text:
    STATE OF CONNECTICUT v. WARREN R. PATTERSON
    (15289)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.

      Argued November 29, 1995
    decision released April 2, 1996

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Carol Dreznick, assistant state’s attorney, for the appellant (state).

      Craig A. Raabe, with whom was Dina S. Wenger, for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
   NORCOTT, J.

The dispositive issue in this certified appeal is whether, after having been tried and convicted of a felony, the defendant, Warren R. Patterson, has a constitutional right to a presentence investigation report (PSI) prior to being sentenced. The Appellate Court held that the trial court violated the defendant’s constitutional right to due process because it had failed to order a PSI. State v. Patterson, 37 Conn. App. 801, 819-20, 658 A.2d 121 (1995). We granted the state’s petition for certification to appeal from the judgment of the Appellate Court. We conclude that a criminal defendant does not have a federal constitutional right to a PSI and, accordingly, we reverse the judgment of the Appellate Court.

After an extended procedural history, this case is now before us for the second time. See State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994). The defendant was charged with possession of marijuana in violation of General Statutes § 21a-279 (c), possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b), and violation of probation, to which he earlier had been sentenced based on a separate conviction also involving the sale of narcotics. After a jury trial, he was acquitted of the first charge and convicted of the second, and the trial court rendered a judgment of conviction and a judgment of revocation of probation. The defendant appealed from the judgments of conviction and revocation of probation to the Appellate Court, which reversed the judgments. State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146 (1993). Thereafter, the state petitioned for certification to appeal from the judgment of the Appellate Court. We granted the petition limited to the issue of whether the judge in a criminal trial must be present in the courtroom during the entire jury voir dire. State v. Patterson, 227 Conn. 901, 630 A.2d 72 (1993). We reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the defendant’s remaining claims. State v. Patterson, supra, 230 Conn. 386-87.

On remand, the defendant claimed that the trial court improperly had failed to follow procedural rules, including Practice Book § 910, in sentencing him. State v. Patterson, supra, 37 Conn. App. 803, 815. The Appellate Court agreed, and held that the trial court had violated the defendant’s federal constitutional right to due process because it had failed to order a PSI. Id., 821.

Relying on the fact that a criminal defendant is entitled to due process during the sentencing stage, which includes the right to effective assistance of counsel and the right not to be sentenced based on improper factors or erroneous information, and on the fact that a PSI is the principal method of furnishing information to the trial court during the sentencing stage, the Appellate Court concluded that a PSI is necessary to a meaningful right to counsel and, therefore, is required to secure the defendant’s right to due process at sentencing. Id., 819-20.

The state petitioned for and was granted certification to appeal from the judgment of the Appellate Court. See footnote 2. While the petition was pending, the defendant’s counsel moved for permission to withdraw his appearance, because the defendant had fled the jurisdiction and his whereabouts were unknown. Subsequently, because of the substantial public interest at stake, we granted a motion filed by the Connecticut Criminal Defense Lawyers Association to appear as amicus curiae on behalf of the defendant and to file an amicus brief. We thereupon granted defense counsel’s motion to withdraw.

The following facts are undisputed. “Immediately following the verdict, the trial court excused the jury and stated its intention to impose a sentence at that time. The defendant’s counsel made an oral motion for a one week continuance ‘for the defendant to get certain affairs in order’ and in order ‘to file motions.’ Shortly after the court denied this motion, counsel reiterated his request asserting, ‘I’m going to ask again for a short continuance. If not a week, Your Honor, then a day or two so the defendant can get his life in order prior to being incarcerated.’ ” Id., 817. Prior to imposing a sentence, however, the court asked defense counsel if he would like to be “heard on [the] sentencing.” In response, in addition to his request for a short continuance, defense counsel requested leniency, noting that the defendant had several children for whom he cared, that there were no victims in this case, that no one was injured and that the quantity of narcotics involved in the conviction was small. Thereafter, the court sentenced the defendant to five years for the present conviction and eighteen months for the probation violation, to be served consecutively.

On appeal, the state claims that the Appellate Court improperly concluded that the defendant has a constitutional right to a PSI under the due process clause of the fourteenth amendment to the United States constitution. In that connection, the state argues that (1) the defendant’s right to due process at sentencing does not include the right to a PSI, and (2) although a liberty interest may arise from state statutes and court rules, the defendant cannot prevail under this theory in light of the recent United States Supreme Court decision in Sandin v. Conner, U.S. , 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), in which the court set forth the proper analysis for determining when such liberty interests arise. In the alternative, the state claims that even if we were to hold that the defendant has a constitutional right to a PSI, he waived that right when defense counsel failed to object to the trial court’s failure to order a PSI during the sentencing stage. Finally, the state claims that even if we were to hold that the defendant did not waive his right to a PSI, any error was harmless because the trial court, in determining the appropriate sentence, had before it virtually all of the information that would have been provided by a PSI. We agree with the state that the defendant does not have a constitutional right to a PSI and reverse the judgment of the Appellate Court.

“The fourteenth amendment provides, in part, ‘nor shall any State deprive any person of life, liberty or property, without due process of law . . . .’ The interest at stake in the present proceeding is [the defendant’s] liberty interest. There are two elements which must be established in order to find a due process violation. First, because not every liberty interest is protected, [the defendant] must establish that he has a liberty interest that comes within the ambit of the fourteenth amendment. Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983); Meachum v. Fano, 427 U.S. 215, 223-24, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 571, 409 A.2d 1020 (1979). If it is determined that a protected liberty is implicated, then the second element that must be addressed is what procedural protections are ‘due.’ Goss v. Lopez, 419 U.S. 565, 577, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); Board of Regents v. Roth, supra, 569-70; Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); see Williams v. Bartlett, 189 Conn. 471, 477, 457 A.2d 290 (1983).” State v. Davis, 190 Conn. 327, 336-37, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983).

Due process analysis begins with the identification of the interests at stake. “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.” (Internal quotation marks omitted.) State v. Campbell, 224 Conn. 168, 182, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993). The amicus claims that there are two liberty interests of which the defendant has been deprived without due process of law: (1) his liberty interest in the sentencing process; and (2) his liberty interest in a PSI that arises from Practice Book § 910. Our analysis, therefore, is bifurcated.

I

The state contends that the Appellate Court’s conclusion that the defendant’s right to due process at sentencing includes the right to a PSI is not supported by the traditional due process balancing test. See Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We agree.

