text:
    JEAN ZEOLI v. NORWALK HOSPITAL ET AL.
    (SC 16458)
    Sullivan, C. X, and Borden, Norcott, Katz and Verteieuille, Js.
    Argued March 20
    officially released August 14, 2001

      James M. Hughes, with whom, on the brief, was Thomas A. Mulligan, Jr., for the appellant (named defendant).

      Gregory T. D’Auria, associate attorney general, with whom were William J. McCullough, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and J. Sarah Posner, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

SULLIVAN, C. J.

This appeal presents two issues concerning the transfer of a workers’ compensation claim to the defendant second injury fund (fund) that are identical to those decided by this court today in the case of Giaimo v. New Haven, 257 Conn. 481, 778 A.2d 33 (2001). Specifically, the named defendant, Norwalk Hospital (hospital), claims that General Statutes § 31-349c (a) violates the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the Connecticut constitution. The fund argues that the hospital’s claim is moot in light of General Statutes § 31-349h. In Giaimo, we concluded that § 31-349c (a) is unconstitutional under the state and federal constitutions, as applied to the facts of that case; id., 516; and that § 31-349h does not bar the transfer of claims that were eligible for transfer prior to July 1, 1999, and that ultimately are found to be transferable. Id., 498. We conclude that § 31-349c (a) is also unconstitutional as applied to the facts of this case.

The record reveals the following relevant facts. The plaintiff, Jean Zeoli, injured her back on March 26,1995, during the course of her employment with the hospital. The injury was found to be compensable under the workers’ compensation act (act), and compensation was paid by the hospital and its insurer. The hospital subsequently sought to transfer the claim to the fund, claiming that the plaintiff had a preexisting physical disability to her back that had caused her disability from the second injury to be materially and substantially greater than it otherwise would have been.

Pursuant to § 31-349c (a), the chairman of the workers’ compensation commission assigned the claim to a panel of three physicians, consisting of Leo Willett, an orthopedic surgeon, John Basile, a neurosurgeon, and Robert Stem, a chiropractor. The panel examined the plaintiff and issued its report on February 5, 1998, concluding that the claim did not qualify for a transfer to the fund. On March 17, 1998, and again on April 29, 1998, the hospital wrote to the commissioner requesting that the commissioner enter a finding or order concerning the panel’s decision so that the hospital would have a ruling from which to appeal to the compensation review board (board). When the commissioner took no action, the hospital, on October 14, 1998, requested a hearing on the panel’s decision and again requested that the commissioner take some action with respect to the decision. A formal hearing was held on January 27, 1999, and on February 3, 1999, the commissioner issued a finding and dismissal, ruling that the panel’s decision, that the plaintiffs preexisting condition had not caused her disability to be materially and substantially greater than it otherwise would have been, controlled, and denying the claim for a transfer.

On February 11, 1999, the hospital filed a motion to correct, which the commissioner denied on the same date. The hospital also filed with the board a petition for review and a motion for expedited reservation of the case to the Appellate Court pursuant to General Statutes § 31-324. The fund moved to dismiss the hospital’s petition for review and motion to correct on the grounds that the board had no subject matter jurisdiction in light of § 31-349h. The board issued its opinion on March 13, 2000, concluding that it could not reserve the constitutional question to the Appellate Court because it was not justiciable by the board in the first instance. The board held that the transfer of the claim was not barred by § 31-349h and affirmed the commissioner’s February 3, 1999 decision. The hospital appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

For the reasons set forth in Giaimo v. New Haven, supra, 257 Conn. 498, the decision of the board is affirmed with respect to the board’s ruling that the transfer of the claim was not barred by § 31-349h. The decision of the board is reversed in part, and the case is remanded to the board with direction to remand it to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 31-349c (a) provides: “The custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301.”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       General Statutes § 31-349h provides: “All transfers ol' claims to the Second Injury Fund with a date of injury prior to July 1, 1995, shall be effected no later than July 1, 1999. All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.”

       The fact that the commissioner held a formal hearing on the hospital’s claim does not affect our conclusion that the procedures provided by § 31-349c are constitutionally inadequate as applied to the facts of this case. The commissioner concluded at that healing that his ruling was controlled by the decision of the medical panel. Accordingly, the proceeding before the commissioner was merely pro forma, and its only purpose was to provide an opportunity for the commissioner to affirm the panel’s decision without analysis thereof. For the reasons set forth in Giaimo v. New Haven, supra, 257 Conn. 516, we conclude that such a procedure is constitutionally inadequate.

