author: SULLIVAN, J. KATZ, J.,

text:
    STATE OF CONNECTICUT v. MAURICE S. MALCOLM
    (SC 16389)
    McDonald, C. J., and Norcott, Katz, Sullivan and Vertefeuille, Js.

      Argued January 9
    officially released August 21, 2001

      Robert M. Spector, deputy assistant state’s attorney, with whom were James R. Turcotte, supervisory assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellant (state).

      Michael Boyle, for the appellee (defendant).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c). The listing of justices reflects their seniority status on this court as of the time of oral argument.

   Opinion

SULLIVAN, J.

The issue in this appeal is whether the trial court improperly granted the defendant’s motion to withdraw his guilty plea, on the grounds that, in accepting the guilty plea, the trial court had failed to mention specifically all three immigration and naturalization consequences listed in General Statutes § 54-lj that could result from a guilty plea by a defendant who is not a United States citizen. We reverse the ruling of that court.

On or about December 11,1996, undercover Hamden police officers made arrangements to purchase three ounces of marijuana from someone named “Mo” for $375. A meeting was held at an arranged location, and the defendant, Maurice S. Malcolm, arrived with the marijuana and was arrested. The defendant appeared to be under the influence of marijuana at the time.

The defendant was charged with the sale of a controlled substance in violation of General Statutes § 21a-277 (b), possession of a controlled substance, less than four ounces of marijuana, in violation of General Statutes § 2 la-279 (c), and conspiracy to sell a controlled substance in violation of General Statutes §§ 53a-48 and 21a-277. On August 20, 1998, after coming to an agreement with the state, the defendant pleaded guilty to the sale of marijuana in violation of § 21a-277 (b). Although the defendant and the state had agreed on a sentence of five years imprisonment, execution suspended, with a two year period of probation, the trial court sentenced the defendant to three years imprisonment, execution suspended, and two years of probation.

On or around May 10, 1999, the Immigration and Naturalization Service took the defendant into custody and instituted deportation proceedings against him. The defendant was transferred to an Immigration and Naturalization Service detention facility in Oakdale, Louisiana. On May 20,1999, the defendant filed an emergency motion to vacate the judgment and withdr aw his guilty plea on the grounds that the trial court failed to comply with § 54-lj in accepting his guilty plea and that he was likely to be deported within two weeks. The trial court granted the motion on June 4, 1999. The state, on the granting of permission, appealed to the Appellate Court, and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal, the state claims that the trial court improperly found that the defendant’s guilty plea canvass did not comply with § 54-lj and, therefore, improperly vacated the defendant’s conviction. We agree with the state.

I

FINAL JUDGMENT

The state argues that the trial court’s vacating of the defendant’s conviction is an appealable final judgment under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We agree.

In Curdo, we held that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id. The state relies on the second prong of this test, which “focuses not on the proceeding involved, but on the potential harm to the appellant’s rights.” Id., 33. It points out that, in this case, the defendant pleaded guilty on August 20, 1998, in exchange for a sentence of three year's imprisonment, suspended after thirty days served, and two years probation. The defendant had already served the thirty days in lieu of posting bond at the time that the sentence was imposed. In reliance on the defendant’s representations at the plea canvass and on the existence of a final, partially executed judgment against the defendant, the state then destroyed the evidence against him.

We conclude that these circumstances distinguish this case from State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983). In that case we held that a judgment of dismissal of the charges, with prejudice, entered on the state’s own motion, was “a sufficiently serious precondition to the right of appeal to provide adequate assurance that this procedure will not be resorted to lightly”; id., 50-51; and allowed the appeal. In the present case, although the state has not dismissed the charges against the defendant as a precondition to the appeal, in reasonable reliance on the defendant’s representations that he had discussed the immigration consequences of his plea with his lawyers, it has destroyed the evidence against him, thereby significantly impairing its ability to retry him. “A presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Internal quotation marks omitted.) State v. Curcio, supra, 191 Conn. 33-34. Because the practical value of the state’s right to seek a judgment against the defendant will be destroyed if it is not allowed to appeal, we conclude that the trial court’s ruling vacating the conviction and allowing the defendant to withdraw the guilty plea was an appealable final judgment under the second prong of Curcio.

II

COMPLIANCE WITH GENERAL STATUTES § 54-lj

The defendant claims that the trial court did not comply with § 54-lj before accepting his plea. At the plea canvass, the trial court questioned the defendant as follows: “The law says that I have to tell you that if you’re not a citizen of the United States, conviction of this offense can result in your being deported, being denied admission to the United States or being denied readmission to the United States, have you discussed that with your lawyers too?” The defendant responded, “Yes.” The court then asked, “Is there anything you want to ask your lawyer right now? Take a minute if you do,” and the defendant responded, “No.” The defendant points out that § 54-lj provides that the defendant shall be warned about each of three potential consequences of a guilty plea: (1) deportation; (2) denial of admission to the United States; and (3) denial of naturalization. The defendant argues that the trial court’s instruction, which warned of only deportation and denial of admission, was improper. The state contends that the trial court’s advisement substantially complied with § 54-lj and was, therefore, proper. We agree with the state.

This court previously has not considered whether a trial court must strictly comply with § 54-lj. Other jurisdictions, however, have addressed the issue. In Daramy v. United States, 750 A.2d 52, 554 (D.C. 2000), the trial court instructed the defendant, who was not a citizen, that the “ ‘Immigration and Naturalization Service could review your status to decide whether to allow you to remain in the United States or to return to your home country. If you were required to depart, put it plainly, if you were deported, you could be barred from re-entry at some future date.’ ” As in the present case, the trial court in Daramy did not mention the denial of naturalization. The District of Columbia Court of Appeals looked to the legislative history of the District of Columbia statute and found the statute to be a legislative response to the apparent “reluctance of the courts to grant a motion to withdraw a guilty plea when the defendant had not been advised of potential consequences with respect to the prisoner’s immigration status.” Id., 555-56. The court found that the purpose of the statute was to put noncitizens on notice that a plea of guilty could result in immigration consequences. Id., 556. It concluded that, even though the trial court did not warn the defendant that he could be denied naturalization, he could have inferred such a consequence because he could not have been deported if he were naturalized. Id., 556-57. The court held that, while it would have been better for the trial court to have read the statute verbatim, the warning as given was acceptable. Id.; see also People v. Superior Court, 23 Cal. 4th 183, 194, 199, 999 P.2d 686, 96 Cal. Rptr. 2d 463 (2000) (where trial court did not specifically mention one potential consequence listed in statute, namely that defendant could be excluded from admission to United States, court held that, under state constitution, to vacate plea, defendant must show he was prejudiced by trial court’s noncompliance with statute); Delatorre v. State, 957 S.W.2d 145, 150-51 (Tex. App. 1997) (trial court’s instruction substantially complied with statute “because it included the most severe action which could have befallen the defendant,” namely deportation); Garcia v. State, 877 S.W.2d 809, 813 (Tex. App. 1994) (“trial court’s admonishment, ‘if you’re not a citizen or if you’re not legally in this country, that it could mean that you would have to be sent back to your original country,’ substantially complied” with Texas statute); State v. Garcia, 234 Wis. 2d 304, 310-11, 312, 610 N.W.2d 180 (App. 2000) (warning sufficient, despite the fact that it did not follow statute verbatim, because defendant confirmed that he understood risk of deportation, was instructed that his status would be uncertain and deportation prime consideration in plea negotiation). We agree with the reasoning of these cases and conclude that it was not necessary for the trial court to read the statute verbatim. We conclude, rather, that only substantial compliance with the statute is required to validate a defendant’s guilty plea.

