to disclose the basis for the defendant’s statement concerning the duration of imprisonment resulting from a thirty-three year sentence under New York law.” State v. Andrews, 53 Conn. App. 90, 93 n.3, 729 A.2d 232 (1999).

       “On appeal, the defendant has not briefed this claim of being pressured by his trial attorney to plead guilty. Accordingly, we must treat that claim in this appeal as abandoned. Mather v. Griffin Hospital, 207 Conn. 125, 129 n.2, 540 A.2d 666 (1988); State v. Cavallo, 200 Conn. 664, 666 n.3, 513 A.2d 646 (1986).” State v. Andrews, 53 Conn. App. 90, 93 n.4, 729 A.2d 232 (1999).

       “Practice Book § 721 (2), now § 39-27, provides in relevant part: ‘The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows ....
      “(2) The plea was involuntary, or it was entered without knowledge of the charge or without knowledge that sentence actually imposed could be imposed. . . State v. Andrews, 53 Conn. App. 90, 93 n.5, 729 A.2d 232 (1999).

       For convenience, we refer in this opinion to the current numbers of Practice Book sections, rather than those in use at the time in issue. Practice Book § 39-19 provides: “ — Acceptance of Plea; Advice to Defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she 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 or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 39-20 provides: “ — Ensuring That the Plea is Voluntary
      “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       Practice Book § 39-27 provides: “ — Grounds for Allowing Plea Withdrawal
      “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       We do not hold, as a matter of law, that there can never be direct, consequences to a guilty plea, i.e., consequences covered by the Boykin constitutional mandate, beyond those listed in Practice Book § 39-19. Rather, we conclude that neither this court nor the Appellate Court has identified any such consequences to date. We recognize, however, that the trial courts are free to give advice at a plea canvass beyond the items enumerated in Practice Book § 39-19; see Proposed Amendments to Criminal Rules, Advisory Committee Note, 52 F.R.D. 409, 421-22 (1971) (judge is free to inform defendant of collateral matter at plea canvass if he feels matter is likely to be of real significance); and that the legislature may require trial courts to give information beyond the information required by due process. See, e.g., General Statutes § 54-lj (requiring trial courts to advise defendants of certain immigration consequences of guilty plea).

       We note that the applicable Practice Book section at the time that the defendant in Collins I entered his plea was identical to the current Practice Book § 39-19. See Practice Book (1976) § 2122 (4).

       Indeed, this court previously has indicated that there is no such categorical requirement. In Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990), we held that the trial court has no duty under Boykin to inform a defendant at a plea canvass that he will be ineligible for sentence modification or intensive probation.


author: PER CURIAM.

text:
    DOROTHY WOOD v. LAILA AMER ET AL.
    (SC 16199)
    Borden, Norcott, Katz, Sullivan and Vertefeuille, Js.
    Argued May 25
    officially released July 4, 2000

      Frederic S. Ury, with whom, on the brief, was Deborah M. Garskof for the appellant (named defendant).

      Stanley A. Twardy, Jr., with whom, on the brief, were Deborah S. Gordon and Keith P. Carroll, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this certified appeal, the plaintiff, Dorothy Wood, appeals from the judgment of the Appellate Court reversing a judgment of the trial court. The trial court’s judgment denied the plaintiffs request for a permanent injunction prohibiting the named defendant, Laila Amer, from building a home on a lot located across the street from the plaintiffs property in Greenwich. The plaintiff had sought enforcement of certain restrictions contained in the named defendant’s chain of title. The trial court rendered judgment for the named defendant on the basis of the statute of limitations set forth in General Statutes § 52-575a.

The Appellate Court reversed the trial court’s judgment and remanded the case for consideration of the merits of the plaintiffs claim. Wood v. Amer, 54 Conn. App. 601, 609, 736 A.2d 162 (1999). We granted the named defendant’s petition for certification to appeal, limited to the following two issues: “Did the Appellate Court properly conclude that: (1) the ‘Brush deed’ contained two separate restrictive covenants, and that, therefore, the grantor intended that only one house was to be located on either lot 10 or lot 11; and (2) the statute of limitations contained in General Statutes § 52-575a had not expired with respect to the plaintiffs claim of a violation of a covenant not to build?” Wood v. Amer, 251 Conn. 908, 739 A.2d 265 (1999). This appeal followed.

Having reviewed the briefs, the record and the arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. In its thorough and thoughtful opinion, the Appellate Court properly considered the issues on which we granted certification. See Wood v. Amer, supra, 54 Conn. App. 601.

The judgment of the Appellate Court is affirmed.