It is undisputed that the defendant possesses a liberty interest that is implicated during the sentencing process. In the present case, the Appellate Court based its decision on this interest and the due process rights emanating therefrom. “[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. . . . The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.” (Citation omitted.) Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977). “Although a criminal defendant is entitled to due process of law at sentencing . . . the range of due process rights in sentencing procedures is not as extensive as that at trial. Williams v. New York, 337 U.S. 241, 246-47, 69 S. Ct. 1079, 93 L. Ed. 1337, reh. denied, 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949); United States v. Adams, 694 F.2d 200, 202-203 (9th Cir. 1982) [cert. denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L. Ed. 2d 1347 (1983)]; State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985).” (Internal quotation marks omitted.) State v. Patterson, supra, 37 Conn. App. 818-19.

“ ‘Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . .’ United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979). Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959). It is a fundamental sentencing principle that a sentencing judge may ‘appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.’ United States v. Tucker, 404 U.S. 443, 446,92 S. Ct. 589,30 L. Ed. 2d 592 (1972). The trial court’s discretion, however, is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982). As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion. See United States v. Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982); United States v. Robelo, supra [870].” State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). Although a “defendant is entitled to counsel at sentencing hearings and may not be sentenced on the basis of improper factors or erroneous information . . . the due process clauses of the state and federal constitutions do not in all circumstances require a judge to hold hearings and give a convicted person an opportunity to participate in those hearings when determining the sentence to be imposed.” (Citations omitted; internal quotation marks omitted.) State v. Thompson, supra, 197 Conn. 77-78.

“Due process analysis requires balancing the government’s interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures. Pet v. Department of Health Services, 207 Conn. 346, 364, 542 A.2d 672 (1988). All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard ... to insure that they are given a meaningful opportunity to present their case. Id., quoting Mathews v. Eldridge, [supra, 424 U.S. 348-49]. Under this analysis, the court must consider three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Pet v. Department of Health Services, supra, [364,] quoting Mathews v. Eldridge, supra, 335.” (Internal quotation marks omitted.) Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 661-62, 591 A.2d 101 (1991).

Applying this analysis to the present case, we conclude that the defendant’s right to due process at sentencing does not include the right to a PSI. First, the defendant possesses an obvious interest in receiving the shortest possible sentence. The court’s provision of, or failure to provide, a PSI will affect this interest, although its effect will vary depending on whether the information in the PSI is favorable or unfavorable to the defendant. The amicus argues that the defendant also has an interest in fair and accurate sentencing, as well as long-term collateral interests, which may be impacted by a PSI or the lack thereof. As the state correctly notes, however, if, as a result of a PSI, a court were likely to impose a sentence, which while fair and accurate nonetheless exceeds the sentence that it would otherwise impose, then it is clearly in the defendant’s interest that the PSI not be generated. The effect that a PSI will have on the defendant’s long-term interests depends on the particular circumstances and would tip the scale in favor of requiring a PSI only to the extent that it is favorable to the defendant. We conclude, therefore, that the first element of the due process balancing test is essentially neutral.

The second element of the test involves consideration of the risks arising from the lack of a PSI and the probable value associated with providing a PSI. The primary risk associated with the lack of a PSI is the possibility that the sentence imposed will be based on unreliable and insufficient information. This risk is substantially minimized, however, by other constitutional safeguards. For example, a criminal defendant has a constitutional right to the effective assistance of counsel during the sentencing stage and a constitutional right not to be sentenced on the basis of improper factors or erroneous information. See State v. Thompson, supra, 197 Conn. 77-78. Presumably, effective defense counsel will present to the court all relevant mitigating material consistent with the defendant’s best interests and will ensure that all information presented to the court by the state meets the standards of reliability and relevance applicable during sentencing. Indeed, in holding that there is a constitutional light to counsel at sentencing, the United States Supreme Court stated that “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” Mempa v. Rhay, 389 U.S. 128, 135, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967). Similarly, the state, represented by the state’s attorney, has an interest in presenting accurate aggravating material, which it can present to the court irrespective of the presence of a PSI. Thus, the presence of both counsel — for the defendant, and for the state — serves as an additional safeguard against the risk of a sentence imposed on the basis of unreliable and inaccurate information.

We do not belittle the potential benefits of providing a PSI at sentencing. The “sole purpose [of a PSI] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.” State v. Gullette, 3 Conn. Cir. Ct. 153, 167, 209 A.2d 529 (1964). The primary value of a PSI stems from the information contained, therein, not from the report itself. Most of this information can be brought to the trial court’s attention by either party by means other than a PSI. In fact, in the present case, without the aid of a PSI, the trial court had knowledge of the circumstances of the offense because: (1) the trial had just been completed; (2) the court had access to a PSI from the prior year, which was generated in connection with a separate charge and contained information regarding the defendant’s criminal record and social history; and (3) the court was presented with information by defense counsel regarding the defendant’s present condition. Moreover, because the crime involved was the sale of narcotics, there was no identifiable victim to interview. All of this information was available to the trial court and could have been supplemented by either party.

The amicus argues that a PSI is one of the few safeguards available to a defendant to decrease the risk of unfairness at sentencing arising out of the court’s broad discretion and the informal procedural rules applicable during the sentencing stage. Courts, however, are afforded equally broad discretion in imposing a sentence when a PSI has been provided, the contents of which are governed by equally informal evidentiary rules. See State v. Harmon, 147 Conn. 125, 128, 157 A.2d 594 (1960). Thus, we are not persuaded that mandating the availability of a PSI as a constitutional prerequisite to a valid sentence will abate these concerns.

Finally, we consider the third element of the balancing test, namely, the governmental interests affected. It is undisputed that the government has an interest in fair and accurate sentencing, which, arguably, is served by ordering a PSI. See footnote 12. In the absence of a PSI, however, this interest can be adequately protected by both parties, whose own interests will provide an incentive to present all information that they consider relevant to a fair and accurate sentence. Conversely, the state would bear a substantial burden if required, as a matter of due process, to provide all convicted defendants with a PSI. The amicus argues that, as a practical matter, the increased burden on the government would be minimal because a PSI is routinely ordered unless waived by the defendant. Presently, however, a PSI is not required for all convicted criminals. See footnote 1. Thus, to require the government to provide a PSI for all defendants convicted of crimes for which the penalty may involve a loss of liberty would significantly increase its burden. We conclude, therefore, that the due process clause does not require that all criminal defendants be provided with a PSI at sentencing.

II

In addition to the liberty interest inherently at stake during sentencing, the amicus claims that the defendant has a special liberty interest in a PSI created by Practice Book § 910. Relying on Hewitt v. Helms, supra, 459 U.S. 472, the amicus argues that § 910, by virtue of its mandatory language, gives rise to a protected liberty interest in a PSI. We disagree.