Moreover, this court repeatedly has held that only substantial compliance is required when warning the defendant of the direct consequences of a guilty plea pursuant to Practice Book § 39-19 in order to ensure that the plea is voluntary pursuant to Practice Book § 39-20. See State v. Ocasio, 253 Conn. 375, 380, 751 A.2d 825 (2000) (“only substantial, rather than literal, compliance with § 39-20 is required in order to validate a defendant’s plea of guilty”); State v. Godek, 182 Conn. 353, 360, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981) (“constitutional rights of a criminal defendant in taking either a guilty or a nolo plea must be scrupulously protected . . . [however] the failure to comply with each and every requirement of [the statute] does not automatically require the vacating of the defendant’s plea” [citations omitted]). We will not require stricter compliance with regard to the collateral consequences of a guilty plea.

Furthermore, such a standard is consistent with the legislative intent behind § 54-lj. Although there is little legislative history regarding § 54-lj, comments made by Senator Howard T. Owens, Jr., to the Senate on April 14,1982, shed some light on the legislative intent behind the statute. After summarizing the text of the statute, Senator Owens indicated that “if the court fails to advise the defendant of the possible consequences of the conviction, [and] the defendant shows that his plea and conviction could result in deportation . . . [t]he court could, at a subsequent date, be required to vacate the judgment and permit the defendant to withdraw his plea and enter a plea of not guilty.” 25 S. Proc., Pt. 4, 1982 Sess., pp. 1263. Senator Owens added, “[a lot] of people are not aware of the consequences of these [Immigration and Naturalization Service rules] and face deportation and being able to do nothing about it.” Id. These remarks suggest that § 54-lj, rather than demanding that trial courts instruct defendants on the intricacies of immigration law, seeks only to put defendants on notice that their resident status could be implicated by the plea. Id.; see also Commonwealth v. Hason, 27 Mass. App. 840, 844-45, 545 N.E.2d 52 (1989).

By instructing the defendant that he could be deported or excluded from readmission to the United States, the trial court in the present case substantially complied with § 54-lj. The defendant was warned adequately that his immigration status could be implicated by his guilty plea.

Although it would have been better practice for the trial court to have read the statute verbatim, strict compliance was not necessary to put the defendant on notice that a conviction could have implications beyond the state criminal justice system. To allow the defendant now, years after the charges were brought, and after the evidence has been destroyed, to withdraw a plea into which he entered knowingly and voluntarily would be to assert form over substance. See Commonwealth v. Lopez, 426 Mass. 657, 662, 690 N.E.2d 809 (1998) (“strict standard for postconviction motions promotes judicial efficiency and finality by discouraging a defendant from entering a guilty plea to test the weight of potential punishment” [internal quotation marks omitted]); see also Commonwealth v. Hason, supra, 27 Mass. App. 845 (judges “should only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth” [internal quotation marks omitted]). The legislature did not intend to create a loophole for defendants to use as grounds for vacating guilty pleas, years after they have been entered, once evidence is destroyed or witnesses become unavailable. See State v. Evans, 290 Or. 707, 714, 625 P.2d 1300 (1981) (“what the defendant now seeks is to have the benefit of his plea bargain now that the other charges against him have been dismissed and to nevertheless challenge the validity of his conviction based upon a contention which was not brought to the attention of the trial court” [internal quotation marks omitted]); State v. Chavez, 175 Wis. 2d 366, 371, 498 N.W.2d 887 (App. 1993) (“[consistent with this legislative history, we conclude that the legislature did not intend a windfall to a defendant who was aware of the deportation consequences of his plea”).

We also note that the defendant is now threatened with deportation, a subject on which he was instructed, not denial of naturalization. He argues that, had he been able to be naturalized, he could have avoided deportation. This argument, however, simply underscores the interrelated nature of the three potential immigration consequences. Although deportation, exclusion and denial of naturalization are distinct from each other, they are sufficiently related, such that a warning about the first two puts a defendant on notice that the third could be implicated. See Daramy v. United States, supra, 750 A.2d 557 (where trial court omitted any specific reference to naturalization, court reasoned: “Only by denying the conferral of United States nationality upon Daramy through naturalization would the [Immigration and Naturalization Service] be in a position to return [the defendant] to [her native country]. As only aliens can be made to leave the United States, the plain import of the trial court’s statement is that the [Immigration and Naturalization Service] could choose not to naturalize [the defendant]. . . . Therefore, while the trial court did not quote the statute verbatim,” it did place the defendant on notice that she might be denied naturalization.). Because we are not persuaded that a verbatim reading of § 54-lj is required, we reverse the trial court’s granting of the defendant’s motion to vacate his guilty plea.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to vacate the judgment and withdraw his plea.

In this opinion, MCDONALD, C. J., and NORCOTT and VERTEFEUILLE, Js., concurred.

KATZ, J.,

dissenting. It is well settled that “[t]his court’s jurisdiction is limited by statute to appeals from final judgments; General Statutes §§ 51-197a, 52-263; and [that] accordingly we have no discretion to enlarge our jurisdiction in abrogation of the final judgment rul e.” State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983). This final judgment rule “serves the important public policy of discouraging the delays and inefficiencies attending piecemeal appeals. . . . That policy applies with particular force in criminal cases because, as both this court and the Supreme Court of the United States have recognized, undue litigiousness and leaden-footed administration of justice [are] particularly damaging to the conduct of criminal cases.” (Citations omitted; internal quotation marks omitted.) Id., 509.

The appealable final judgment in a criminal case is ordinarily the imposition of sentence. State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). General Statutes § 54-96 permits the state to appeal from rulings and decisions of the Superior Court upon questions of law arising in criminal trials, provided that the appeal is from a final judgment. We previously have recognized, however, in both criminal and civil cases, that certain otherwise interlocutory orders may constitute final judgments for puiposes of appeal. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that results in a dismissal of the appeal.” State v. Paolella, 210 Conn. 110, 119, 554 A.2d 702 (1989).

“The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause to which it is related so that the main action can ‘proceed independent of the ancillary proceeding.’ ” In re Juvenile Appeal (85-AB), 195 Conn. 303, 307, 488 A.2d 778 (1985). The state makes no claim in this case that the trial court order granting the defendant’s motion to withdraw his guilty plea terminated a separate arid distinct proceeding. Rather, the state seeks to fit this case within the second prong of the Curdo test, arguing that, if the defendant’s trial is permitted to proceed, the state will lose forever its right to challenge the trial court’s vacating of the defendant’s guilty plea. The state reasons that, if the defendant is convicted following a trial, the state’s claim that the trial court improperly allowed the defendant to withdraw his plea will be moot, while if he is acquitted, any appeal by the state would be fruitless because the double jeopardy clause would prohibit the reinstatement of the judgment of conviction.

At the outset, I agree with the state’s analysis of the double jeopardy issue. The decisions of the Supreme Court of the United States have reiterated often the principle that a “judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court’s error.” Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) (involving erroneous exclusion of evidence). Additionally, I recognize that, at first blush, the circumstances of this appeal appear to fit literally within the language of the second prong of the Curdo test, as the state contends. The issue as I see it, however, is whether the state may rely on the threat of double jeopardy to avoid the final judgment rule, without terminating the prosecution in order to appeal the trial court order. I would conclude that it cannot. “The intent of that constitutional prohibition is to shield criminal defendants from repeated prosecution; for that reason, the prohibition cannot in and of itself be utilized by the state as a sword to obtain review of interlocutory orders that would be unavailable to the defendant.” State v. Southard, supra, 191 Conn. 511-12.