       General Statutes § 52-575a provides: “Action to enforce recorded private restrictions or notations on maps. No action or any other type of court proceeding shall be brought to enforce a private restriction recorded in the land records of the municipality in which the property is located or a notation on a filed map pertaining to the use of privately owned land, the type of structures that may be erected thereon or the location of same unless such action or proceeding shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation. This section shall be deemed not to apply to any private restriction or notation pertaining to (a) any public utility easement; (b) any right-of-way; (c) any park or open space land; (d) any private driveway, roadway or street, or (e) any sewer line or water line.”


text:
    MICHELLE ESKIN v. DENNIS CASTIGLIA
    (SC 16203)
    McDonald, C. J., and Noreott, Palmer, Sullivan and Vertefeuille, Js.
    Argued March 15
    officially released July 4, 2000

      James V. Somers, with whom, on the brief, was Jodie R. Small, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, were Barbara L. Cox and Mark Goodman, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The dispositive issue in this appeal is whether, pursuant to General Statutes § 52-102b, an apportionment complaint seeking to add a person who may be liable to the plaintiff under General Statutes § 52-572h, may be filed against an unidentified person. The plaintiff, Michelle Eskin, brought a negligence action against the defendant, Dennis Castiglia, to recover for injuries sustained in an automobile accident. The defendant appeals from the trial court’s judgment in favor of the plaintiff on the defendant’s apportionment complaint against an unidentified operator of a motor vehicle. The defendant alleges that this unidentified operator’s negligent conduct was a substantial factor in causing the plaintiffs personal injuries. We conclude that an apportionment complaint may not be filed against an unidentified person. Accordingly, we affirm the trial court’s judgment.

The record reveals the following relevant facts and procedural history. This case arises from a March 9, 1994 motor vehicle accident on the Boston Post Road (Post Road) in Fairfield. The plaintiff was a passenger in a motor vehicle operated by Kimberly Rumsey-Hill that was traveling westbound on the Post Road. The defendant was operating his motor vehicle on the eastbound side of the Post Road and desired to make a left turn, across the westbound side of the road and into a parking lot. The defendant alleges that, at the same time and place, another person, who was driving a Jeep Cherokee, but whose identity remains unknown to the parties, was attempting to make a left turn from the westbound side of the Post Road, across the eastbound side. The defendant further alleges that this unidentified driver waved to the defendant, indicating that he could go ahead and make his left turn. The defendant alleges that, in response, he began to turn. While attempting to complete his left turn, the defendant’s vehicle collided with the vehicle in which the plaintiff was a passenger.

On February 28, 1996, the plaintiff filed a one count complaint against the defendant, alleging that the defendant’s negligence in the operation of his motor vehicle was the proximate cause of various “injuries and damages” that she had suffered. Thereafter, the defendant served Rumsey-Hill with an apportionment complaint, claiming therein that her negligence was the proximate cause of the collision. The defendant then filed with the trial court a “motion for instructions regarding service of process under General Statutes § 52-68” on the unidentified driver. The unopposed motion for instructions claimed that the defendant intended to serve “Jane Doe,” the unidentified driver, with an apportionment complaint that the defendant attached to his motion. In response, the trial court, Karazin, J., in an order signed by the judge’s assistant clerk, “grant[ed] permission to serve [the unidentified driver] with process by publication in the Connecticut Post two times on or before [July 31, 1996],”

Subsequently, the plaintiff filed a motion to strike the defendant’s apportionment complaint against the unknown driver on the ground that naming an “unknown, fictitious person” as an apportionment defendant violated § 52-102b. The trial court, Nadeau, J., granted the plaintiffs motion to strike. Thereafter, the trial court, Rush, J., rendered judgment in favor of the plaintiff on the apportionment complaint filed against the unknown driver. The defendant appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The plaintiff argues that § 52-102b, the statute governing apportionment procedure in negligence actions, does not authorize the filing of an apportionment complaint against an unidentified person. The defendant argues that Connecticut law allows the filing of such a complaint. We agree with the plaintiff.

“The standard of review of a trial court’s granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary. . . . In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212-13, 746 A.2d 730 (2000).

The issue presented by this appeal requires us to construe § 52-102b. “According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Coelho v. ITT Hartford, 251 Conn. 106, 110, 752 A.2d 1063 (1999).

We begin our analysis with the text of § 52-102b. General Statutes § 52-102b (a) provides in relevant part: “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all puiposes under section 52-572h.”

Thus, by its plain language, § 52-102b (a) requires the serving of a writ, summons and complaint upon a person with whom a defendant wishes to apportion liability. The text of § 52-102b also provides that that section “shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.” General Statutes § 52-102b (f). We conclude that, because (1) there is no provision within § 52-102b for service on an unidentified person via publication or by any other means, (2) an unidentified person cannot be served with a writ, summons or a complaint, and (3) the statute provides that it is the “exclusive means”; General Statutes § 52-102b (f); of adding to a case an apportionment defendant who may be liable to the plaintiff pursuant to § 52-572h, the text of § 52-102b implies that the legislature intended to exclude unidentified persons from the universe of persons or entities subject to being named as an apportionment defendant.