       General Statutes § 31-324 provides in relevant part: “When, in any case arising under the provisions of this chapter, the Compensation Review Board is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the Appellate Court, in order that a definite rule be established applicable to future cases, said Compensation Review Board may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the Appellate Court. . . .”

       The board’s ruling that it would not reserve the constitutional question to the Appellate Court is not at issue in this appeal.


source: Caselaw Access Project

author: VERTEFEUILLE, J.

license: Public Domain

text:
    THE JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY, INC. v. J. MICHAEL CANTORE, JR., CONSERVATOR (PERSON AND ESTATE OF DIANA KOSMINER), ET AL.
    (SC 16388)
    Sullivan, C. X, and Borden, Katz, Palmer and Vertefeuille, Js.

      Argued April 19
    officially released August 14, 2001

      Elizabeth J. Stewart, with whom were Martha Everett Meng and, on the brief, Everett E. Newton and Jennifer Morgan DelMonico, for the appellant (plaintiff).

      James J. Farrell, for the appellees (defendants).
   Opinion

VERTEFEUILLE, J.

The sole question in this certified appeal is whether a nursing home has a right to bring an action on a probate bond when it suffers a loss as a result of a conservator’s failure to ensure payment to the nursing home for his ward’s care. The plaintiff, The Jewish Home for the Elderly of Fairfield County, Inc., appeals from the judgment of the Appellate Court, affirming the judgment of the trial court granting the defendants’ motion to strike the complaint. Jewish Nursing Home of Fairfield County, Inc. v. Cantore, 58 Conn. App. 1, 752 A.2d 117 (2000). We conclude that the plaintiff has a right to bring this action on a probate bond pursuant to General Statutes (Rev. to 1995) § 45a-144 (a). Accordingly, we reverse the judgment of the Appellate Court.

Pursuant to § 45a-144 (a), the plaintiff, a state licensed nursing home, brought this action on a probate bond against the defendants, J. Michael Cantore, Jr., conservator of the person and estate of Diana Kosminer, and Continental Casualty Company (Continental), the surety on the bond. The trial court granted the defendants’ motion to strike the plaintiffs complaint for failure to state a legally sufficient cause of action and subsequently rendered judgment for the defendants. The plaintiff appealed from that judgment to the Appellate Court. The Appellate Court affirmed the judgment of the trial court, holding that the complaint did not state facts sufficient to show that Cantore had breached any fiduciary duty that he owed to his ward, Kosminer, and, therefore, an action on the probate bond could not be sustained. Id., 7. We granted the plaintiffs petition for certification to appeal to this court. We conclude that the plaintiffs complaint stated a legally sufficient cause of action under § 45a-144 (a) and therefore reverse the judgment of the Appellate Court.

The complaint sets forth the following facts. On June 8,1987, the Probate Court appointed Cantore as conservator of the person and estate of Kosminer. Pursuant to General Statutes § 45a-139, Cantore executed and filed with the court a probate bond in the amount of $50,000, naming himself as principal and Continental as surety. The bond provided that it was conditioned, as required by § 45a-139, on Cantore “faithfully perform[ing] the duties of his trust and administer[ing] and accounting] for all monies and other property coming into his hands, as fiduciary, according to law . . . ,” On August 29, 1989, upon Cantore’s request, Kosminer was admitted to the plaintiffs facility as a “private, self-pay” resident, where she remained until her death in 1995. At the time of Kosminer’s admittance, her estate had assets of approximately $160,000. Despite the ample resources of the estate, Cantore failed to make timely payment to the plaintiff for the care and services provided to Kosminer. Instead, on May 2, 1990, more than eight months after Kosminer had been admitted to the plaintiffs facility, Cantore made an initial application on Kosminer’s behalf to the department of income maintenance (department) for Title XIX (medicaid) assistance, which, if Kosminer had been eligible, would have paid for the cost of her care. This initial application was denied on the ground that Cantore had failed to provide the department with information to verify that Kosminer’s assets did not exceed $1600, the maximum amount permitted for medicaid eligibility.