In State v. Ross, 189 Conn. 42, 49-51, 454 A.2d 266 (1983), the state appealed from an allegedly improper suppression of crucial evidence. That appeal was predicated upon a judgment of dismissal of the charges, with prejudice, entered on the state’s own motion. Id., 45. Because the state’s appeal m Ross was thus conditioned on its willingness to stake the outcome of the prosecution on reversing the trial court’s order suppressing evidence, this court held that “[a] decision by the state to obtain dismissal of a prosecution with prejudice is a sufficiently serious precondition to the right of appeal to provide adequate assurance that this procedure will not be resorted to lightly.” Id., 50-51.

In State v. Southard, supra, 191 Conn. 512, this court dismissed the state’s appeal of the trial court’s order denying its demand for a jury trial because “the state ha[d] not satisfied the precondition set down by Ross.” The court concluded that, in the absence of any precedent supporting the state’s position that the denial of its claim for a juiy trial could have been reviewed by apretrial appeal without putting into jeopardy the possibility of securing a conviction at a court trial, the state was not entitled to review of its claim. Although the court in Ross recognized the seriousness of the state’s interest in the resolution of the jury trial issue, it emphasized that the final judgment rule, and consequently, this court’s jurisdiction, “has never turned upon the gravity of the claims that are denied interlocutory review.” Id., 512.

The state acknowledges that, because the drugs involved in this case have been destroyed, its ability to successfully prosecute the defendant at trial has been impaired significantly. Nevertheless, the state complains in its brief that it is not practical to “require the state to nolle the underlying charges and have the case dismissed” because, if the state were to prevail on appeal, “it would have to move the trial court to vacate the dismissal and the nolle, file a new information, and have the defendant enter his plea again. Allowing the state to appeal the trial court’s order vacating the defendant’s judgment of conviction would be a much more efficient and sensible procedure that would maintain the status quo pending resolution of the appeal.” As in Southard, the state’s claim in the present appeal bears no significant distinction from “any of the myriad evidentiary and procedural rulings which might possibly disadvantage the state during the course of a criminal proceeding, such as orders excluding evidence, requiring disclosure of information or granting changes of venue.” State v. Southard, supra, 191 Conn. 512. Consequently, the state’s claim here no more satisfies the second prong of Curdo than did the state’s claim in Southard. As this court stated in State v. Ross, supra, 189 Conn. 50-51, and reiterated in State v. Joyner, 255 Conn. 477, 486-87, 774 A.2d 927 (2001), the state’s willingness to have the charges dismissed provides the assurance that the appellate procedure has not been resorted to lightly.

The state also claims that General Statutes § 54-lj gives this court jurisdiction to consider this appeal. That statute vests jurisdiction in the trial court to revisit a plea canvass after a sentence has been imposed; see State v. Parra, 251 Conn. 617, 741 A.2d 902 (1999); it does not confer jurisdiction on this court to consider an interlocutory appeal.

As this court previously has stated, “unless the appeal is authorized under the Curdo criteria, absence of a final judgment is a jurisdictional defect that results in a dismissal of the appeal.” State v. Paolella, supra, 210 Conn. 119; see Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974). Therefore, I would dismiss the state’s appeal.

Accordingly, I respectfully dissent.

       General Statutes § 54-lj provides: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in (he United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       General Statutes § 53a-48 provides: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       The trial court stated, “I think five is too much for this, I think it should be three suspended. This is sale of [less than four ounces ofj marijuana.”

       Several of our sister states have statutes similar to § 54-lj. See Cal. Penal Code § 1016.5 (Deering 1998); D.C. Code Ann. § 16-713 (1997); Haw. Rev. Stat. c. 802E (1993); Mass. Gen. Laws c. 278, § 29D (Lawyers Coop. 1992); Mont. Code Ann. § 46-12-210 (1999); N.Y. Crim. Proc. Law § 220.50 (McKinney 1993); Ohio Rev. Code Ann. § 2943.031 (Baldwin 1997); Or. Rev. Stat. § 135.385 (1990); R.I. Gen. Laws § 12-12-22 (2000); Tex. Crim. Code Ann. §26.13 (Wes1 1989); Wash. Rev. Code Ann. § 10.40.200 (West 1990); Wis. Slat Ann. § 971.08 (West 1998).

       D.C. Code Ann. § 16-713 (1997) provides in relevant part: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime, the court shall administer the following advisement on the record to the defendant: ‘If you are not a citizen of the United States, you are advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.’
      “(b) ... If the court fails to advise the defendant as [so] required . . . and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from the United States, or denial of naturalization pursuant to the laws of the United St ates, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.

       Cal. Penal Code § 1016.5 (Deering 1998) provides in relevant part: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:
      “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. . . .
      “(b) If . . . the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. ...”

       Wis. Stat. Ann. § 971.08(1) (West 1998) provides in relevant part: “Before the court accepts a plea of guilty or no contest, it shall . . .
      “(c) Address ihc defendant personally and advise the defendant as follows: ‘If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.’ . . .” Section 971.08 (2) provides in relevant part that if the court, fails so to advise a defendant “and a defendant later shows that the plea is likely to result in the defendant’s deport ation, exclusion from admission to this country or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. . . .”

       Practice Book § 39-19 provides: “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: “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.”

       Although we do not mean to minimize the potential impact of the immigration and naturalization consequences of a plea, they are not of constitutional magnitude: “The statutory mandate . . . cannot transform this collateral consequence into a direct consequence of the plea. It can only recognize that this collateral consequence is of such importance that the defendant should be informed of its possibility.” State v. Baeza, 174 Wis. 2d 118, 125, 496 N.W.2d 233 (App. 1993); United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973) (“[d]eportation . . . serious sanction though it may be, is not such an absolute consequence of conviction that we are mandated to read into traditional notions of due process a requirement that a district judge must warn each defendant of the possibility of deportation before accepting his plea”); see also State v. Andrews, 253 Conn. 497, 504, 507-508 n.8, 752 A.2d 49 (2000).

       The defendant ultimately received a sentence even more lenient than that for which he had bargained. Although he had agreed to a five year suspended sentence, the trial court, sua sponte, reduced the sentence to a three year suspended sentence, an action the trial court later lamented when the defendant moved to withdraw his plea “after the great deal we gave him, which I resent heartily . . . .” Upon granting the defendant’s motion to withdraw his guilty plea, the trial court noted: “[I]t just puts the state in a terrible position. It’s totally unfair to them because we did destroy the evidence based on him saying he understood everything and talked to his lawyer about it.”

       General Statutes § 51-197a (a) provides: “Appeals from final judgments or actions of the Superior Court shall be taken to the Appellate Court in accordance with section 51-197c, except for small claims, which are not appealable, appeals within the jurisdiction of the Supreme Court as provided for in section 51-199, appeals as provided for in sections 8-8 and 8-9, and except as otherwise provided by statute.”
      General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       General Statute's § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to 1he Supreme Court or to the Appellate Court, in 1he same manner and to the same effect as if made by the accused.”

         Not, only is the gravity of the claim not controlling, but the obvious gain in judicial efficiency that could be realized whenever a full trial can be avoided also is not determinative; see State v. Spendolini, 189 Conn. 92, 97, 454 A.2d 720 (1983) (denial of accelerated rehabilitation not final judgment for appeal purposes; right, can be vindicated after trial); nor does the level of sacrifice that the party seeking review must make influence our jurisdiction. Indeed, General Statutes § 54-94a, for example, requires a defendant to plead nolo contendere to an offense in order to gain review of an adverse trial court decision on a motion to suppress, even when the evidence! in question is the only evidence linking the defendant to the crime.

       note that a remand in this case, had the state properly dismissed the charges prior to filing its appeal, would be less complicated than the state’s scenario threatens. If the state were to prevail on appeal, as it in fact does here, the trial court could be ordered, as part of this court’s remand, to vacate the dismissal and reinstate the guilty plea and the sentence.