The legislative history of Substitute Senate Bill No. 1012, the bill eventually enacted as Public Acts 1995, No. 95-111, § 1, and codified at § 52-102b, supports this interpretation of the legislature’s intent. That support is found in the following colloquy between Representatives Dale W. Radcliffe and Michael P. Lawlor: “[Representative Radcliffe]: . . . My understanding is that the bill uses the word ‘parties’ and the word ‘party’ is used for purposes of apportionment. Is it the proponent’s understanding that ‘party’ means party to the lawsuit and not anyone anywhere in the world who might possibly be said to have been in some way responsible? That’s the way I read it. I just want to make sure that the intent is good, that ‘party’ means party to the action, not anyone who is outside the lawsuit. Is that correct? . . .

“[Representative Lawlor]: . . . Yes. In fact, it would mean anyone who is actually a party to the lawsuit.” (Emphasis added.) 38 H.R. Proc., Pt. 9, 1995 Sess., p. 3272. The rejection of the idea of allowing a defendant to apportion liability upon “anyone anywhere in the world who might possibly be said to have been in some way responsible”; id.; supports our conclusion that the legislature intended to restrict the universe of potential apportionment defendants to identified persons.

This conclusion is further strengthened by considering the historical development of § 52-572h. That historical development illustrates the legislature’s increasingly restrictive view of the universe of persons from whom a defendant may seek to apportion damages. In Donner v. Kearse, 234 Conn. 660, 662 A.2d 1269 (1995), we reviewed that historical development and stated: “Partially in response to . . . concerns [over the system of joint and several liability], the legislature undertook to reform the tort recoveiy provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1, 1986. Section 3 of Tort Reform I provided that each defendant would initially be liable for only that percentage of his negligence that proximately caused the injury, in relation to one hundred percent, that is attributable to each person whose negligent actions were a proximate cause of the damages. ... In other words, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, whether or not that person was a party to the action. See G. Royster, [Joint and Several Liability and Collateral Sources Under the 1987 Tort Reform Act, 62 Conn. B.J. 257, 259 (1988)] (Tort Reform I had the plaintiffs negligence compared with everyone in the world who was at fault). Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party.

“Under Tort Reform I, to avoid the possibility that a jury would find that the negligence of a nonparty was aproxímate cause of [the plaintiff s] injuries, [the] plaintiff was required to name as defendants all persons whose actions suggested even the slightest hint of negligence. The unwanted practical effect, therefore, was that plaintiffs were required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts. General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213, 603 A.2d 385 (1992).

“The legislature amended these tort recovery provisions just one year later when it enacted No. 87-227 of the 1987 Public Acts (Tort Reform II), the pertinent provisions of which now are codified in part under § 52-572h. These revisions, which took effect October 1, 1987, altered the class of individuals to whom the jury could look in determining whose negligence had been a proximate cause of a plaintiffs injuries. In short, these revisions changed the focus of this class of negligent individuals from any person to any party and certain other identifiable persons. See General Statutes § 52-572h (c), (d), (f) [and] (n). Thus, while Tort Reform I provided that the jury, in determining the percentage of responsibility of a particular defendant, could also consider the entire universe of negligent persons, Tort Reform II limited this universe to only those individuals who were parties to the legal action or who were specifically identified in § 52-572h (n).

“Defendants who had been sued, however, were not left without a method to change the universe of negligence to be considered.” (Emphasis in original; internal quotation marks omitted.) Donner v. Kearse, supra, 234 Conn. 667-69. The legislature provided a “means by which a defendant may expand the universe of negligence to be considered in apportioning liability.” Id., 669 n.10.

“This . . . history of the development of § 52-572h is especially informative . ... It demonstrates that the legislature, in enacting Tort Reform II, intended to limit the universe of negligence to be considered to only particular, identifiable persons. If a defendant wished to broaden the universe of negligence to be considered in any given case, the legislature placed the burden upon him to implead that nonparty in accordance with [§ 52-102b].” (Emphasis added.) Id., 669-70.

Thus, our construction of § 52-102b is consistent with the legislative intent embodied in § 52-572h, which is “to limit the universe of negligence to be considered to only particular, identifiable persons.” (Emphasis added.) Id., 669. In contrast, the defendant’s construction of § 52-102b, which would permit apportionment actions against unidentified persons, directly contradicts the policies behind § 52-572h that we discussed in Dormer. “Where, as here, more than one [provision] is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflict between them.” (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., 246 Conn. 170, 179, 717 A.2d 195 (1998); see Shortt v. New Milford, Police Dept., 212 Conn. 294, 301, 562 A.2d 7 (1989) (“[i]n ascertaining [legislative] intent, we deem the legislature to have intended to harmonize its enactment with existing common law and statutory requirements”).