In Hewitt v. Helms, supra, 459 U.S. 471-72, the United States Supreme Court held that while there is not an inherent constitutionally protected liberty interest in remaining free from administrative segregation while incarcerated, a state can create such an interest through prison regulations, which explicitly require the satisfaction of certain substantive predicates prior to the use of administrative segregation and, as a result, remove discretion from official decision making in that area. The United States Supreme Court, however, recently has clarified the federal constitutional approach to determining when a state created liberty interest arises, where one does not otherwise exist. See Sandin v. Conner, supra, 115 S. Ct. 2300 n.5; see also Mitchell v. Dupnik, 67 F.3d 216, 221 (9th Cir. 1995) (“[United States] Supreme Court has since adopted a new approach to determining when prison regulations create a liberty interest”). Our analysis, therefore, is controlled by Sandin.

In Sandin v. Conner, supra, 115 S. Ct. 2295, the defendant had been incarcerated at a maximum security prison. During a strip search he became abusive to prison officials and, as a result, was charged with misconduct. Id., 2296. After a hearing before an adjustment committee, he was found guilty and sentenced to disciplinary segregation. Id. Subsequently the defendant sought administrative review of the committee’s decision and brought suit in the United States District Court, claiming that he had been deprived of his liberty interest in remaining free from administrative segregation without procedural due process because he was not allowed to present witnesses at the hearing. Id. The District Court granted the prison officials’ motion for summary judgment and the defendant appealed to the United States Court of Appeals for the Ninth Circuit. See Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993). The Court of Appeals reversed the judgment of the District Court, concluding that a prison regulation requiring officials to find guilt when a charge of misconduct is supported by substantial evidence created a nondiscretionary duty that, by negative implication, also required that they not find guilt unless a charge is supported by substantial evidence. Sandin v. Conner, supra, 2296-97. Relying on Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and its progeny, the Court of Appeals held that this nondiscretionary duty created a liberty interest, of which the defendant could not be deprived without due process. Sandin v. Conner, supra, 2296-97.

Upon review by the United States Supreme Court, however, that court held that the defendant’s segregation was not the type of deprivation in which a state might conceivably create a liberty interest, and reversed the judgment of the Court of Appeals. Id., 2301. The United States Supreme Court began its analysis by summarizing and criticizing the attenuated development of the Hewitt approach. “Shortly after Meachum [v. Fano, supra, 427 U.S. 226-27], the Court embarked on a different approach to defining state-created liberty interests. Because dictum in Meachum distinguished Wolff by focusing on whether state action was mandatory or discretionary, the Court in later cases laid ever greater emphasis on this somewhat mechanical dichotomy. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), foreshadowed the methodology that would come to full fruition in Hewitt v. Helms, [supra, 459 U.S. 460], . . . The Court made explicit in Hewitt what was implicit in Greenholtz. . . . Instead of looking to whether the State created an interest of real substance comparable to the good time credit scheme of Wolff, the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used language of an unmistakably mandatory character such that the incursion on liberty would not occur absent specified substantive predicates. Id., [471-72]. Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest. ... As this methodology took hold, no longer did inmates need to rely on a showing that they had suffered a grievous loss of liberty retained even after sentenced to terms of imprisonment. . . . For the Court had ceased to examine the nature of the interest with respect to interests allegedly created by the State. ... By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges.” (Citations omitted; internal quotation marks omitted.) Sandin v. Conner, supra, 115 S. Ct. 2298-99.

Following this summary, the court stated that “[i]n light of the above discussion, we believe that the search for a negative implication from mandatoiy language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” (Citations omitted.) Sandin v. Conner, supra, 115 S. Ct. 2300. The test in Hewitt, which the court characterized as a determination of “whether the State [has] gone beyond issuing mere procedural guidelines and [has] used ‘language of an unmistakably mandatory character’ such that the incursion on liberty would not occur ‘absent specified substantive predicates’ id., 2298; failed to emphasize the nature of the incursion. Id. For this reason, the court modified the Hewitt test to require that the deprivation be of a significant and atypical nature. Id., 2300.

The amicus argues that Practice Book § 910 satisfies the modified Hewitt test because it removes the trial court’s discretion about whether to order a PSI, and thereby limits official discretion in decision making affecting a fundamental liberty interest. We disagree. Although § 910 contains mandatory language requiring a court to order a PSI when a person is convicted of a noncapital felony and, therefore, removes the court’s discretion with respect to ordering a PSI, it does not confine the comb’s discretion with respect to the only liberty interest at stake, namely, the defendant’s interest in receiving the shortest possible sentence. We conclude, therefore, that § 910 does not create a protected liberty interest in a PSI.

Ordinarily, we would, following our conclusion that the Appellate Court improperly reversed the trial court’s judgment, remand the case to the Appellate Court for a determination of the other claims originally raised by the defendant in that court. In this case, however, the defendant has fled the jurisdiction and has, therefore, disentitled himself to the benefit of appellate review of his conviction. See State v. Leslie, 166 Conn. 393, 394, 349 A.2d 843 (1974); State v. Kennedy, 13 Conn. App. 576, 578, 538 A.2d 707, cert. denied, 207 Conn. 811, 541 A.2d 1240 (1988).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion PETERS, C. J., and BORDEN and KATZ, Js., concurred.

BERDON, J.,

concurring. Although I concur in the result, on the facts of this case, I would not reach the important constitutional issue of whether a criminal defendant has a right to a presentence investigation report at sentencing. Because sentencing is a critical stage of a criminal proceeding; Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); a criminal defendant “has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process” as long as it is sanctioned by law. Id. It is important, not only from the perspective of the defendant whose liberty is at stake, but also from the vantage point of the state, which represents the public’s interest, that the sentencing judge have before him or her all the information regarding the defendant that is necessary to make an informed decision. Additionally, it is important that this information be gathered and evaluated by a professionally trained probation officer who is detached from the advocacy of both the defendant and the state.

Despite the fact that the court’s failure to order and consider a presentence investigation report at sentencing was improper, I find it unnecessary to reach the constitutional issue in this case because this error was harmless beyond a reasonable doubt. Not only was the sentencing court well informed as to the circumstances of the defendant’s immediate offense because it had presided over the trial itself, but the court also had access to a comprehensive presentence report that was prepared one year earlier concerning the defendant’s criminal record and social history. That information, which was relatively current, adequately substituted for the presentence investigation report that the court should have ordered in this case.

Accordingly, I concur in the result.