Approximately one and one-half years after the initial application was denied, and more than two years after Kosminer had entered the plaintiffs facility, Cantore applied for medicaid benefits on Kosminer’s behalf for a second time. Again Cantore failed to provide the department with the necessary asset information, and this second application was also denied. On January 15, 1992, Cantore attempted for a third time to qualify Kosminer for medicaid benefits, but this application was denied on the ground that the assets in Kosminer’s estate exceeded the $1600 maximum eligibility requirement. At the time of this third application, the plaintiff had provided care and services to Kosminer for nearly two and one-half years despite Cantore’s continuous failure to make or ensure payment for those services. Cantore finally liquidated Kosminer’s assets to below $1600 on June 20, 1992, and his fourth application for medicaid benefits of July 17, 1992, was granted by the department, retroactive to June 1, 1992. Although the liquidation of the estate included a payment to the plaintiff, an unpaid balance of $63,000 remained for the care and services Kosminer received from August 29, 1989, when she was admitted to the plaintiff’s facility, to June 1, 1992, the date on which the medicaid benefits began to cover the cost of her care.

In its complaint, the plaintiff alleged that Cantore had a duty as Kosminer’s conservator to use the assets of her estate to pay for the care and services she had received from the plaintiff. In addition, it alleged that Cantore had a duty to apply promptly for medicaid assistance when the estate’s assets approached the $1600 medicaid eligibility mark. The plaintiff alleged farther that Cantore’s failure to pay for Kosminer’s care, first from the assets of the estate and then through medicaid once those assets were depleted, constituted a breach of his fiduciary duty as conservator of Kosminer’s estate and person. Finally, the plaintiff alleged that Cantore’s breach of these duties cost the plaintiff $63,000, and gave it the right under § 45a-144 (a) to bring an action on the probate bond against Cantore, as the principal on the bond, and Continental, as surety.

The defendants moved to strike the complaint for failure to state a legally sufficient cause of action. The trial court, construing the action as one sounding in negligence, determined that the plaintiff had failed to satisfy the duty prong of a negligence action, because “any duty owed by . . . Cantore [was] solely to . . . Kosminer.” The trial court concluded therefore that the plaintiffs complaint did not state a legally sufficient cause of action. Accordingly, the trial court granted the defendants’ motion to strike and rendered judgment for the defendants.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had construed the action on the probate bond as an action in negligence and improperly had determined that the plaintiffs complaint failed to state a cause of action sufficient to withstand a motion to strike. The Appellate Court agreed with the plaintiff on the first issue, concluding that the plaintiffs complaint constituted an action on the probate bond under § 45a-144 (a), rather than an action in negligence. Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 58 Conn. App. 5-6. The Appellate Court, however, agreed with the trial court on the second issue, namely, that the plaintiffs complaint failed to state a recognized cause of action, and, as a result, affirmed the trial court’s judgment for the defendants. Id., 6-7. This appeal followed.

On appeal to this court, the plaintiff argues, in essence, that: the law imposed certain duties upon Cant-ore, as conservator of Kosminer’s estate and person; he breached those duties by failing to ensure timely payment to the plaintiff through either the estate or through public assistance; the breach of those duties constituted a breach of the probate bond; and the plaintiff was aggrieved by those breaches. The defendants respond by arguing that the plaintiff had no authority to bring an action for the breach of the probate bond because only parties acting as a representative of the estate or seeking recovery for the estate are entitled to bring such actions. We agree with the plaintiff.

The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). “We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260-61, 765 A.2d 505 (2001).

The sole issue in this appeal is whether the plaintiff has a right to bring an action on the probate bond to recover for the loss it suffered as a result of Cantore’s failure to ensure timely payment for Kosminer’s care. As defined by statute, a probate bond is “a bond with security given to secure the faithful performance by an appointed fiduciary of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law.” General Statutes § 45a-139 (a). The fiduciary’s faithful performance of his legal duties is the condition on which a probate bond is executed; General Statutes § 45a-139 (b); and, accordingly, the failure of a fiduciary, such as a conservator, to perform those duties faithfully results in a breach of the bond.

To decide the issue in this appeal, our inquiry is threefold. First, we must ascertain the duties that are imposed by law upon a conservator; second, we must determine whether the existence and breach of those duties has been alleged in the complaint in this case; and third, we must determine who is entitled to bring an action on the probate bond for the breach of those duties.