Furthermore, there is nothing in the legislative history of § 52-572h to indicate that the legislature intended to include unidentified persons among the class of persons against whom an apportionment complaint may be filed. On the contrary, throughout the legislative debate on § 52-572h, legislators continually discussed the concept of apportionment and its application to identified parties to a lawsuit. See, e.g., 30 H.R. Proc., Pt. 16, 1987 Sess., pp. 5711-13, remarks of Representative Sean C. Butterly; id., pp. 5706-10, remarks of Representatives Thomas S. Luby and Robert G. Jaekle; id., pp. 5690-97, remarks of Representative Jaekle.

Thus, based on the text and legislative history of § 52-102b, and the historical development and legislative history of § 52-572h, we conclude that the legislature intended that only identified persons may be included in an apportionment complaint. In this case, as the defendant acknowledges, the defendant’s apportionment complaint against “Jane Doe” names an unidentified person as an apportionment defendant. Therefore, we conclude that the trial court properly rendered judgment in favor of the plaintiff on the defendant’s apportionment complaint against “Jane Doe.”

In reaching this conclusion, we reject the defendant’s argument that the policy behind § 52-572h requires us to construe that statute and § 52-102b to allow the filing of apportionment complaints against unidentified tortfeasors. The defendant correctly notes “that a primary purpose of enacting [§ 52-572h] was to change the common law of joint and several Lability such that a defendant would be hable only for that proportion of the damages for which he was responsible.” Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 381, 699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640 (1997). We do not agree, however, that the policy behind proportional payment of damages requires us to ignore the statutory requirements of § 52-102b that govern the procedure for the filing of apportionment complaints. The defendant cites no cases that stand for such a proposition.

On the contrary, the two cases cited by the defendant in support of this argument both involve instances in which courts have held, as a matter of statutory interpretation, and in spite of the policy behind proportional payment of damages, that a defendant was not entitled to have a jury determine apportionment liability. Id., 381-82; see Bhinder v. Sun Co., 246 Conn. 223, 232, 717 A.2d 202 (1998). In Bhinder, we extended “§ 52-572h as a matter of common law to permit a negligent defendant to apportion liability to an intentional defendant.” Bhinder v. Sun Co., supra, 242. In so doing, we noted that “precluding the defendant from allocating fault is inconsistent with the principle of comparative negligence that a defendant should be liable only for that proportion of the damages for which he or she was responsible.” Id., 238.

Bhinder, however, does not support the defendant’s position in this case for two reasons. First, in Bhinder, this court unanimously agreed, as a matter of statutory interpretation, that § 52-572h did not permit the defendant to add a potential apportionment defendant who was an intentional tortfeasor. E.g., id., 230, 232. Thus, contrary to the defendant’s position, we recognized in Bhinder that, as a matter of statutory interpretation, the policy of proportional payment of damages is limited by the specific statutory provisions governing its application.

Second, in response to our decision in Bhinder, the legislature amended § 52-572h; see Public Acts 1999, No. 99-69, § 1 (P.A. 99-69); by prohibiting the apportionment of liability between allegedly negligent tortfeasors and intentional or reckless tortfeasors, among others. Although P.A. 99-69, § 1, did not purport to eliminate the policy behind apportionment, this amendment to § 52-572h suggests that the policy behind apportionment is limited by the specific statutory provisions governing its application.

The defendant also correctly notes that the Appellate Court referred to this policy in Baxter v. Cardiology Associates of New Haven, P.C., supra, 46 Conn. App. 381. In Baxter, the court concluded that the policy behind apportionment did not automatically require a jury to consider the apportionment liability of a party with which the plaintiff had settled and against which the plaintiff had withdrawn her claims because, “[a]s with any issue, the trial court must not submit the issue of the settled person’s negligence to the jury unless there is evidence to support it.” Id., 382. Despite referring to the policy of proportional payment of damages, the Appellate Court determined that, under the facts of that case, the defendant was not entitled to a jury determination of apportionment liability. See id., 381-84. We conclude that, although an important policy behind § 52-572h is that “a defendant ... be liable only for that proportion of the damages for which he was responsible”; id., 381; § 52-572h does not entitle a defendant to seek to apportion liability in instances in which the procedures outlined in § 52-102b are not followed.

Finally, we reject the defendant’s hyperbolic contention that such a “result is so unfair that it defies logic and equity.” On the contrary, on the equities of this case, we believe that to follow the defendant’s theory would be inequitable. The defendant’s theory would put the burden on the plaintiff to bring the unidentified defendant into this case in order to preserve her opportunity to collect all of the damages that she may be awarded. Thus, this is a case in which the equities and our statutory construction point to the same conclusion.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-102b provides: “Addition of person as defendant for apportionment of liability purposes, (a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.
      “(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.