       Sentencing courts axe instructed to order a PSI in certain circumstances. General Statutes § 54-91a provides in relevant part: “(a) No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if (1) the defendant is so convicted for the first time in this state or (2) his record, as shown by the prosecuting official, discloses a conviction obtained prior to five years from the finding of guilty in the present prosecution; but any court may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense other than a capital felony.
      “(b) A defendant who is convicted of a crime and is not eligible for sentence review pursuant to section 51-195 may, with the consent of the sentencing judge and the prosecuting official, waive the presentence investigation.”
      Practice Book § 910 (a) provides: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. The judicial authority may, in his discretion, order a presentence investigation for a defendant convicted of any crime or offense.
      “A defendant who is convicted of a crime and is not eligible for sentence review pursuant to Gen. Stat., § 51-195 may, with the consent of the sentencing judge and the prosecuting authority, waive the presentence investigation.”

       We granted the state’s petition for certification limited to the following questions: (1) “Whether criminal defendants have a federal constitutional right to a presentence investigation report at sentencing?” (2) “Whether the defendant waived any right to a presentence investigation report?” and (3) “Whether the defendant suffered harm from the lack of a presentence investigation report?” State v. Patterson, 234 Conn. 914, 660 A.2d 357 (1995).

       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 § 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.”

       Before the Appellate Court, the state argued that the defendant had not preserved any of his claims of procedural error because he had neither raised them at trial nor claimed to be entitled to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. State v. Patterson, supra, 37 Conn. App. 816-17. The defendant argued that he had preserved his claim regarding the lack of a PSI by filing a motion to vacate the sentence. Id., 817. The Appellate Court assumed, without deciding, that the defendant had preserved his claim that the trial court improperly had failed to order a PSI in violation of Practice Book § 910. Id.

       The Appellate Court declined to address the same claim under the state constitution. “ ‘Due process claims under the federal and state constitutions can be treated together because they impose similar constitutional limitations. Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). The defendant offers no argument for separate treatment of his state constitutional claim. Accordingly, we will consider only his federal constitutional claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).’ State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990).” State v. Patterson, supra, 37 Conn. App. 818 n.15.

       The Appellate Court’s decision was based solely on the defendant’s liberty interest at sentencing. The amicus argues, however, in what is essentially an alternative ground for affirmance, that Practice Book § 910 creates a constitutionally protected liberty interest in a PSI, where one did not otherwise exist. Furthermore, the amicus contends that even if we were to conclude that the defendant has a liberty interest in a PSI, in the present case, he was deprived of that interest without due process of law. See
        Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Because we conclude that the defendant does not have a protected liberty interest in a PSI, we need not determine what due process rights would have resulted had such a liberty interest been found to exist. See Asherman v. Meachum, 213 Conn. 38, 46, 566 A.2d 663 (1989).

       Because we conclude that the defendant does not have a constitutional right to a PSI, we need not address the state’s remaining claims, which assume the existence of that right.

       Even if we were to conclude that the defendant’s right to due process at sentencing includes the right to a PSI, that right could not be limited to convicted noncapital felons as dictated by Practice Book § 910. Cf. Sandin v. Conner, supra, 115 S. Ct. 2303 (Ginsburg, X, dissenting). Because the Appellate Court’s decision was rooted in the defendant’s right to counsel at sentencing, the due process rights emanating therefrom necessarily would have to extend to all criminal proceedings to which the right to counsel attaches, which include prosecutions for any crime, including a misdemeanor, for which the penalty may involve the loss of liberty. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).

       We have found no other jurisdiction in which a court has concluded that a criminal defendant has a federal constitutional right to a PSI during the sentencing stage. On the contrary, numerous courts have held that the defendant does not have a constitutional right to a PSI. See, e.g., Katz v. King, 627 F.2d 568, 576 (1st Cir. 1980) (failure to use PSI is not of constitutional dimensions); Howard v. Maggio, 540 F.2d 1280, 1282 (5th Cir. 1976) (PSI is aid to counsel, not right of accused); Segura v. Patterson, 402 F.2d 249, 252 (10th Cir. 1968), rev’d on other grounds, 403 U.S. 946, 91 S. Ct. 2280, 29 L. Ed. 2d 856 (1971) (right to PSI has not risen to dignity of constitutional requirement); Elswick v. Holland, 623 F. Sup. 498, 502 (S.D. W. Va. 1985), dismissed, 782 F.2d 1034 (4th Cir. 1986) (no constitutional right to PSI); Lawson v. Riddle, 401 F. Sup. 410, 412 (W.D. Va. 1975) (no constitutional right to PSI).

       In the present case, when asked if he would like to be heard on the sentence, defense counsel requested leniency, citing numerous mitigating factors.

       The state concedes that a PSI may be an important factor in achieving a particularized sentence in some cases. The value of a PSI in achieving a fair and accurate sentence, however, is not a foregone conclusion. See P. Pope, “How Unreliable Factfinding Can Undermine Sentencing Guidelines,” 25 Yale L.J. 1258,1275 (1986) (PSI often omits information, contains erroneous information or is slanted to favor state). Even if we were to assume that the use of a PSI may lead to the optimal results at sentencing, that does not, by itself, make it the constitutionally required floor of due process.

       Relying on Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 82 L. Ed. 43 (1937), the amicus contends that a PSI is necessary because a sentencing judge is required, in the interest of individualized sentencing, to consider more than “ ‘the particular acts by which the crime was committed.’ ” In Ashe, the United States Supreme Court stated that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” (Emphasis added.) Id. Whether a court is constitutionally required to take into account certain factors when imposing a sentence, however, is a different question from whether a defendant has a constitutional right to a PSI.

       The contents of a PSI axe prescribed by Practice Book § 911, which provides in relevant part: “Whenever an investigation is required ... the probation officer shall promptly inquire into the attitude of the complainant or the victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant . . . [including] the circumstances of the offense and any damages suffered by the victim . . . .”

       In its brief the amicus relied solely on the Hewitt test and offered no analysis of its claim under Sandin. At oral argument, however, the amicus attempted to distinguish Sandin as the United States Supreme Court’s response to the federal courts’ inundation with habeas corpus actions from prisoners who have searched prison regulations for mandatory language without regard to the deprivation involved. We disagree. Although the court in Sandin addressed these concerns, it emphatically criticized and abandoned the Hewitt approach on which the amicus relies, and did not limit its modification of the Hewitt analysis to prison regulation cases, as suggested by the amicus. Sandin v. Conner, supra, 115 S. Ct. 2300 n.5. Indeed, the United States Supreme Court has applied the Savdin-Hewitt analysis only within the context of prisoner claims; cf. id., 2300 (interests will be generally limited to freedom from restraint); Hewitt v. Helms, supra, 459 U.S. 472 (confinement to administrative segregation); Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (denial of parole); Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (revoking good time credits that reduced sentence); and thus has not decided whether it is also properly applied during the sentencing process. We assume, without deciding, that the Sandin-IIewitt analysis will apply in the sentencing context and, therefore, that a statute or rule containing mandatory language, such as Practice Book § 910, may give rise to aprotected liberty interest, during the sentencing process that otherwise would not exist.