We first look to the General Statutes to ascertain the duties imposed upon a conservator. “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 statutory language as applied to the facts of this case, including the question of whether the language actually does apply. 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.” (Internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 604, 748 A.2d 278 (2000).

The statutory duties of a conservator are clearly defined in General Statutes § 45a-655, which delineates the duties of a conservator of the estate, and General Statutes § 45a-656, which prescribes the duties of a conservator of the person. A conservator of the estate “shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward’s family whom he or she has the legal duty to support and to pay the ward’s debts . . . .” (Emphasis added.) General Statutes § 45a-655 (a). A conservator of the person has “the duty to provide for the care, comfort and maintenance of the ward”; General Statutes § 45a-656 (a) (4); and that duty “shall be carried out within the limitations of the resources available to the ward, either through his own estate or through private or public assistance.” General Statutes § 45a-656 (a). In addition, “[w]here a statute imposes a duty and is silent as to when it is to be performed, a reasonable time is implied.” Hartley v. Vitiello, 113 Conn. 74, 79-80, 154 A. 255 (1931); Ely v. Bugbee, 90 Conn. 584, 587-88, 98 A. 121 (1916).

In the present case, Cantore was conservator of both the estate and the person of Kosminer. Consequently, as provided in §§ 45a-655 (a) and 45a-656 (a), Cantore had a duty, among other things, to use Kosminer’s estate to support her and pay her debts, and he had a duty to provide for her care, comfort and maintenance, either through the estate or through private or public assistance. Furthermore, Cantore was obligated to perform these duties within a reasonable time. Hartley v. Vitiello, supra, 113 Conn. 79-80. The existence of all of these duties was alleged in the complaint, and, at least with regard to Cantore’s duty to pay his ward’s debts, conceded by the defendants’ counsel at oral argument.

Turning to the second prong of our inquiry, we must now determine whether the complaint alleged a breach of these duties. The complaint alleged that Cantore failed to make timely payment to the plaintiff for the care and services it provided to Kosminer and failed to apply for medicaid benefits on Kosminer’s behalf once timely payment for the plaintiffs services had exhausted the assets of the estate. The complaint further alleged that these actions by Cantore resulted in a breach of his fiduciary duties as conservator of Kosminer’s estate and person. Kosminer incurred a substantial debt as a result of the services she received from the plaintiff. Cantore’s failure to pay this debt, despite the estate’s ample resources, constituted a breach of his duty under § 45a-655 (a) to use the assets of the estate to pay Kosminer’s debts. Furthermore, Cantore’s failure to ensure timely payment to the plaintiff constituted a breach of his duty under § 45a-656 (a) to provide for Kosminer’s care through the estate or through other private or public assistance. We conclude that the plaintiff properly alleged facts that, if proven, would establish Cantore’s failure to fulfill his legal duties as Kosminer’s conservator.

In affirming the trial court’s judgment, the Appellate Court focused on Cantore’s role as conservator of Kosminer’s person, and more specifically, his duty to provide for her care, comfort and maintenance. Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 58 Conn. App. 7. The defendants rely in this court on the reasoning of the Appellate Court. Because the facts alleged in the complaint established that Kosminer was never discharged or threatened with discharge from the plaintiffs facility, the Appellate Court held there was no allegation that Kosminer ceased receiving care and, consequently, no allegation that Cantore breached his duty to provide for her care. The court then only briefly touched on Cantore’s duties as conservator of Kosminer’s estate, specifically his duty to protect the assets of the estate and to use them for Kosminer’s benefit, and it did so without reference to any specific statutory provision. Id. The Appellate Court found nothing in the complaint that alleged a breach of these duties. Id. Accordingly, the Appellate Court concluded that the facts alleged in the complaint were insufficient to support a cause of action for breach of Cantore’s fiduciary duty to Kosminer with respect to the probate bond, and affirmed the trial court’s judgment. Id.