       General Statutes § 54-lj provides: “Court instruction on possible immigration and naturalization ramifications of guilty or nolo contendere plea, (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: Tf you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in the United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”


source: Caselaw Access Project

author: VERTEFEUILLE, J. KATZ, J.,

license: Public Domain

text:
    SHERRY NUNNO ET AL. v. WALTER WIXNER II ET AL.
    (SC 16392)
    Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued February 15
    officially released August 21, 2001

      Joseph De Lucia, for the appellant (named plaintiff).

      Catherine S. Nietzel, for the appellees (defendants).

       This case was argued on February 15, 2001, before a panel of this court consisting of Chief Justice Sullivan and Justices Katz, Palmer, Vertefeuille and Zarella. Thereafter, the court pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Justices Borden and Norcott were added to the panel, and they have read the record, briefs and transcripts of the original oral argument.

   Opinion

VERTEFEUILLE, J.

The sole issue in this appeal is whether the provisions of General Statutes § 52-192a, concerning an offer of judgment by a plaintiff, apply to a judgment entered as a result of a mandatory arbitration proceeding pursuant to General Statutes § 52-549u. We conclude that they do not.

The following undisputed facts are relevant to this appeal. On December 10, 1997, the plaintiff, Sherry Nunno, was the operator of a motor vehicle that was involved in a collision with a motor vehicle operated by the defendant Walter Wixner II and owned by the defendant Walter Wixner (defendants). After filing this action, the plaintiff filed an offer of judgment for $19,000 pursuant to § 52-192a (a). The defendants did not accept the offer of judgment.

Subsequently, the case was referred to an arbitrator under the court’s mandatory arbitration program pursuant to § 52-549u and Practice Book § 23-61. After a hearing, the arbitrator issued a decision awarding the plaintiff $21,945. The arbitrator’s decision and award subsequently became a judgment of the court pursuant to General Statutes § 52-549z and Practice Book § 23-66.

The plaintiff thereafter filed a “Motion to Determine Plaintiffs Offer of Judgment,” seeking an award of 12 percent interest on the judgment pursuant to § 52-192a because the amount awarded by the arbitrator, which became the judgment of the court, exceeded the amount of the plaintiffs offer of judgment. The trial court ultimately denied the plaintiffs motion. This appeal followed.

On appeal, the plaintiff claims that the offer of judgment statute, § 52-192a, applies to court-mandated arbitration because the arbitration proceeding was part of a civil action. Specifically, the plaintiff asserts that the arbitration proceeding constituted a civil action because it was required by the court and was held in the form of a summary trial. In response, the defendants assert that the offer of judgment statute does not apply to a court-mandated arbitration proceeding because it is not a trial within the meaning of § 52-192a (b) and that applying offer of judgment interest would undermine the purposes of the court-mandated arbitration statute. We agree with the defendants and conclude that the legislature did not intend § 52-192a (b) to apply to court-mandated arbitration proceedings. Accordingly, we affirm the judgment of the trial court.

Our resolution of the plaintiffs claim is guided by well established principles of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutoiy language as applied to the facts of this case .... In seeking to determine that meaning, 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. . . . Finally, because the question presented by this appeal involves an issue of statutory construction, our review is plenary.” (Internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 386, 767 A.2d 687 (2001).

The plain language of § 52-192a (b) supports our conclusion that offer of judgment interest does not apply to judgments resulting from arbitration proceedings. The statute provides in part that “[ajl'ter trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendants failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .” General Statutes § 52-192a (b). The wording of § 52-192a (b) indicates the legislature’s intention that offer of judgment interest apply only “after trial . . . .” We conclude that an arbitration proceeding pursuant to General Statutes § 52-549u and Practice Book § 23-61 is not a trial within the meaning of § 52-192a (b).

The trial court is authorized to refer to an arbitrator any civil action in which the court has a reasonable expectation that the judgment will be less than $50,000. See General Statutes § 52-549u and Practice Book § 23-61. In such court-mandated arbitration proceedings, a lawyer with a minimum of five years civil litigation experience serves as the arbitrator. See General Statutes § 52-549w and Practice Book § 23-60. No record is made of the proceedings and strict adherence to the rules of evidence is not required. See Practice Book § 23-63. The arbitrator is required to submit a decision in writing within 120 days after the hearing. See Practice Book § 23-64. The parties then have the opportunity to request a trial de novo pursuant to Practice Book § 23-66 (c) within twenty days of the filing of the arbitrator’s decision. If neither party requests a trial de novo within twenty days, the decision of the arbitrator becomes the judgment of the court. See Practice Book § 23-66 (a).

Court-mandated arbitration proceedings pursuant to § 52-549u do not include many of the distinctive hallmarks of a trial. In a case involving private arbitration pursuant to a collective bargaining agreement, the United States Supreme Court concluded that “ [arbitration differs from judicial proceedings in many ways: arbitration carries no right to a jury trial as guaranteed by the Seventh Amendment; arbitrators need not be instructed in the law; they are not bound by rules of evidence; they need not give reasons for their awards; witnesses need not be sworn; the record of proceedings need not be complete; and judicial review, it has been held, is extremely limited.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 664, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). In another case the United States Supreme Court also distinguished arbitration from judicial proceedings, concluding that “arbitral factfinding is generally not equivalent to judicial factfinding. . . . [T]he record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.” (Internal quotation marks omitted.) McDonald v. West Branch, 466 U.S. 284, 291, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984). This court also has distinguished arbitration from judicial proceedings, concluding that an arbitration proceeding is not an “action” for purposes of the statute of limitations. See Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 503, 472 A.2d 780 (1984). In doing so, the court concluded that “arbitration proceedings do not occur in court, indeed that their very purpose is to avoid the formalities, the delay, the expense and vexation of ordinary litigation. . . . [T]hese proceedings are not governed by our rules of procedure. . . . [A]n arbitration proceeding is not an action within the meaning of that word as used in the [s]tatute of [limitations.” (Citations omitted; internal quotation marks omitted.) Id.

An examination of the arbitration proceeding in the present case supports our conclusion that the arbitration proceeding was not conducted as a trial. Although the arbitrator stated in his decision that “[this] hearing was held in the form of a summary trial,” no witnesses testified for either party and no formal exhibits were offered. The parties merely submitted copies of a police report, photographs, transcripts of depositions, medical reports and medical bills. The parties also summarized their respective cases through their counsel. After reviewing all of the information provided, the arbitrator issued his nonbinding award. The arbitration proceedings in this case differed greatly from a trial. The procedures were informal and parties were allowed to present unsworn evidence. None of the rules of evidence applied in this proceeding. In addition, the proceeding was presided over by a nonjudicial officer, whose decision was not binding on the parties. The court-mandated arbitration proceeding in this case did not constitute a trial.

An examination of the definition of the word “trial” found in Black’s Law Dictionary further supports our conclusion that arbitration proceedings do not constitute a trial for the purposes of § 52-192a (b). Black’s Law Dictionary (7th Ed. 1999) defines trial as “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” It further defines “judicial” as “[o]f or relating to, or by the court” and “determination” as “[a] final decision by a court or administrative agency . . . .’’Id. The court-mandated arbitration proceeding in this case was not formal, was not presided over by a judge, and did not result in a binding determination of any of the legal claims. The arbitration proceeding therefore did not constitute a trial.