       A finding of guilt was punishable by disciplinary segregation. Sandin v. Conner, supra, 115 S. Ct. 2296 n.1.

       In Wolff v. McDonnell, supra, 418 U.S. 558, the United States Supreme Court had concluded that prisoners do not have an inherent liberty interest in a good time credit scheme, but once the prison establishes regulations that provide that prisoners can lose good time credits only if they are guilty of serious misconduct, “the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.”

       Liberty interests are generally divided into two categories: (1) the freedom of action without physical restraint; and (2) the freedom of choice and action to engage in certain types of activities, whether constitutionally protected or not. J. Nowak, R. Rotunda & J. Young, Constitutional Law (2d Ed. 1983) p. 533.


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    KAREN DELAHUNTY v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY ET AL.
    (15240)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.

      Argued January 18
    officially released April 9, 1996

      John R. Williams, for the appellant (plaintiff).

      Barry S. Zitser, for the appellee (defendant Patrick J. Delahunty, Jr.).
   KATZ, J.

This appeal raises the issue of whether the doctrine of res judicata bars a party to a dissolution action from bringing a postdissolution action against a former spouse for damages incurred as a result of conduct that had occurred during the marriage. We conclude that, in this context, the policy considerations commonly advanced to justify the doctrine of res judicata are not compelling and that the application of that doctrine to bar the subsequent action would fail to achieve the doctrine’s objectives.

The following undisputed facts are pertinent to this appeal. In 1988, the plaintiff, Karen Delahunty, instituted an action against the defendant, Patrick J. Delahunty, Jr., to dissolve their marriage. On January 4,1990, Hon. John D. Brennan, state trial referee, rendered judgment dissolving the marriage and delivered an oral decision. Thereafter, on January 31, 1992, the plaintiff filed an eight count complaint against the defendant, Vincent A. Clements, Jr., an insurance agent, and Massachusetts Mutual Life Insurance Company (Massachusetts Mutual), in connection with a $100,000 life insurance policy insuring her former husband, of which she was both the owner and the beneficiary.

The complaint alleged the following facts. On July 22, 1987, the defendant notified Massachusetts Mutual of his desire to surrender the life insurance policy owned by his wife. Massachusetts Mutual thereafter forwarded the necessary forms to the defendant to effect the surrender and advised him of the relative merits of the surrender. The defendant or a third party acting under his direction forged the plaintiffs signature on the required forms. Following its cancellation of the policy, Massachusetts Mutual forwarded to the defendant at his office a check in the amount of its cash surrender value, $7379.54, payable to the plaintiff. Thereafter, the defendant, acting alone or with Clements, forged the plaintiffs endorsement signature on the check and made the check payable to Guardian Life Insurance Company for the puipose of purchasing a life insurance policy to be owned by and for the benefit of the defendant. The aforementioned conduct occurred without the plaintiffs knowledge or authorization. The plaintiff further alleged that Clements, Massachusetts Mutual and the defendant fraudulently concealed those events from her and that she first learned of them in June, 1989, when she received a letter from a district manager at Massachusetts Mutual indicating that Massachusetts Mutual had surrendered the policy on September 2, 1987.

On the basis of those allegations, the plaintiff claimed that the defendant had engaged in fraudulent conduct that caused her mental and emotional pain, anguish and distress, and had knowingly, wilfully, intentionally, wantonly, maliciously and tortiously interfered with her contractual and beneficial economic relationship with Massachusetts Mutual. The plaintiff sought compensatory damages, punitive damages, treble damages for theft pursuant to General Statutes § 52-564 and double damages for forgery pursuant to General Statutes § 52~565.

In his response to the complaint, the defendant claimed a lack of recollection sufficient to admit or deny some of the allegations, although he also denied any wrongdoing. Additionally, he asserted nine special defenses, including the claim that the plaintiffs action was barred by the doctrines of res judicata and collateral estoppel, all of which the plaintiff denied. Thereafter, the defendant moved for summary judgment claiming that, because in the prior dissolution action the plaintiff had claimed ownership of the proceeds of the insurance policy and had offered evidence regarding the circumstances under which the funds had come into the defendant’s possession, the present action was barred by res judicata. In support thereof, the defendant submitted portions of the trial transcript from the dissolution proceedings, a transcript of the oral decision in that action and a memorandum of law.

The trial court, Hadden, J., granted the defendant’s motion for summary judgment on the basis of the following findings: the plaintiff had made a claim for the insurance policy funds in the dissolution action, asserting therein that the defendant had perpetrated a fraud; the defendant had been cross-examined in the dissolution action regarding the details of the transaction involving the insurance policy, including the validity of the negotiation of the check; the plaintiff had presented therein the actual check from Massachusetts Mutual to establish that the signature had been forged; the plaintiff had claimed that she had never received the proceeds of the check; and the trial court in the dissolution proceeding had determined responsibility for the breakdown of the marriage and had apportioned the marital estate based upon “all the evidence.”

Against those findings the trial court applied the “transactional” test of § 24 of the Restatement (Second) of Judgments, in accordance with Orselet v. DeMatteo, 206 Conn. 542, 544, 539 A.2d 95 (1988), to decide whether the present action was barred by the doctrine of res judicata. The court recognized that courts in other jurisdictions that use the “transactional” test had haired actions similar to the one before it even when the plaintiff had not made a claim for the insurance policy funds in the dissolution action. The court specifically noted, however, that its decision did not rely on those cases because “in this case the plaintiff did in fact make such a claim.” The trial court then concluded that the dissolution proceeding was the proper forum for all causes of action arising out of the defendant’s alleged misconduct and, consequently, that the tort action was barred by the doctrine of res judicata. Accordingly, the trial court granted the defendant’s motion for summary judgment. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the plaintiff first argues that the trial court’s determination that this matter was governed by the doctrine of res judicata was improper. The present action is a tort claim in which the plaintiff seeks a jury trial at which she could be awarded compensatory damages for emotional distress and economic loss, punitive damages for the defendant’s intentional fraudulent conduct and statutory double and treble damages. She argues that she had no right to a jury trial in the dissolution action and, furthermore, that the court in the dissolution action sat as a court of equity without the authority to award the remedies she now seeks. The defendant responds that, even if we were to agree with the plaintiff that the trial court improperly relied on res judicata to render summary judgment in his favor, we should nevertheless apply the doctrine of collateral estoppel to affirm the judgment. The plaintiff argues that collateral estoppel does not apply to bar the tort action because, although the check itself had been presented in the dissolution action as evidence relating to the pertinent insurance policy, and the plaintiff had attempted to elicit the defendant’s admission to the forgery on cross-examination, the issue of the fraudulent endorsement was not part of the trial court’s decision and was not necessary to that decision.