The reasoning of the defendants and the Appellate Court construes too narrowly Cantore’s duty to provide for Kosminer’s care, comfort and maintenance, and fails to recognize that this duty and his duty to protect the assets of her estate and use them for her benefit are but a few of the many duties imposed by law upon a conservator of the estate and person. Although the duties discussed in the Appellate Court’s decision have been recognized previously by this court; Dept. of Social Services v. Saunders, 247 Conn. 686, 707-708, 724 A.2d 1093 (1999) (conservator owes duty of loyalty to ward and, as agent of Probate Court, has duty to protect estate’s assets); Murphy v. Wakelee, 247 Conn. 396, 406, 721 A.2d 1181 (1998) (conservator, as agent of Probate Court, has duty to protect assets of estate); Marcus’ Appeal from Probate, 199 Conn. 524, 529, 509 A.2d 1 (1986) (same); they are not the only duties a conservator faithfully must perform. The probate bond was conditioned on Cantore faithfully performing the duties the law imposed upon him as conservator of Kosminer’s person and estate, and the complaint clearly alleged the existence of these duties and Cantore’s breach of the duties. The only inquiry remaining, therefore, in deciding whether the trial court improperly struck the complaint, is whether the plaintiff has a right to bring an action on the probate bond for this breach.

Section 45a-144 provides a cause of action for the breach of a probate bond. That statute provides: “Any person claiming to be aggrieved by the breach of a probate bond, as representative of the estate in connection with which the bond was given, or in his own right or in the right of himself and all others having an interest in the estate, may bring an action to recover for the breach in his own name . . . .” (Emphasis added.) General Statutes (Rev. to 1995) § 45a-144 (a). This statute evidences the legislature’s intent to create three separate categories of potential plaintiffs in a suit on a probate bond: first, a plaintiff bringing an action “as representative of the estate”; second, a plaintiff bringing an action “in his own right”; and third, a plaintiff bringing an action “in the right of himself and all others having an interest in the estate . . . .” General Statutes (Rev. to 1995) § 45a-144 (a). To bring an action on a probate bond, a plaintiff must fall within one of these three categories.

The plaintiff is not, nor does it purport to be, bringing an action as a representative of the estate or in its own right and the right of all others having an interest in the estate. Rather, the plaintiff claims that Cantore breached the conditions of the probate bond by failing to perform faithfully his fiduciary duties as Kosminer’s conservator, resulting in loss to the plaintiff, and it seeks to recover for its loss resulting from that breach. The plaintiff fits squarely in the second category of potential plaintiffs authorized by § 45a-144 (a) to bring an action on the probate bond, namely, a plaintiff suing in its own right to recover in its own name for the breach of a probate bond. Accordingly, the complaint stated a legally sufficient cause of action and the granting of the defendants’ motion to strike the complaint was improper.

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

In this opinion the other justices concurred.

       Pursuant to General Statutes (Rev. to 1995) § 45a-144 (a), the revision of the statute that was in effect at the time of the relevant proceedings in this case, a person claiming to be aggrieved by the breach of a probate bond could “bring an action to recover for the breach,” as long as the person first obtained consent from the Probate Court, that issued the bond to bring the action. Pursuant to this statutory requirement, the plaintiff requested permission from the Probate Court for the District of Stamford before bringing the present action on the probate bond in the Superior Court. The Probate Court, pursuant to its general powers delineated in General Statutes § 45a-98, issued an order dated August 21, 1995, granting the plaintiff the necessary authorization to bring the action. Section 45a.-144 was amended by No. 98-52, § 8, of the 1998 Public Acts, which repealed this consent requirement and added the option of applying to the Probate Court, to recover for the breach of a probate bond. As a result, the current revision of the statute provides in relevant part: “Any person claiming to be aggrieved by the breach of a probate bond . . . may bring an action in the Superior Court or may apply to the court of probate in which the bond was given to recover for the breach . . . General Statutes § 45a-144 (a). References herein are to the 1995 revision of § 45a-144 (a).

       The certified issue in this appeal is as follows: “Did the Appellate Court properly conclude that the plaintiffs complaint did not state a legally sufficient cause of action?” Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 254 Conn. 916, 759 A.2d 506 (2000).

       General Statutes § 45a-139 provides: “(a) As used in this title, except as otherwise provided, ‘bond’ or ‘probate bond’ means a bond with security given to secure the faithful performance by an appointed fiduciary of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law.
      “(b) Except as otherwise provided, every bond or probate bond shall be payable to the state, shall be conditioned for the faithful performance by the principal in the bond of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law, and shall be in such amount and with such security as shall be required by the judge of probate having jurisdiction pursuant to rules prescribed by the Supreme Court. If bond is required of a fiduciary, his appointment shall not be effective until the bond has been accepted by the Court of Probate.”
      The requirement that a probate bond be filed upon the appointment of a conservator is found in General Statutes § 45a-650 (f), which provides in relevant part: “If the court [of probate] appoints a conservator of the estate of the respondent, it shall require a probate bond. . . .”