        “(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously settled or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
      “(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
      “(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
      “(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.
      “(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”

       General Statutes § 52-572h provides in relevant part: “Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages. . . .
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (1) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact, necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”
      Public Acts 1999, No. 99-69, § 1, made a technical amendment to subsection (c) nol relevant to this appeal. For convenience, we refer to the current revision of § 52-572h throughout this opinion.

       Kimberly Rumsey-Hill is referred to in the record as "Kimberly Hill,” “Kimberly Rumsey” and “Kimberly Rumsey-Hill.” For purposes of clarity, we refer to her as Rumsey-Hill throughout this opinion.

       General Statutes § 52-68 provides: “Notice to nonresident adverse or interested parties and interested parties unknown to plaintiff, (a) The Superior Court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the Superior Court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the parly instituting the proceeding.
      “(b) Such notice, having been given and proved by the affidavit of the officer who served the notice or by other competent evidence, shall be deemed sufficient service and notice, and the court may proceed to a hearing, unless otherwise provided by law, or may order further notice as it deems reasonable.'’

       The notice that appeared in the Connecticut Post provided in relevant part: “Notice to Jane Doe. To the individual who, on March 9, 1994 at approximately 3:27 p.m., was operating a Jeep Cherokee traveling westbound on the Boston Post Road in Fairfield, Connecticut approaching the intersection of Ruane Street where a collision occurred between an Infinity Sedan and a Ford Taurus.
      “The original defendant in the case, Dennis Castiglia, has named you as an apportionment defendant in this action. In the original action, the plaintiff seeks money damages from the original defendant ... in a complaint returnable to the Stamford Superior Court on April 2, 1996.
      “During the pendency of that action the original defendant . . . served a writ, summons and complaint asking that you and one other apportionment defendant be added so that liability may be apportioned among the parties in accordance with [§] 52-572h . . . and with [Public Acts 1995, No. 95-111, § 1, now codified at § 52-102b].
      “Now, therefore, take notice that the writ, summons and complaint for apportionment has been filed in this case asking that damages be apportioned in accordance with [§] 52-572h . . . and that your portion of liability to the plaintiff be determined and that the plaintiffs damages award be reduced commensurate with your portion of that liability in accordance with law.
      “To respond to this apportionment complaint you must appear before the Superior Court for the Judicial District of Stamford/Norwalk at Stamford on or before the second day after the above referenced return date.
      “Said appearance need not be in person, but can be made by you or your attorney filing a written statement of appearance with the Clerk of the Court whose address is 123 Hoyt Street, Stamford, Connecticut. Failure to appear in this action may result in the entry of a default judgment against you. . .

       Section 52-572h specifies liability rules for negligence actions in which there axe multiple tortfeasors. See footnote 2 of this opinion.

       See footnote 2 of this opinion.

       Because we reject the defendant’s argument that § 52-102b authorizes the filing of an apportionment complaint against an unidentified person, the defendant’s argument that “Jane Doe” is a proper party to this action by virtue of her being served with process by publication of two legal notices in a newspaper pursuant to § 52-68 also fails. The “exclusive means”; General Statutes § 52-102b (f); of adding an alleged tortfeasor to a case for the apportionment of liability under § 52-572h require compliance with the provisions of § 52-102b. Because we concluded previously that an unidentified person may not be made an apportionment defendant pursuant to § 52-102b, no manner of service, including newspaper publication service made pursuant to § 52-68, is sufficient to bring such a person into a case.
      In his reply brief, the defendant also argues, for the first time, that the plaintiff waived her right to challenge the sufficiency of service of process on “Jane Doe.” “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998). Therefore, we decline to review the defendant’s claim.

       Although P.A. 99-69 was enacted in May, 1999, well after the motor vehicle accident that gave rise to this action and after the trial court rendered judgment for the plaintiff on the defendant’s apportionment complaint against the unknown driver, the legislature declared it “applicable to any civil action pending on or filed on or after August 11, 1998”; (emphasis added) Public Acts 1999, No. 99-69, § 2; the day that Bhinder was decided.


author: NORCOTT, J.

text:
    INTERLUDE, INC. v. KATHERINE A. SKURAT, TAX COLLECTOR OF THE CITY OF DANBURY, ET AL.
    (SC 16185)
    Borden, Norcott, Katz, Palmer and Sullivan, Js.
    Argued March 16
    officially released July 4, 2000

      Monte E. Frank, with whom, were Jonathan S. Bowman and, on the brief, Neil R. Marcus and David L. Grogins, for the appellant (plaintiff).

      Peter N. Buzaid, assistant corporation counsel, for the appellees (defendants).
   Opinion

NORCOTT, J.