We agree with the plaintiff that the trial court improperly invoked the doctrine of res judicata in this case. We also agree with the plaintiff that the trial court in the dissolution action did not make the necessary findings of fraudulent conduct by the defendant that would collaterally estop either party in the present action from litigating that issue and the issue of any damages should that become necessary. We will analyze separately the applicability of each of these two doctrines in the circumstances of this case. We recognize, however, that “[cjlaim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985). Scalzo v. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992).” (Internal quotation marks omitted.) Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 267, 659 A.2d 148 (1995).

I

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), [supra] §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3.” State v. Aillon, 189 Conn. 416, 423-24, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a ‘transaction,’ and what groupings constitute a ‘series,’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. . . . Orselet v. DeMatteo, [supra, 206 Conn. 545-46]; see Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986); see also Nevada v. United States, 463 U.S. 110, 130-31 n.12, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983); 1 Restatement (Second), [supra, § 24]. In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. See, e.g., Nevada v. United States, supra, 131-34; Capraro v. Tilcon Gammino, Inc., 751 F.2d 56, 57 (1st Cir. 1985).” (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 189-90, 629 A.2d 1116 (1993).

“We recognize that the mere explication of the doctrine of claim preclusion does not resolve all difficulties which may appear at the point of application. As was stated long ago, the law of estoppel by judgment is well settled, the only difficulty being in its application to the facts. Pelham Hall Co. v. Carney, 27 F. Sup. 388, 390 (D. Mass. 1939). The difficulty has always been in determining what matters are precluded by the former adjudication. ... In applying the rule of claim preclusion, the critical question is how broad a definition to give to the term ‘same claim’ or ‘cause of action.’ The broader the definition, the broader the scope of preclusion. James & Hazard, [supra] § 11.7, p. 540; see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 327, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971).” (Internal quotation marks omitted.) State v. Ellis, supra, 197 Conn. 463-64.

Finally, we recognize that a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close; 1 Restatement (Second), supra, § 24, p. 199; and the competing interest of the plaintiff in the vindication of a just claim. We have stated that res judicata “should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. . . . We review the doctrine of res judicata to emphasize that its proposes must inform the decision to foreclose future litigation. The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citations omitted; internal quotation marks omitted.) State v. Ellis, supra, 197 Conn. 465-67.

We are guided by these principles in deciding whether a party can bring a postdissolution action claiming damages for misconduct that had occurred during the marriage. We conclude that the policy considerations commonly advanced to justify the doctrine of res judicata are not compelling in this context and that it would be an inappropriate application of the principles of res judicata to require tort actions based on claims arising between married persons to be litigated in a dissolution proceeding. Furthermore, because there are significant differences between a tort action and a dissolution action, the maintenance of a separate tort action will not subject the courts and the defendant to the type of piecemeal litigation that the doctrine was intended to prevent.

A tort action, the purpose of which is to redress a legal wrong by an award of damages, is not based on the same underlying claim as an action for dissolution, the purpose of which is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support, and to divide the marital estate. Although in a dissolution action, the trial court must consider the conduct of the parties, the judgment in a dissolution action does not provide direct compensation as such to a party for injuries suffered during the marriage. Alimony is intended to provide economic support for a dependent spouse, and the division of marital property is intended to recognize and equitably recompense the contributions of the parties to the marital partnership. Tori; actions and dissolution actions lack the duplication that the doctrine of res judicata was aimed at preventing. Additionally, a dissolution action is equitable in nature and requires a trial to the court, while a civil trial of a claim for damages based upon conduct occurring during the marriage is legal in nature, may involve the right to punitive damages and may, as in this case, involve the right to a jury trial. Furthermore, a dissolution action generally will involve few witnesses, while a civil action may involve numerous witnesses as well as other parties, such as insurance carriers.

Consideration of the policies underlying the doctrine of res judicata persuades us that, although unsatisfactory consequences may flow from a decision rejecting its application, recognizing the doctrine in this context would create greater problems than it would solve. If claim preclusion were applied to a postdissolution tort action, there would be a strong incentive to parties in a dissolution action to raise and litigate every marital grievance that might later form the basis of a possible tort action, for fear of forfeiting the ability to do so later in the form of a tort action. In other words, if we were to hold that claim preclusion bars the assertion of a postdissolution tort action based on conduct that had occurred during the marriage on the ground that it could have been raised during the dissolution action, the clear message to lawyers and parties would be to raise in the dissolution action all such claims for fear of forfeiting any future cause of action. This, in turn, would tend to make contested dissolution actions even lengthier and more acrimonious and expensive than they already are. Such a decision by this court could also tend to discourage settlement of dissolution actions, because it would send the same message to the parties. All this, in turn, would further harm families, including the children, who are already experiencing extraordinary emotional pain from the dissolution actions, and would be contrary to our established policy to foster amicable marital dissolutions whenever possible.

The concerns expressed in this opinion are also reflected in the jurisprudence of several of our sister states that have wrestled with this issue. In Stuart v. Stuart, 143 Wis. 2d 347, 349, 421 N.W.2d 505 (1988), the Wisconsin Supreme Court considered whether public policy requires that one party, in that case the wife, join with the dissolution action her tort action against her husband for assault, battery, and intentional infliction of mental distress arising from alleged incidents occurring during the marriage. In affirming the decision by the Wisconsin Court of Appeals that joinder of an interspousal tort action with the dissolution action was not required, the Wisconsin Supreme Court relied on much of the lower court’s analysis. “If an abused spouse cannot commence a tort action subsequent to a divorce, the spouse will be forced to elect between three equally unacceptable alternatives: (1) Commence a tort action during the marriage and possibly endure additional abuse; (2) join a tort claim in a divorce action and waive the right to a jury trial on the tort claim; or (3) commence an action to terminate the marriage, forego the tort claim, and surrender the right to recover damages arising from spousal abuse. To enforce such an election would require an abused spouse to surrender both the constitutional right to a jury trial and valuable property rights to preserve his or her well-being. This the law will not do. Although joinder is permissible, the administration of justice is better served by keeping tort and divorce actions separate. . . . Divorce actions will become unduly complicated if tort claims must be litigated in the same action. A divorce action is equitable in nature and involves a trial to the court. On the other hand, a trial of a tort claim is one at law and may involve, as in this case, a request for a jury trial. Resolution of tort claims may necessarily involve numerous witnesses and other parties such as joint tortfeasors and insurance carriers whose interests are at stake. Consequently, requiring joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce and result in such adverse consequences as delayed child custody and support determinations. The legislature did not intend such a result in enacting the divorce code.” Id., 352-53, citing Stuart v. Stuart, 140 Wis. 2d 455, 466-67, 410 N.W.2d 632 (Wis. App. 1987).

In Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988), the Idaho Supreme Court cited Stuart v. Stuart, supra, 143 Wis. 2d 347, with approval in deciding a similar question. In Nash, the parties had entered into a stipulation relating to the disposition of their property and the court entered a decree of divorce in accordance with the stipulation in March, 1985. Nash v. Overholser, supra, 461. In January, 1986, the plaintiff wife filed an action against her former husband alleging five instances of assault and battery that had occurred during the marriage. Id. Four of the counts were barred by the statute of limitations, but the fifth count, which was not barred, was “the most significant of the instances of abuse.” Id. The defendant moved for summary judgment on the ground that all five counts were barred by the doctrine of res judicata because the allegations of assault and battery could have been addressed by the court that had adjudicated the dissolution. Id., 461-62. The trial court denied the motion, stating that the dissolution action was not the proper proceeding in which to raise the tort claims. Id., 462. The Supreme Court of Idaho affirmed the judgment of the trial court concluding that, although Idaho trial courts have the jurisdiction while handling dissolution proceedings to address and resolve issues of intentional wrongful conduct that occurred during the course of a marriage, because of considerations unique to cases such as Nash, a narrow exception to that court’s traditional interpretation of res judicata was warranted. Id., 462-63. Citing to the same three equally unacceptable alternatives to which the wife would be subjected if it did not create an exception; Stuart v. Stuart, supra, 143 Wis. 2d 352; the Idaho Supreme Court reasoned that divorce proceedings should not serve as a catalyst for additional abuse. Nash v. Overholser, supra, 462. Finally, the court noted that there is no right to a jury in dissolution proceedings and concluded that “[a] former spouse should not be required to forgo [the] right to [a] jury trial simply to satisfy the doctrine of res judicata, particularly [when] the objectives of that doctrine do not compel such a result.” Id.

In Nelson v. Jones, 787 P.2d 1031 (Alaska 1990), the Alaska Supreme Court decided that the doctrine of res judicata did not bar a postdissolution action by a husband for abuse of process, malicious prosecution and defamation based upon his former wife’s allegations of sexual abuse of their child although the “causes of action . . . [arose] out of some of the transactional events of the divorce.” (Internal quotation marks omitted.) Id., 1034. Relying on Stuart and Nash, the court concluded that it would be an inappropriate construction of the principles of res judicata to require tort claims between spouses to be litigated in a dissolution proceeding. Id., 1034-35.

We recognize the need for finality between parties in a divorce proceeding. They should, if at all possible, be able to terminate their relationships. The purpose of the doctrine of res judicata, however, must inform the decision to foreclose future litigation. We are convinced that, as a practical matter, applying the doctrine of res judicata in this context would unduly complicate the dissolution action and consequently unnecessarily delay essential child custody and support determinations. Although our decision leaves open the potential for the disgruntled marital litigant to continue to fight the marital battles on the tort battleground, it also enables parties to resolve their dissolution action in less time and with far less acrimony. With these considerations in mind and borrowing from the experience of other jurisdictions, we conclude that the doctrine of res judicata does not require all issues between spouses to be litigated in the dissolution proceeding. Accordingly, we hold that the doctrine of res judicata does not apply to this tort action and, to the extent that the trial court relied on that doctrine to grant the defendant’s motion for summary judgment foreclosing the plaintiff from litigating her claim that the defendant had perpetrated a fraud in connection with the cancellation of an insurance policy during their marriage, that reliance was improper.

II

The defendant claims alternatively that, even if we conclude that the trial court improperly rendered summary judgment in his favor because res judicata does not apply to bar the separate tort claim, we should nevertheless apply the doctrine of collateral estoppel to preclude relitigation of an issue raised and decided in the dissolution action. Specifically, the defendant argues that the plaintiff raised and litigated the issue of his alleged fraudulent conduct involving the insurance policy in the dissolution proceeding and that the trial court in that action made certain findings that demonstrated that it had considered that conduct in its property award. We are unpersuaded.

The defendant relies on the following facts to support his claim. The plaintiff had complained during the dissolution action that the defendant had wrongfully received $7379.54 from a life insurance policy that had insured his life for $100,000 and for which she had been named the beneficiary. In the distribution of marital assets, the plaintiff received assets worth $1,178,131, as compared to the defendant’s award of assets worth $1,103,593. Those figures were intended to reflect the trial court’s assessment of fault for the marital breakdown that had been determined on the basis of “all of the evidence.” Included in the assets awarded to the plaintiff was the $40,000 cash surrender value of the defendant’s new life insurance policy, which had been purchased, in part, with the money received from the policy that is the subject of this litigation. Additionally, the court ordered the defendant to pay to the plaintiff $440 per week in alimony for a nonmodifiable term of nine years, and to maintain life insurance in the amount of $206,000, with the plaintiff as the irrevocable beneficiary, during that nine year period. Although the defendant could reduce the face amount of the policy annually to reflect alimony payments made, at no time could the face value be less than the total amount of alimony he still owed. On the basis of those facts, the defendant argues that the doctrine of issue preclusion applies because the court’s orders in the dissolution action indicated that the court had considered the purported fraudulent endorsement in its property award.

The plaintiff argues in response that, although collateral estoppel does apply in theory, the trial court in the dissolution proceeding did not make findings that would support its application. Although evidence had been presented in the dissolution action regarding the alleged forgery and theft, the trial court never mentioned the fraudulent endorsement issue in its lengthy decision. Consequently, the plaintiff asserts that the issue was not a part of the decision and was not necessary to that decision. Moreover, the plaintiff points out that the trial court’s finding that the defendant was “ever so slightly” more at fault than the plaintiff for the marital breakup, which contributed to the 54 percent to 46 percent division of the marital property, would, if anything, have worked in her favor to preclude the defendant from contesting the fraudulent endorsement issue, rather than to contribute to a judgment in the defendant’s favor. We agree with the plaintiff.

“For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), [supra, § 27, comment (d)]. An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, supra, (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. 1 Restatement (Second), [supra, § 27, comment (h)].” (Citations omitted; emphasis in original; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993).

To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case. In the judgment of the dissolution action between the parties before us, the trial court did not make any definitive findings of fact that would demonstrate resolution of any issue relating to the fraudulent endorsement. Consequently, the issue of the fraudulent endorsement was not “actually litigated and necessarily determined” in the dissolution action. In the absence of the necessary predicate for a finding of collateral estoppel, we, therefore, need not decide the extent to which this doctrine is applicable to bar relitigation of a claim of tortious misconduct that had been fully litigated in an earlier dissolution action.