The absence of any express language referring to arbitration proceedings in § 52-192a (b) further confirms our conclusion that offer of judgment interest does not apply to judgments resulting from arbitration awards. The legislature has adopted several statutes that establish procedures for converting arbitration awards into judgments of the court. See General Statutes § 52-549z (a); see also General Statutes § 52-417 et seq. Section 52-417 et seq., which provide generally applicable procedures for confirming, vacating and modifying arbitration awards by court order, were enacted prior to the legislature’s adoption of the offer of judgment statute. The legislature was, therefore, aware that arbitration awards can result in judgments of the court when it adopted § 52-192a (b). “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them. Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988).” (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 386, 698 A.2d 859 (1997). Despite its awareness that arbitration decisions can become judgments of the court, the legislature did not include judgments on arbitration awards within the express provisions of § 52-192a (b). Furthermore, the legislature has not amended § 52-192a (b) to include court-mandated arbitration proceedings since it adopted the statutes providing for court-mandated arbitration proceedings in 1982. The legislature’s failure to include arbitration proceedings in the express language of § 52-192a (b) supports our conclusion that the legislature did not intend offer of judgment interest to apply to judgments resulting from arbitration proceedings.

The legislative history of the statutes providing for court-mandated arbitration provides strong support for our conclusion that § 52-192a (b) does not apply to judgments resulting from that arbitration process. This legislative history demonstrates that the legislature intended these arbitration proceedings to be a form of alternate dispute resolution designed to assist parties to settle cases voluntarily. In 1997, during the course of the legislative debates concerning the enactment of the bill that later amended § 52-549u, the members of the House of Representatives discussed the purpose of the court-mandated arbitration proceedings. In the course of the debate, Representative Michael P. Lawlor, a proponent of the bill, was asked why the rules of evidence would not apply in these arbitration proceedings. 40 H.R. Proc., Pt. 4,1997 Sess., p. 1391. Representative Lawlor replied that “[t]his whole process of arbitration is an alternate dispute resolution mechanism which [is] intended to avoid unnecessary court delays. In effect these are the two parties sitting down with an impartial hearing officer to figure out if there is a resolution to the ease which would avoid a lengthy and expensive trial. . . . [T]his is what you might consideran elaborate pre-trial discussion.'” (Emphasis added.) Id., pp. 1391-92. Representative Lawlor went on to indicate that the purpose of the legislation was “essentially trying to encourage as many people as possible to go this route for a relatively small case where there are relatively simple issues at hand.” Id., p. 1393. Representative Lawlor’s comments clearly indicate that the legislature did not understand these arbitration proceedings to be a trial, or its equivalent. To the contrary, we conclude that the legislature intended these arbitration proceedings to be a desirable, informal means of resolving disputes before trial. The legislature’s understanding of these arbitration proceedings as a form of alternate dispute resolution, the use of which the legislature wanted to encourage, further supports our conclusion that § 52-592a (b) does not apply to a judgment entered as a result of court-mandated arbitration proceedings because, if the statute did apply, the parties would have an incentive to reject the arbitrator’s award and seek a trial de novo in order to avoid the payment of offer of judgment interest. This result would contravene the legislature’s intention in adopting court-mandated arbitration.

The punitive nature of the offer of judgment statute also reinforces our conclusion that § 52-549u does not apply to arbitration judgments. The punitive nature of § 52-192a has been recognized repeatedly. “An award of interest pursuant to § 52-192a (b) is punitive in nature .... Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 267, 513 A.2d 144 (1986); Kusha v. Respondowski, 3 Conn. App. 570, 574, 490 A.2d 1014 (1985). . . . This interest is mandated when the amount recovered is greater than or equal to the offer of judgment; see General Statutes § 52-192a (b); and that amount can include interest and attorney’s fees; Crowther v. Gerber Garment Technology, Inc., supra, 270-71; as well as double or treble damages. Gionfriddo v. Avis Rent a Car System, Inc., 192 Conn. 301, 307, 472 A.2d 316 (1984).” Gillis v. Gillis, 21 Conn. App. 549, 554, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990). The offer of judgment statute was “enacted to promote fair and reasonable pretrial compromises of litigation” by penalizing defendants who do not settle cases prior to trial. Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 651, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). By awarding 12 percent interest on all amounts recovered, including interest and attorney’s fees, § 52-192a “imposes a penalty for wasting this state’s judicial resources . . . [and serves as] an indigenous procedural device for promoting judicial economy . . . .” Id., 655.

The punitive nature of the offer of judgment statute is inconsistent with the legislature’s intention in enacting court-mandated arbitration. The legislature intended to encourage parties in fairly simple cases to use the arbitration proceeding to resolve cases without the need for lengthy and expensive trials. 40 H.R. Proc., supra, pp. 1391-92. Imposing a substantial penalty on a defendant who voluntarily settles a case as a result of court-mandated arbitration would both discourage such settlements and encourage demands for trials de novo. Both of these consequences would be in contrast to the legislative purpose to promote court-mandated arbitration as an additional method of alternate dispute resolution.

The judgment is affirmed.

In this opinion BORDEN, NORCOTT and PALMER, Js., concurred.

KATZ, J.,

with whom SULLIVAN, C. J., and ZARELLA, J., join, dissenting. At the core of this opinion is whether the offer of judgment statute, General Statutes § 52-192a, applies to court-mandated arbitration proceedings commenced pursuant to General Statutes § 52-549u. Today, based upon the “plain” language of § 52-192a and the legislative history of that statute, the majority concludes that § 52-192a does not apply to court-mandated arbitration proceedings. Because I disagree with this conclusion, I respectfully dissent.

The majority places heavy emphasis on the punitive nature of § 52-192a, concluding that applying the statute to court-mandated arbitration proceedings would undermine the legislature’s intent in enacting court-mandated arbitration, namely, to provide an incentive to parties to “settle cases voluntarily.” The majority also focuses on the phrase “after trial” as it is used in § 52-192a (b), concluding that it necessarily refers to a judicial proceeding that is presided over by a judge and formally governed by the mies of evidence, not to a court-mandated arbitration proceeding that is presided over by a nonjudicial officer in which a formal application of the rules of evidence is not required. Accordingly, the majority concludes that the arbitration proceeding in this case was not a trial, and therefore, that the offer of judgment statute does not apply.

Although I agree with the majority that one effect of the arbitration program is that it aids in settling cases, I disagree that that is the primary purpose of the program. More importantly, I fail to see how a goal of encouraging parties to settle cases voluntarily applies in the context of this case in which neither party elected to participate in the arbitration program. Furthermore, I do not agree that the punitive effect of § 52-192a undermines § 52-549u. Finally, although the language of § 52-192a is hardly a model of clarity, I do not read the legislature’s use of the word “trial” as narrowly as the majority. Accordingly, I believe that mandatory arbitration proceedings constitute “trials” within the meaning of § 52-192a.

A

My analysis begins with the purpose of § 52-192a. “In all litigation, a party faces the potential adverse consequences of a defeat, including the expense of a trial and costs. Section 52-192a provides an additional incentive to settle a lawsuit and avoid a trial in certain cases by imposing an increased penalty upon a nonsettling litigant.” Murphy v. Marmon Group, Inc., 562 F. Sup. 856, 859 (D. Conn. 1983); see also Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984) (purpose of § 52-192a is encouragement of settlements); Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 814, 628 A.2d 1 (1993) (statute “encourage[s] early, fair, and reasonable settlements and . . . encourage[s] plaintiffs to make offers of judgments promptly” by penalizing defendants who do not settle cases prior to trial), aff'd, 229 Conn. 525, 642 A.2d 7 (1994). As the majority correctly notes, quoting Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 655, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990), “§ 52-192a ‘imposes a penalty for wasting this state’s judicial resources . . . [and serves] as an indigenous procedural device for promoting judicial economy ....’”