The sole issue in this certified appeal is whether the one year statute of limitations provided by General Statutes § 12-119 applies to a claim for reimbursement of property taxes paid by a charitable organization pursuant to General Statutes § 12-81b and Danbury Code § 18-20. The plaintiff, Interlude, Inc. (Interlude), appeals from the judgment of the Appellate Court, which in turn affirmed the judgment of the trial court denying Interlude’s claim for a refund of taxes paid on certain real property owned by it. Interlude, Inc. v. Skurat, 54 Conn. App. 284, 285, 734 A.2d 1045 (1999). The Appellate Court affirmed the judgment of the trial court, Mihalakos, J., on the ground alleged by the defendant city of Danbury (city) that Interlude’s action was barred by the statute of limitations provision of § 12-119. Id., 287. We granted Interlude’s petition for certification to appeal limited to the following issue: “Whether the Appellate Court properly applied General Statutes § 12-119 to the present case?” Interlude, Inc. v. Skurat, 250 Conn. 927, 738 A.2d 657 (1999). Interlude claims that the Appellate Court improperly concluded that the one year statute of limitations applied to its claim for a refund pursuant to § 12-119. We agree. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court properly relied upon the following stipulated facts. “Interlude is a Connecticut nonprofit corporation that provides community based, integrated transitional housing, support and rehabilitation services to individuals who suffer from severe psychiatric disabilities. On September 24, 1992, Interlude took title to four properties located at 25, 27, 29 and 31 Grand Street in the city of Danbury, and recorded its deed on October 5,1992. Each of the four properties consists of three condominium units; all but four of the units are used by Interlude for its clients for charitable purposes.

“At the time of Interlude’s purchase of the property, the city exempted the property from taxation. The city notified Interlude of its exemption on July 2,1993. [Prior to Interlude’s purchase, however, the property had been assessed on October 1, 1991, as taxable. The owner of the property at that time, Junco, Inc., a corporation that is not tax exempt, had been billed pursuant to that assessment and had paid the installment that had come due on July 1,1992.] The city thereafter billed Interlude for the remaining three quarters of the 1991 grand list and for five days of the 1992 grand list, which the city claims became due and payable on October 1,1992, and January 1, April 1 and July 1,1993. Initially, Interlude did not pay these tax bills. On November 1,1994, however, the city noticed a tax hen on the property. On January 15, 1995, Interlude paid to the city, under protest, the amount of $21,495.40 in taxes, interest and lien fees as well as an additional $2832.88 in attorney’s fees to avoid a tax sale of the property. Interlude then demanded reimbursement of the moneys it had paid to the city under protest, which was denied by the city. Interlude thereafter filed [this] suit, seeking a declaratory judgment as to the meaning of a nonprofit organization’s exemption from taxation pursuant to General Statutes § 12-81b and Danbury Code § 18-20, and demanding reimbursement of all moneys it had paid to the city to avoid a tax sale. The [city] pleaded by way of a special defense that Interlude’s claims were untimely and were not permitted under General Statutes §§ 12-89,12-118 or 12-119. The trial court rendered judgment, granting Interlude a reimbursement ‘for any taxes it paid that accrued on or after [September 24, 1992, the date of its acquisition of the properties in question].’ The trial court did not, however, grant Interlude a reimbursement for any taxes it had paid that had accrued prior to its acquiring the property on September 24, 1992, which represents the bulk of taxes Interlude had paid under protest.” Interlude, Inc. v. Skurat, supra, 54 Conn. App. 285-86.

The Appellate Court did not address Interlude’s claim that the trial court improperly had interpreted § 12-81b and Danbury Code § 18-20 because the Appellate Court agreed with the city’s alternate ground for affirmance, namely, that Interlude’s action was barred by the statute of limitations provision of § 12-119. Id., 287. Because we disagree and conclude that § 12-119 is inapplicable to the present case, upon remand, the Appellate Court will have the opportunity to consider the merits of Interlude’s appeal.

“The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and Practice Book § [17-55], is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties. . . . [I]n analyzing whether a declaratory judgment action is barred by a particular statutory period of limitations, a court must examine the underlying claim or right on which the declaratory action is based. ... It necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratory judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action.” (Citations omitted; internal quotation marks omitted.) Wilson v. Kelley, 224 Conn. 110, 115-16, 617 A.2d 433 (1992). The Appellate Court, therefore, properly considered whether a statute of limitations barred Interlude’s action. We disagree, however, with the Appellate Court’s resolution of this issue and conclude that the statute of limitations provided by § 12-119 does not apply to Interlude’s claim.

“Assessment is the listing and valuation of property liable to taxation according to law.” (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 596, 489 A.2d 1034 (1985). When a taxpayer is aggrieved by the assessment of his property, there are statutory procedures in place for the taxpayer to challenge the assessment. “[T]he legislature has established two primary methods by which taxpayers may challenge a town’s assessment or revaluation of their property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes § 12-111, to the town’s board of tax review. The taxpayer may then appeal, pursuant to General Statutes § 12-118, an adverse decision of the town’s board of tax review to the Superior Court. The second method of challenging an assessment or revaluation is by way of § 12-119. . . . [Section] 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property .... The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . ... E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959). ... The second category consists of claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of statutes for determining the valuation of the property.” (Citations omitted; internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. 117-19.