We note that courts in other states have considered whether parties can be collaterally estopped from litigating an issue in a subsequent civil action for damages based on conduct that had occurred during their marriage when that issue had already been determined in a prior dissolution action. See, e.g., McCoy v. Cooke, 165 Mich. App. 662, 667, 419 N.W.2d 44, appeal denied, 430 Mich. 897, 494 N.W.2d 784 (1988) (because trial court in dissolution action had determined that defendant had battered plaintiff during their marriage, collateral estoppel could be applied properly to prevent defendant from denying that assaults had occurred); Nelson v. Jones, supra, 787 P.2d 1035-36 (collateral estoppel was properly applied to preclude plaintiff husband from litigating issue of sexual abuse of his child in civil action against former wife for malicious prosecution, defamation and abuse of process because issue of sexual abuse had been litigated in divorce proceeding and, based upon consideration of custody stipulation between parents and testimony of expert witnesses, trial court in dissolution proceeding had explicitly determined issue adversely to him). It may be that, relitigation entirely but will affect the amount of damages to be recovered. We leave these issues to be decided at a time when they are properly before us, at which time we will be required to balance many of the same policies that we have discussed, as well as other policies that may be implicated particularly by the doctrine of collateral estoppel.

This case has required us to decide whether the interest in the finality of judgments outweighs the other considerations that the plaintiff and courts in other states have expressed. Rather than complicate the dissolution action, unnecessarily delay crucial child custody and support determinations, and perhaps endanger lives in extreme cases, we will not require all claims and issues between married persons to be litigated in a dissolution proceeding.

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

In this opinion the other justices concurred.

       Although our trial courts have had to confront this question in its various permutations; see, e.g., Hutchings v. Hutchings, Superior Court, judicial district of Litchfield, Docket No. 054449S (February 22, 1993) (8 Conn. L. Rptr. 433); this case presents the first opportunity for this court to decide the issue.

       This oral decision was transcribed into a sixty-three page memorandum of decision.

       For ease of discussion, hereinafter we will refer to Patrick J. Delahunty, Jr., the plaintiffs former husband, as the defendant, and we will refer to the other defendants by name.

       Because the trial court rendered summary judgment in favor of the defendant only, Massachusetts Mutual and Clements have no role in this appeal.

       General Statutes § 52-564 provides: “Treble damages fortheft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 52-565 provides: “Double damages for forgery. Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby.”

       The transactional test is discussed more fully in part I of this opinion.

       See, e.g., Smith v. Smith, 530 So. 2d 1389 (Ala. 1988); Partlow v. Kolupa, 122 App. Div. 2d 509, 504 N.Y.S.2d 870 (1986), aff'd, 69 N.Y.2d 927, 509 N.E.2d 327, 516 N.Y.S.2d 632 (1987); Kemp v. Kemp, 723 S.W.2d 138 (Tenn. App. 1986).

       In light of the lengthy delay between the dissolution action and the commencement of the present action, neither party has requested that the trial court in the dissolution action articulate its findings relating to the alleged fraud.

       The standard of review of a trial court decision granting a motion for summary judgment is well settled and is not challenged in this case. Pursuant to Practice Book § 384, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The party seeking summary judgment “ ‘has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law’ D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book § 381. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

        Additionally, the plaintiff does not challenge the trial court’s ability to grant a motion for summary judgment when a party’s claim is barred by res judicata. See Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363, 511 A.2d 333 (1986). Her challenge is to the application of the doctrine in this case.
      Furthermore, the parties do not dispute the right of one spouse to sue his or her spouse or former spouse. See Dzenutis v. Dzenutis, 200 Conn. 290, 294, 512 A.2d 130 (1986) (rule of spousal immunity has been abolished in Connecticut); Silverman v. Silverman, 145 Conn. 663, 666, 145 A.2d 826 (1958).

       As part of a dissolution action, the trial court may assign to either party all or any part of the estate of the other and may order either to pay alimony to the other. General Statutes §§ 46b-81 (a) and 46b-82. The purpose of property assignment is to divide equitably the ownership of the parties’ property; McPhee v. McPhee, 186 Conn. 167, 170-71, 440 A.2d 274 (1982); while an award of periodic and lump sum alimony is based primarily upon a continuing duty to support. Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674 (1973); see Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981); Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974); 2 W. Nelson, Divorce and Annulment (2d Ed. Rev. 1961) § 14.06. In fixing the nature and value of the property assigned, and in determining whether alimony will be awarded, and the duration and amount of the award, the court “shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate” and needs of each of the parties. General Statutes §§ 46b-81 (c) and 46b-82. “With respect to property assignment the trial court must also consider the liabilities of the parties, ‘the opportunity of each for future acquisition of capital assets and income . . . [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective eslales.’ General Statutes § 46b-81 (c).” McPhee v. McPhee, supra, 171. Finally, the court must make orders of custody; General Statutes § 46b-56 et seq.; and child support. General Statutes §§ 46b-84 and 46b-215a. The custody determination is guided by the best interests of the child. See Gallo v. Gallo, 184 Conn. 36, 42, 440 A.2d 782 (1981). Child support is based on the duty of the parents to maintain their minor children and is determined by a variety of factors including, but not limited to, the needs of the child and level of income of the parents. See the criteria for such awards established in General Statutes §§ 46b-84, 46b-86, 46b-130,46b-171, 46b-172, 46b-198, 46b-215 and 46b-215b.

       Although we recognize that some states have applied the doctrine of res judicata to bar a postdissolution tort action; see footnote 8; we are not persuaded by the reasoning of those decisions.

       The concurring opinion in Nash v. Overholser, supra, 114 Idaho 465, stated that the case would be more appropriately disposed of by holding that the assault and battery was not part of the same transaction that had been involved in the dissolution action. Relying on the “pragmatic” approach discussed in § 24 of the Restatement (Second), supra, Justice Johnson, with whom Justices Bistíine and Huntley concurred, stated that “pragmatically, the assault and battery did not constitute part of the transaction out of which the divorce action arose. . . . The transaction involved in the divorce action was the marriage. The transaction involved in the present action was the assault and battery. They are not part of the same transaction according to the factual grouping provided for in the Second Restatement . . . .” Nash v. Overholser, supra, 465.

       Other cases in which courts have concluded that interspousal tort actions should not be litigated in divorce proceedings include Windaruer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971), and Lord v. Shaw, 665 P.2d 1288 (Utah 1983).

       “They will have enough problems with the care, custody and support of children without having wounds reopened after the marriage is terminated regarding prior existing claims.” Stuart v. Stuart, supra, 143 Wis. 2d 357 (Steinmetz, J., concurring).

       Although our trial courts have had to confront this question in its various