       The language of the bond was modeled after the text of § 45a-139. For the full text of § 45a-139, see footnote 3 of this opinion. The bond was attached to the complaint as an exhibit.

       The department of income maintenance is now known as the department of social services.

       For the Ml text of § 45a-139, see footnote 3 of this opinion.

       General Statutes § 45a-655 (a) provides: “A conservator of the estate appointed under section 45a-646,45a-650 or 45a-654 shall, within two months alter the date of his or her appointment, make and file in the Court of Probate, an inventory under penalty of false statement of the estate of his or her ward, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of his or her appointment. Such inventory shall include the value of the ward’s interest in all property in which the ward has a legal or equitable present interest, including, but not limited to, the ward’s interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part, of the principal of the property, which is required to support, the ward and those members of the ward’s family whom he or she has the legal duty to support, and to pay the ward’s debts, and may sue for and collect all debts due the ward.”

       General Statutes § 45a-656 (a) provides: “The conservator of the person shall have: (1) The duty and responsibility for the general custody of the respondent; (2) the power to establish his or her place of abode within the state; (3) the power to give consent for his or her medical or other professional care, counsel, treatment or service; (4) the duty to provide for the care, comfort and maintenance of the ward; (5) the duty to take reasonable care of the respondent’s personal effects; and (6) the duty to report at least annually to the probate court which appointed the conservator regarding the condition of the respondent. The preceding duties, responsibilities and powers shall be carried out within the limitations of the resources available to the ward, either through his own estate or through private or public assistance.”

       General Statutes § 52-117 (a), which establishes three pleading requirements for an action on a probate bond being brought by a party such as the plaintiff, provides: “(a) In any action upon a bond taken in a court of probate, not brought by a representative of the estate in connection with which the bond was given or by some person in his own behalf and that of all other persons interested in the estate, the plaintiff shall state in his complaint or reply, (1) the persons for whose special benefit the action is prosecuted, (2) how such persons are interested in the action, and (3) how the act or neglect of the defendant has injured their rights or affected their interests.” There has been no claim in this case that the plaintiff failed to comply with these pleading requirements.


author: KATZ, J.

text:
    STATE OF CONNECTICUT v. BRIAN K. MCMAHON, JR.
    (SC 16322)
    Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued May 22
    officially released August 14, 2001

      M. Hatcher Norris, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, -was Patricia A. Swords, state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The defendant, Brian K. McMahon, Jr., appeals from the judgment of conviction, rendered after a trial to the court, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (3) and 53a-55a, in connection with a hunting incident that resulted in the death of the victim, Ronald Eckert, Jr.

The defendant raises four issues on appeal. First, he claims that the trial court improperly denied his motion to dismiss the manslaughter charge. Specifically, he contends that § 53a-55 (a) (3) is unconstitutionally vague as applied to the facts of this case, because the statute fails to define the phrases “extreme indifference to human life” and “grave risk of death.” Second, he contends that the trial court unconstitutionally subjected him to double jeopardy by applying the sentence enhancement provision of General Statutes § 53-202k to his sentence for manslaughter in the first degree with a firearm. Third, he claims that the trial court improperly applied the § 53-202k sentence enhancement to both the suspended and nonsuspended portions of his split sentence. Finally, the defendant contends that the trial court improperly found that there was sufficient evidence to convict him of manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (3) and 53a-55a. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. At approximately 6:50 a.m. on Sunday, October 25,1998, the defendant left his home in Coventry with a .44 caliber rifle that he had purchased the week before from a private owner at a local bar. He intended to hunt for deer, despite the fact that hunting season was closed and that he had neither a hunting license nor a deer permit. The defendant entered a section of the woods directly across from the house in which he lived with his wife, his two year old son, his mother, his two brothers and his stepfather. The woods were privately owned, and often used by residents for recreational activities, including walking, hiking, bicycling and motorcycling. The defendant did not have permission from the owner to hunt on the property and, because he was aware that he was hunting illegally, he wore camouflage clothing to avoid detection.