“Consistent with this broad statutory intent, § 52-192a (a) authorizes a plaintiff’s offer of judgment . . . [in] any civil action based upon contract or for the recovery of money . . . .” (Emphasis added; internal quotation marks omitted.) Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 305. Thus, the plain language of this provision grants a plaintiff the unqualified right to submit an offer of judgment to a defendant in any contract action for the recoveiy of money. No distinction is made between actions in which a trial judge presides and actions in which a trial judge refers the case to an arbitrator.

The issue is whether the purpose of § 52-192a can be accomplished without undermining the goal of arbitration. Unlike the majority, I consider that both statutes can be accommodated. First, although I recognize that settling cases may be one effect of arbitration in general, and indeed, an ancillary benefit of § 52-549u, I do not agree that that is the primary goal of § 52-549u. The legislative history of § 52-549u indicates that the primary goal in enacting § 52-549u was to reduce the backlog of civil jury cases, independent of the issue of settlement. See 25 S. Proc., Pt. 11, 1982 Sess., p. 3658, remarks of Senator Howard T. Owens Jr. (explaining that “[t]he court system in the State is being choked by new cases ... all types of civil cases .... It’s just, [courts are] inundated with the stuff and [at] some stage we’re going to have to start weeding this out and 1 think this is a step in the right direction.”); 25 S. Proc., supra, p. 3660, remarks of Senator Eugene A. Skowronski (responding that “[m]aybe there is some merit to the concept that it may relieve some of the overcrowding, but to mandate this kind of system on a statewide basis as this bill is doing is a serious mistake for our state”); 25 H.R. Proc., Pt. 24,1982 Sess., p. 7665, remarks of Representative Richard D. Tulisano (stating that purpose of court-mandated arbitration is to “reduce judicial backlog, particularly in civil matters” [emphasis added]); 25 H.R. Proc., supra, p. 7666, remarks of Representative Richard O. Belden (noting that “we still don’t seem to be able to take care of the backlog in the system” [emphasis added]); see also 40 S. Proc., Pt. 4, 1997 Sess., pp. 1260-1261, remarks of Senator Thomas F. Upson (“[Wjhatever we can do to unclog the system ... is good .... It’s not an alternate dispute, it’s arbitration, but it’s one way to expedite cases so that people won’t be in the system two, three, four or five years.” [Emphasis added.]).

Second, because I believe that reducing the backlog in the trial courts is the primary purpose of § 52-549u, I disagree with the majority that the goal of § 52-549u would be undermined if the prejudgment interest statute were to be applied to defendants in the mandatory arbitration program. On the contrary, I believe that, in the context of a mandatory arbitration program, as utilized in this case, the punitive component of § 52-192a used to encourage settlement, and thereby avoid wasting scarce judicial resources, can be harmonized with the goal of § 52-549u to reduce court backlog. Indeed, just as judicial resources are wasted in jury-cases, they too are wasted, admittedly to a lesser degree, in court-mandated arbitration proceedings.

Furthermore, I disagree with the majority that if § 52-192a were to apply in court-mandated arbitration proceedings, “the parties would have an incentive to reject the arbitrator’s award and seek a trial de novo in order to avoid the payment of offer of judgment interest.” I am hard pressed to believe that a defendant against whom the arbitrator has ruled would seek a new trial and the attendant expenses simply to avoid prejudgment interest. Moreover, should that unlikely event occur, the successful plaintiff would be free to waive the prejudgment interest in exchange for the binding “judgment of the court . . . .” See Practice Book § 23-66 (a) and (c).

B

I now turn to the issue of whether mandatory arbitration proceedings constitute “trials” within the meaning of § 52-192a. Subsection (b) of § 52-192a, in defining the guidelines for calculating the interest award to be levied against the defendant for nonacceptance of the plaintiffs offer of judgment, refers to a “trial.” In its discussion of the significance of the use of the word trial, the majority states that the term refers to “[a] forma1 judicial examination of evidence and determination of legal claims in an adversary proceeding.” (Emphasis added.) The majority concludes that because “the court-mandated arbitration proceeding in this case was not formal, was not presided over by a judge, and did not result in a binding determination of any of the legal claims,” it was not a trial.

First, although I agree that the term trial generally refers to a formal judicial proceeding,1 do not agree that this is its only meaning. Cf. Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 306 (term “verdict” has more than one meaning). The word trial has been defined as “ ‘the investigation and decision of a matter in issue between parties before a competent tribunal, including all the steps taken in the case from its submission to the court or jury to the rendition of judgment.’ ” (Emphasis added.) Tureck v. George, 44 Conn. App. 154, 157, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997), quoting 88 C.J.S., Trial § 1 (1955); see also 75 Am. Jur. 2d, Trial § 1 (1991) (defining trial as “a judicial investigation and determination of the issues between the parties to an action” [emphasis added]). The phrase “after trial” as it is used in § 52-192a (b) has been defined simply as referring to a “final judgment . . . .” (Internal quotation marks omitted.) Tureck v. George, supra, 162. In this case, there was an investigation by a competent tribunal, the arbitrator. In addition, I believe that this proceeding was judicial in nature because it took place at the direction and under the guidance of the trial court. Moreover, the majority’s conclusion that the arbitration proceeding in this case did not result in any binding determination of any legal claims is not accurate. Pursuant to Practice Book § 23-66 (a), “a decision of the arbitrator shall become a judgment of the court if no claim for trial de novo is filed in accordance with subsection (c).” (Emphasis added.) Section 23-66 (c) provides in part that “[a] claim for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision. . . .’’In this case, the plaintiff did not file a claim for a trial de novo. Accordingly, the decision of the arbitrator was a binding final judgment of the court.

Furthermore, I believe that the majority’s narrow interpretation of the word trial is inconsistent with this court’s precedent in which we have interpreted terms under § 52-192a broadly. In Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 305-306, this court examined the word “verdict” as it was used in the revision of § 52-192a (b) that existed at the time of the 1982 trial court judgment in that case. The court concluded that under § 52-192a (b), verdict referred not only to jury trials, as that term generally connotes, but to court trials as well, despite the fact that the statute did not expressly specify that it applied to court cases. Id., 305. Specifically, the court noted that § 52-192a (a) authorized a plaintiffs offer of judgment in “any civil action . . . .” (Internal quotation marks omitted.) Id. On that basis, the court concluded that “[tjhese broad statutory provisions should not be undermined solely because § 52-192a (b), in determining the penalty for nonacceptance of a plaintiffs offer of judgment, refers to a ‘verdict.’ ” Id., citing Murphy v. Marmon Group, Inc., supra, 562 F. Sup. 859-60. Similarly, in the present case, I believe that we should interpret the term trial broadly to refer not only to court cases, but to court-mandated arbitration proceedings as well.

Second, the majority’s reliance on the informal application of the rules of evidence in support of its conclusion that the arbitration proceeding did not constitute a trial is misplaced. In fact, in juvenile proceedings, courts routinely relax their “strict application of the formal rules of evidence to reflect the informal nature of juvenile proceedings,” yet such actions are still considered trials. Conn. Code Evid. § 1-1 (b), commentary; see also Practice Book § 34-2 (a) (juvenile proceedings are essentially civil in nature and should “at all times be as informal as the requirements of due process and fairness permit”); In re Jessica B., 50 Conn. App. 554, 571, 718 A.2d 997 (1998) (formal rules of evidence given “ ‘liberal interpretation’ ”); In re Cynthia A., 8 Conn. App. 656, 662, 514 A.2d 360 (1986) (inpermitting hearsay evidence to be admitted, court noted that “in juvenile proceedings certain procedural informalities are constitutionally permissible, allowing, for example, the liberal interpretation of the formal rules of evidence as long as due process standards are observed”).