Section 12-119 addresses two different types of cases: (1) “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set”; and (2) “a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and [must] have been arrived at ... by disregarding the [proper] . . . valuation of such property . . . .’’As Interlude has asserted, it is not challenging any assessment, in the sense of the valuation, of taxes, the remedy for which is provided by the second part of § 12-119. Instead, Interlude is challenging the city’s collection of taxes on property that subsequently became tax-exempt pursuant to § 12-81b and Danbury Code § 18-20. It is undisputed that on October 1, 1991, the date of the assessment, the property in question was taxable. Only after Interlude’s acquisition of the property on September 24, 1992, was the property considered tax-exempt pursuant to the charitable organization exemption. Although Interlude claims that it should not be held liable for the tax bill accrued from October 1, 1991, to September 23, 1992, it is not arguing that the property improperly had been assessed for that time period. Accordingly, § 12-119 is inapplicable.

With respect to the first prong of § 12-119, it is necessary to analyze the statute in the context of the entire range of municipal taxing statutes. See General Statutes §§ 12-89, 12-111, 12-118 and 12-119. These statutes make clear that the “assessment date” is the foundation of municipal taxing power. Thus, it is necessary to consider the date of assessment as the appropriate date, both for purposes of valuation of taxable property and for determining whether property is “taxable in the town” involved. General Statutes § 12-119. A municipality generates its annual tax bills, and therefore its tax revenues, based on the grand list as of the assessment date. Consequently, because Interlude did not own the property on the October 1, 1991 assessment date, its claim in this case is not governed by the first prong of § 12-119.

Furthermore, the application of § 12-119 to the facts of this case would achieve the bizarre result that Interlude would have had only six days in which to bring this cause of action before the statute of limitations expired on October 1, 1992. We decline to construe § 12-119 to this case because “[t]he law favors a rational statutory construction and we presume that the legislature intended a sensible result.” (Internal quotation marks omitted.) State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

The Appellate Court improperly read Interlude’s complaint as alleging that “[p]ursuant to General Statutes § 12-81 subdivision (7), the Properties have been and continue to be exempt from taxation, including real property taxes levied by the [city], by virtue of Interlude’s ownership and [charitable] use of the Properties ... [as invoking] § 12-119, that is, that the city had no authority to tax the subject property.” (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, supra, 54 Conn. App. 288. Read in its entirety, however, Interlude’s complaint clarifies that its claim for reimbursement involves only that which occurred after the date of its acquisition of the property on September 24,1992, not the assessment of the property on October 1,1991.

In this connection, we should note that § 12-119 has been applied to claims of nontaxability. See, e.g., Loomis Institute v. Windsor, 234 Com. 169, 661 A.2d 1001 (1995) (educational institution challenged denial of claimed tax exemption on certain real property); Common Fund v. Fairfield, 228 Conn. 375, 636 A.2d 795 (1994) (nonprofit corporation challenged tax assessment on property claimed as exempt); Faith Center, Inc. s. Hartford, 192 Com. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984) (religious organization claimed personal property was exempt from taxation and therefore wrongfully assessed); Crescent Beach Assn. v. East Lyme, 170 Com. 66, 363 A.2d 1045 (1976) (municipal corporation claimed property used for public purpose was tax exempt and therefore wrongfully assessed). These cases are distinguishable, however, because in all of them the nontaxable entity owned the property on the assessment date and, therefore, § 12-119 was the appropriate statute to invoke.

We are not considering the merits of Interlude’s case here, namely, whether Interlude is responsible for the taxes properly assessed on October 1, 1991, but not due and payable until after Interlude’s acquisition of the property on September 24, 1992. We merely determine that § 12-119 is inapplicable to the present case because there is no issue regarding the assessed value of the property, and because Interlude did not own the property on the assessment date. Accordingly, the one year statute of limitations provided by § 12-119 is not applicable here and, therefore, does not bar Interlude’s claim.

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

In this opinion the other justices concurred.

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       General Statutes § 12-81b provides: “Any municipality may, by ordinance, provide that the property tax exemption authorized by any of subdivisions (7) to (16), inclusive, of section 12-81 shall be effective as of the date of acquisition of the property to which the exemption applies and shall, in such ordinance, provide procedure for reimbursement of the tax-exempt organization for any tax paid by it for a period subsequent to said date and for any tax paid by the prior owner for a period subsequent to said date for which such organization reimbursed such owner on the transfer of title to such property.”