The defendant walked approximately one quarter of one mile into the woods, slightly uphill, on a designated walking trail, and then turned off of the trail and walked another one quarter of one mile. Eventually, he walked down a slope and sat down on a rock facing away from the trail, and waited for deer. After about fifteen minutes, the defendant heard from behind what he thought was a deer snort. He turned and walked approximately fifteen to twenty feet back up the slope in the direction of the sound. The area was thickly wooded, and the fall foliage was full and multicolored. The defendant, who is color-blind, perceived what he thought was a deer, approximately 175 feet away. After a few minutes, the defendant took aim and fired one shot up the slope through the trees. The bullet struck the victim in the back and exited through his chest, lodging in his arm. The victim, a thirty-three year old man, had been walking his dog along the trail and had been either sitting or standing on a rock when the bullet struck him. The defendant immediately heard the victim moan and, suspecting that he had shot someone, the defendant ran back to his house for help.

The defendant and his brother immediately returned to the woods with an all-terrain vehicle and confirmed that the defendant had shot a person. The defendant returned to his house a second time, to ask his wife, a nurse’s aide, to return to the woods with him. She did so and when they arrived back at the victim’s location, she could not detect the victim’s pulse. Thereafter, the defendant returned to his house for a third time, by which time, his stepfather had called the Coventry police department for assistance. Although a helicopter arrived and transported the victim from the scene, he had been on his back where he had fallen for some time and he died as a result of the gunshot wound.

At trial, the defendant admitted that he was hunting on private property without the owner’s permission, on a Sunday, without a license, a deer permit, or the required blaze orange outerwear, in full autumn foliage, and that he is color-blind. Nevertheless, he claimed that what had transpired in the woods was simply a terrible hunting accident, and that he had not acted with sufficient recklessness to be convicted of manslaughter. At the conclusion of the state’s case, the defendant moved to dismiss the manslaughter charge, claiming that, although criminally negligent homicide might have been an appropriate charge, manslaughter was not. The trial court deferred any action on the motion to dismiss until the conclusion of the case, at which time it denied the motion. The trial court thereafter found the defendant guilty on all nine counts of the first part of the substitute information.

Thereafter, on the second part of the information, the trial court found that the defendant had used a firearm in the commission of a class B felony in violation of § 53-202k, and enhanced his sentence accordingly. The court sentenced the defendant for his conviction of manslaughter in the first degree with a firearm to a term of thirty years incarceration, execution suspended after fourteen years, and five years probation. The court subsequently applied the § 53-202k five year sentence enhancement to both the suspended and nonsuspended portions of the split sentence. Accordingly, the trial court sentenced the defendant to a total effective sentence of thirty-five years incarceration, execution suspended after nineteen years, and five years probation. Additional facts will be provided as necessary.

I

The defendant first contends that the trial court improperly denied his motion to dismiss the manslaughter charge on the grounds that § 53a-55 (a) (3) is unconstitutionally vague as applied to his conduct and, therefore, violates his rights to due process under the federal and state constitutions. Specifically, the defendant claims that, as a result of the legislature’s failure to define the phrases “extreme indifference to human life” and “grave risk of death” in § 53a-55 (a) (3), he had no warning of the statute’s application to the facts in this case, and was subjected to the statute’s arbitrary and discriminatory application. The state, in contrast, claims that the trial court properly denied the defendant’s motion to dismiss, contending that the legislature’s failure to define specific terms in the statute does not render § 53a-55 (a) (3) unconstitutionally vague.

We conduct our review of this claim mindful that “legislative enactments cariy with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984); State v. Wilchinski, 242 Conn. 211, 217-18, 700 A.2d 1 (1997). We conclude that the defendant has failed to meet that burden.