The majority also makes much of the fact that the parties stipulated to all the evidence, indicating that this impacts the determination of whether the arbitration proceeding constituted a trial. Parties are entitled to stipulate to evidence. In fact, trial courts routinely allow parties to do so. Accordingly, I fail to see how this controls the issue of whether the proceeding at issue constituted a trial.

Third, the fact that the proceeding was presided over by an arbitrator does not dictate whether there was a trial because the parties in this case did not voluntarily proceed to arbitration. Indeed, as noted previously, the trial court, exercising its discretion under to § 52-549u, referred this case to the arbitrator under its mandatory arbitration program. There was no agreement by the parties to proceed to arbitration with the goal of settling the case. Moreover, the decision by the parties not to file a claim for a trial de novo is no more or less a settlement than a decision by the parties not to appeal from a judgment of the trial court.

Finally, under Practice Book § 23-66 (a) and (c), the parties in this action were entitled to file a claim for a trial de novo within twenty days following the filing of the judgment by the arbitrator. The phrase, “trial de novo” clearly suggests that the arbitration proceeding was, in fact, a trial. Indeed, the legislative history of § 52-549u supports this view. During debate in the House of Representatives, Representative Michael P. Lawlor stated that “any finding of an arbitrator shall not be admissible in a subsequent trial—what lawyers call a trial [de novo] or a trial from scratch .... [Ejvery party who is affected by such an arbitration decision shall have a right to elect a trial, another trial, a new trial, a trial [de novo].” (Emphasis added.) 40 H.R. Proc., Pt. 4, 1997 Sess., p. 1388. Therefore, I do not agree with the majority that the arbitration proceeding in this case did not constitute a trial. Accordingly, I believe that § 52-192a, read in its totality, encompasses court-mandated arbitration proceedings. See Murphy v. Marmon Group, Inc., supra, 562 F. Sup. 858 (§ 52-192 “clearly creates a substantive statutory right .... Rather than governing merely the manner and means of pursuing a claim in court, the law creates a right in all civil plaintiffs to claim interest on responsible settlement offers . . . .” [Emphasis added; internal quotation marks omitted.]); Lutynski v. B. B. & J. Trucking, Inc., supra, 31 Conn. App. 812 (“an award of interest under § 52-192a is mandatory, and the application of [the statute] does not depend on an analysis of the underlying circumstances of the case or a determination of the facts” [internal quotation marks omitted]).

In conclusion, because I believe that the offer of judgment statute should apply to court-mandated arbitration proceedings, I respectfully dissent.

       General Statutes § 52-192a provides: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plainüff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the “offer of judgment” shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment,’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”
      Section 52-192a was amended by No. 01-71, § 1, of the 2001 Public Acts, to require any offer of judgment to be filed not later than thirty days prior to trial. A few minor technical changes also were made. These changes do not take effect until October 1, 2001, and are not relevant to this appeal. For purposes of this opinion, references herein to § 52-192a are to the 2001 revision.

       General Statutes § 52-549u provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court may malee such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to an arbitrator, for proceedings authorized pursuant to this chapter, any civil action in which in the discretion of the court, the reasonable expectation of a judgment is less than fifty thousand dollars exclusive of legal interest and costs and in which a claim for a trial by jury and a certificate of closed pleadings have been filed. An award under this section shall not exceed fifty thousand dollars, exclusive of legal interest and costs. Any party may petition the court to become eligible to participate in the arbitration process as provided in this section.”

         Although Joseph Taft, a passenger in the vehicle operated by Nunno at the time of the collision, was also a plaintiff in this action, he is not participating in this appeal, which is being pursued by the named plaintiff alone. We, therefore refer to Nunno as the plaintiff throughout this opinion.

       See footnote 2 of this opinion.

       Practice Book § 23-61 provides: “The court, on its own motion, may refer to an arbitrator any civil action in which, in the discretion of the court, the reasonable expectation of a judgment is less than $50,000, exclusive of interest and costs and in which a claim for a trial by jury and a certificate of closed pleadings have been filed. An award under this section shall not exceed $50,000, exclusive of legal interest and costs. Any party may petition the court to participate in the arbitration process hereunder.”

       General Statutes § 52-549z provides: “(a) A decision of the arbitrator shall become a judgment of the court if no appeal from the arbitrator’s decision by way of a demand for a trial de novo is filed in accordance with subsection (d) of this section
      “(b) A decision of the arbitrator shall become null and void if an appeal from the arbitrator’s decision by way of a demand for a trial de novo is filed in accordance with subsection (d) of this section.
      “(c) For the purpose of this section the word “decision” shall include a decision and judgment rendered pursuant to subsection (a) of section 52-549y, provided the appeal is taken by a party who did not fail to appear at the hearing, and it shall exclude any other decision or judgment rendered pursuant to said section.
      “(d) An appeal by way of a demand for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision and it shall include a certification that a copy thereof has been served on each counsel of record, to be accomplished in accordance with the rules of court. The decision of the arbitrator shall not be admissible in any proceeding resulting after a claim for a trial de novo or from a setting aside of an award in accordance with section 52-549aa.”

       Practice Book § 23-66 provides: “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c).
      “(b) A decision of the arbitrator shall become null and void if a claim for a trial de novo is filed in accordance with subsection (c).
      “(c) A claim for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision. Thirty days after the filing of a timely claim for a trial de novo the court may, in its discretion, schedule the matter for a trial within thirty days thereafter. Only a party who appeared at the arbitration hearing may file a claim for a trial de novo. The decision of the arbitrator shall not be admissible in any proceeding resulting after a claim for a trial de novo pursuant to this section or from a setting aside of an award pursuant to General Statutes § 52-549aa.”

       On January 24,2000, the trial court initially granted the plaintiff’s motion, without objection. On February 9, 2000, the defendants filed a motion for reconsideration, stating that there was in fact an objection to the plaintiffs motion. On June 12, 2000, the trial court heard oral argument on the defendant’s motion for reconsideration. The trial court then issued its decision on July 7,2000, holding that “mandatory arbitration is not a trial and therefore the offer of judgment provisions do not apply.”

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       The plaintiff also argues that applying offer of judgment interest to awards arising from a jury or bench trial and not applying it to awards arising from arbitration proceedings violates the equal protection clauses of the state and federal constitution. The plaintiff did not adequately brief these claims, however, and, therefore, she is deemed to have abandoned them. See Practice Book § 67-4; Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 38, 717 A.2d 77 (1998) (issues not adequately briefed may be deemed abandoned); see also Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990).

       General Statutes § 52-549w provides in relevant part: “(a) Upon publication of a notice in the Connecticut Law Journal, any commissioner of the Superior Court admitted to practice in this state for at least five years, who has civil litigation experience and who is willing and able to act as an arbitrator, may submit his name to the Office of the Chief Court Administrator for approval to be placed on a list of available arbitrators for one or more judicial districts. The criteria for selection and approval of arbitrators shall be promulgated by the judges of the Superior Court. Upon selection and approval by the Chief Court Administrator, for such term as he may fix, the arbitrators shall be sworn or affirmed to try justly and equitably all matters at issue submitted to them. The Chief Court Administrator, in his discretion, may at any time revoke any such approval.
      “(b) Each arbitrator shall receive one hundred dollars for each day he is assigned to a courthouse facility to conduct proceedings as an arbitrator and an additional twenty-five dollars for each decision filed with the court. In difficult or extraordinary cases, the Chief Court Administrator may, in his discretion, make a further allowance not to exceed two hundred dollars for services rendered attendant to but not part of the hearing. . . .”