       Danbury Code § 18-20 provides: “The City of Danbury hereby adopts the provisions of Section 12-81b of the Connecticut General Statutes relating to the effective date of tax exemptions for certain organizations. Accordingly, the property tax exemption authorized by subsections (7) to (16), inclusive, of Sed ion 12-81 of the Connecticut General Statutes shall be effective as of the date of acquisition of the property to which the exemption applies. The tax-exempt organization shall be reimbursed for any tax paid by it for a period subsequent to the date of such acquisition and shall also be reimbursed for any tax paid by the prior owner for a period subsequent to the date of such acquisition for which such tax-exempt organization reimbursed the prior owner upon the transfer of title to such property. This section shall be effective for all applicable transfers occurring on or after October 1, 1986.”

       Although Katherine A. Skurat, the tax collector of the city of Danbury, was also a defendant in this case, we refer to both defendants as the city.

       It is undisputed that the property in question was assessed on October 1,1991, and that the bills for that assessment were due and payable in four installments on July 1 and October 1,1992, and January 1 and April 1, 1993. It is also undisputed that neither Junco, Inc., nor Interlude appealed from the October 1, 1991 assessment to the board of tax review.

       General Statutes § 12-89 provides: “The board of assessors of each town, consolidated town and city or consolidated town and borough shall inspect the statements filed with it and required by sections 12-81 and 12-87 from . . . charitable . . . organizations, shall determine what part, if any, of the property claimed to be exempt by the organization shall be in fact exempt and shall place a valuation upon all such property, if any, as is found to be taxable, provided any property acquired between assessment dates by any tax-exempt organization shall first become exempt on tax list next succeeding the date of acquisition. Any organization filing a tax-exempt statement, aggrieved at the action of the board of assessors, may appeal, within the time prescribed by law for such appeals, to the board of assessment appeals. Any such organization claiming to be aggrieved by the action of the board of assessment appeals may, within two months from the time of such action, make application in the nature of an appeal therefrom to the superior court for the judicial district of Hartford pursuant to section 12-391."

       General Statutes § 12-118 was repealed by Public Acts 1995, No. 95-283, § 67, effective July 6, 1995.

       General Statutes § 52-29 (a) provides: “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       Practice Book § 17-55 provides: “A declaratory judgment action may be maintained if all of the following conditions have been met:
      “(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations;
      “(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
      “(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

       General Statutes § 12-111 provides in relevant part: “Any person, including . . . any person to whom title to [real] property has been transferred since the assessment date, claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth. . . We note that this statute was referenced in the parties’ appellate briefs, but was not mentioned in the special defenses.

       The relevant paragraphs of Interlude’s amended complaint provide in pertinent part: “3. Prior to said acquisition, Junco [Inc.] paid all the real property taxes assessed by and owing to [the] defendant Katherine A Skurat, Tax Collector of the City of Danbury, and [the] defendant City of Danbury ... on the Properties up to and including the first quarterly installment of the list of October 1, 1991 assessment which was due and payable on or before July 1, 1992.
      “4. Since acquisition of the Properties Interlude has used and continues to use the Properties for carrying out its charitable purposes. . . .
      “6. Danbury Code § 18-20, enacted pursuant to and in accordance with General Statutes § 12-81b, provides that the property tax exemption authorized by, inter alia, General Statutes § 12-81, subdivision (7) shall be effective as of the date of acquisition of the property to which the exemption applies.
      “7. Pursuant to General Statutes § 12-81b and Danbury Code § 18-20, Interlude is exempt from paying any and all taxes on the Properties due and payable on or after said date of acquisition. ...” (Emphasis added.)

       We note that, although we conclude that § 12-119 does not apply to the present case, we are not deciding what statute of limitations — if any — is applicable. Instead, we leave that question to a case in which that issue is fully litigated.


text:
    STATE OF CONNECTICUT v. BARRY THOMAS
    (SC 16040)
    McDonald, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.
    Argued May 25
    officially released July 4, 2000

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

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

After a jury trial, the defendant, Barry Thomas, was found guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), and the trial court rendered judgment accordingly. The defendant appealed to the Appellate Court, and that court affirmed the judgment of conviction. State v. Thomas, 50 Conn. App. 369, 717 A.2d 828 (1998).

We granted certification to appeal, limited to the following issue: “Did the Appellate Court properly terminate its review of the defendant’s Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] claim after concluding that some of the state’s reasons for exercising its peremptory challenge against an African-American venireperson were legitimate?” State v. Thomas, 247 Conn. 935, 722 A.2d 1217 (1998). This certified appeal followed.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.

The appeal is dismissed.

       General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical ipjury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Specifically, the Appellate Court rejected the defendant’s claims that the trial court improperly had: (1) permitted the state to exercise a peremptory challenge to remove a venireperson; (2) failed to instruct the jury that disbelief of the defendant’s testimony was not affirmative proof of the opposite; and (3) instructed the jury on flight as evidence of consciousness of guilt. State v. Thomas, supra, 50 Conn. App. 370-71.