       Practice Book § 23-60 provides: “(a) Upon publication of notice requesting applications, any commissioner of the superior court admitted to practice in this state for at least five years, and who possesses civil litigation experience may submit his or her name to the office of the chief court administrator for approval to be placed on a list of arbitrators for one or more judicial districts.
      “(b) The chief court administrator shall have the power to designate arbitrators for such term as the chief court administrator may fix and, in his or her discretion, to revoke such designation at any time.
      “(c) Applicants and arbitrators must satisfactorily complete such training programs as may be required by the chief court administrator.”

       Practice Boole § 23-63 provides: “In matters submitted to arbitration no record shall be made of the proceedings and the strict adherence to the civil rules of evidence shall not, be required.”

       Practice Book § 23-64 provides: “(a) The arbitrator shall state in writing the decision on the issues in the case and the factual basis of the decision. The arbitrator shall include in the decision the number of days on which hearings concerning that case were held.
      “(b) Within 120 days of the completion of the arbitration hearing the arbitrator shall file the decision with the clerk of the court together with sufficient copies for all counsel.”

       See footnote 8 of this opinion.

       We disagree with the dissent’s conclusion that the use of the term “trial de novo” suggests that the nonbinding arbitration was a trial. As Representative Michael P. Lawlor stated during legislative debate on a bill that subsequently amended § 52-549u, “[e]veiy party who is affected by such an arbitration decision shall have a right to elect a trial, another trial, a new trial, a trial [de novo].” (Emphasis added.) 40 H.R. Proc., Pt. 4, 1997 Sess., p. 1388. “[I]f you don’t agree with the outcome [you are] able to go back to square one and ask for a trial from the start.” Id., p. 1392.

       The dissent cites to a portion of the legislative history of § 52-549u in support of its statement that one of the stated goals of the statute was to reduce the backlog of civil jury cases “independent of the issue of settlement.” We disagree that the backlog is reduced “independent of . . . settlement.” Close analysis of the operation of § 52-549u reveals that the backlog of civil jury cases is reduced only if the parties agree to accept the arbitrator’s award, which is otherwise nonbinding. After the arbitrator renders his or her award, either party can reject it by simply requesting a trial de novo. If both parties choose to accept the award by failing to request a trial de novo, judgment enters consistent with the award. We see this process as aidn to settlement, in that a neutral third party, after hearing from both parties, proposes a resolution that the parties are free to accept or reject. While the dissent focuses on the fact that participation in the arbitration is mandatory, we focus on the fact that if the case is resolved, the resolution occurs only as a result of the voluntary agreement of the parties.

       In this case, all parties agree that the arbitration proceeding constituted a civil action.

       In 1997, the legislature amended § 52-549u. See Public Acts 1997, No. 97-24, § 2 (P.A. 97-24) (effective January 1, 1998). Public Act 97-24, among other things, increased the estimated worth of a case for which a trial judge could refer to arbitration from $15,000 to $50,000. In addition, P.A. 97-24 allowed any party to petition the court to become eligible to participate in the arbitration process. Prior to that amendment, only the trial court, in its discretion, could refer a case to an arbitrator. See General Statutes (Rev. to 1997) § 52-549u. Another amendment, No. 97-40, § 7, of the 1997 Public Acts, made a minor technical change that is not relevant to this appeal.

       The majority, however, refers to aspecific comment made by Representative Michael P. Lawlor dining debate in the House of Representatives concerning the enactment of a bill that later amended § 52-549u; see footnote 2 of this dissent; concluding that his comment clearly indicates that the legislature’s purpose in enacting § 52-549u was to provide a form of alternate dispute resolution and assist parties in voluntarily settling cases. I disagree with the majority’s characterization of Representative Lawlor’s comments. In their entirety, I believe that Representative Lawlor’s comments indicate that the purpose of § 52-549u was to speed up the process in small claims cases in order to decrease the backlog in the trial court. On the floor of the House of Representatives, Representative Lawlor was asked why, under the 1997 bill, the rules of evidence would no longer govern mandatory arbitration proceedings. He responded in general terms noting that the “whole process of arbitration is an alternate dispute resolution mechanism which [was] intended to avoid unnecessary court delays. In effect these are the two parties sitting down with an impartial hearing officer to figure out. if there is a resolution to the case which would avoid a lengthy and expensive trial. I suppose on one level this is what you might consider an elaborate pre-trial discussion. ... If it, the current system, is to employ these strict rules of evidence which requires people to make objections against hearsay and other things . . . [i]t makes it a much more formal and therefore, a lengthy process. ... So we’re trying to balance our interest in a speedy resolution of many cases which really are not that complicated, with every party’s right to a full and fair trial before a jury if they [later] choose.” (Emphasis added.) 40 H.R. Proc., Pt. 4, 1997 Sess., pp. 1391-93.
      Therefore, although I agree that Representative Lawlor believed that arbitration proceedings, in general, had the effect of encouraging people to settle cases due to their informal nature, it is clear to me that he believed the purpose of the arbitration program was to dispose of uncomplicated cases quickly. Indeed, eliminating the requirement that the rules of evidence must govern arbitration proceedings aids in this goal because cases can be resolved faster, enabling a greater number of cases to be referred from the trial court to arbitration.
      As I have indicated; see footnote 2 of this dissent; in 1997, the legislature added the following language to § 52-549u: “Any party may petition the court to become eligible to participate in the arbitration process . . . .” [Emphasis added.) P.A. 97-24, § 2. Prior to that amendment, only “a court, in its discretion” could refer a case to an arbitrator. See General Statutes (Rev. to 1997) § 52-549u. Accordingly, when one or both parties elect to participate in the arbitration program, I agree that the legislature likely intended to encourage parties to resolve cases voluntarily without a lengthy and expensive trial. Indeed, this would also help to reduce the backlog of civil jury cases. When the parties have not agreed to participate in the arbitrat ion program, however, and, in fact, have been mandated by the court to proceed down that path, I fail to see how they necessarily have any intent to settle the case voluntarily. Therefore, I do not agree with the majority that mandatory arbitration promotes the voluntary settlement of cases.

       As noted previously, all parties in this case agree that the arbitration proceeding was court-manda ted and that neither party had elected to participate. in the arbitration process.

       Arbitrators are paid $100 per day and an additional $25 for each decision filed with the court. In addition, the proceedings are conducted in the courtroom. General Statutes § 52-549w (b).

       Although the majority maintains that the term trial does not encompass informal proceedings, we note that the definition of “determination” in Black’s Law Dictionary (7th Ed. 1999), as relied upon by the majority, includes a final decision by an administrative agency. “[Proceedings before administrative agencies, [however,] are informal and are conducted without regard to the strict rules of evidence . . . .” Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); see also Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 98, 596 A.2d 374 (1991)(“administra-tive agencies are not governed by the strict rules of evidence”), citing Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984) (administrative hearings are “informal and are conducted without regard to the strict rules of evidence”). This informality is indeed more consistent with how this dissent views trials, as discussed subsequently herein.

       It is also important to note that the arbitrator expressly referred to the proceeding as a “summary trial” in his memorandum of decision.

       Section 52-192a (a) has since been amended and now expressly includes the phrase “prior to the rendering of a verdict by the jury or an award by the court . . . .” (Emphasis added.) See Public Acts 1994, No. 94-20.

       Prior to P.A. 97-24, § 2, court-mandated arbitration proceedings were governed by the rules of evidence. See 40 H.R. Proc., Pt. 4, 1997 Sess., p. 1388, remarks of Representative Michael P. Lawlor (amendment “eliminates the requirement which has been the case up until now that the rules of evidence shall govern the proceedings”). This requirement was eliminated in order to speed up the arbitration process. Id., p. 1392.