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); State v. Wilchinski, supra, 242 Conn. 219; State v. DeFrancesco, 235 Conn. 426, 443, 668 A.2d 348 (1995); State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). “[The doctrine] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.” State v. Schriver, 207 Conn. 456, 459-60, 542 A.2d 686 (1988). The United States Supreme Court has emphasized that “the more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” (Internal quotation marks omitted.) Kolender v. Lawson, supra, 357-58; State v. Schriver, supra, 460. Thus, “[i]n order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited’ ”; State v. Schrivener, supra, 460; and must not “ ‘impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ ” Id.; see Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Finally, “[i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness . . . for [i]n most English words and phrases there lurk uncertainties.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 778, 695 A.2d 525 (1997). “[T]he statute must contain some core meaning within which the defendant’s actions clearly fall.” State v. Wilchinski, supra, 220. “References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” St,ate v. Pickering, 180 Conn. 54, 62-63, 428 A.2d 322 (1980).

With these principles in mind, we turn to the defendant’s void for vagueness claim. The defendant claims that the phrases “extreme indifference to human life” and “grave risk of death” contained in § 53a-55 (a) (3) are unconstitutionally vague because they did not give him fair warning that he could be convicted of manslaughter in the first degree for accidently killing a person while hunting deer for spoil. The defendant further contends that, because the legislature did not define these phrases, the statute is susceptible to arbitrary enforcement, and that the prosecutor enforced it arbitrarily against him in this case. The state claims, in contrast, that the common meaning of these statutory phrases and judicial opinions involving § 53a-55 (a) (3) gave the defendant warning that the statute proscribed his conduct. We agree with the state.

The Penal Code does not define the phrases “extreme indifference to human life” and “grave risk of death.” General Statutes § 1-1, entitled “[w]ords and phrases,” however, provides in relevant part: “(a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. . . .” Thus, the meaning of “extreme indifference to human life” and “grave risk of death” can be achieved by reference to any dictionary and to judicial opinions addressing violations of § 53a-55 (a) (3). State v. Pickering, supra, 180 Conn. 62-63; see also State v. Best, 56 Conn. App. 742, 755-56, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000) (referring to dictionary for definitions of “extreme” and “grave”).

In looking to the statute itself, the legislature has provided some guidance as to the level of “indifference” it intended in § 53a-55 (a) (3) by modifying the level of indifference with the adjective “extreme.” Extreme is defined as “existing in the highest or greatest possible degree,” and is synonymous with “excessive.” Webster’s Third New International Dictionary. The adjective “grave” is defined as “very serious: dangerous to life . . . .” Id.

Judicial opinions provide further guidance as to the meaning of these phrases. In particular, “we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court, have placed on the statute.” State v. Indrisano, supra, 228 Conn. 805. Prior judicial opinions involving the phrases “extreme indifference to human life” and “grave risk of death” have emphasized that the phrases are given their plain meaning. In State v. Spates, 176 Conn. 227, 236-37, 405 A.2d 656 (1978), this court concluded that the trial court had properly defined “extreme indifference” for the jury according to its “ordinary meaning,” by stating that it meant more than “[m]ere carelessness” or “ordinary recklessness . . . .” Similarly, in State v. Bunker, 27 Conn. App. 322, 326-27, 606 A.2d 30 (1992), the Appellate Court concluded that the trial court’s jury instruction, defining “extreme indifference to human life” as “a high degree of disinterest to human life,” was proper. See also State v. Pitt, 28 Conn. App. 825, 830-31, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992) (trial court properly refused to define “extreme indifference” and “grave risk of death” for jury where instruction was clear that, in accordance with “ordinary meaning” of phrases, “aggravated form of recklessness” required).

In addition, “prior decisions of this court which delineate a statute’s reach can constitute sufficient notice of the acts prohibited to render the statute constitutional as applied to the particular facts of a case.” State v. Pickering, supra, 180 Conn. 63. The scope of the conduct that the phrases “extreme indifference to human life” and “grave risk of death” encompass has been elucidated repeatedly by opinions of this court upholding convictions under § 53a-55 (a) (3). In State v. Bunkley, 202 Conn. 629, 642, 522 A.2d 795 (1987), the defendant claimed that § 53a-55 (a) (3) was unconstitutionally vague as applied to his conduct on a theory similar to that upon which the defendant relies in this case. Specifically, the defendant therein contended that he could not have known that he could be convicted of manslaughter for a death resulting from an automobile accident because the standard of recklessness as defined for the purposes of § 53a-55 (a) (3) “did not give him fair warning when his conduct became reckless as opposed to criminally negligent.” Id. This court concluded that the mental state required for a violation of § 53a-55 (a) (3) was clear. Id. “Recklessness involves a subjective realization of a risk and a conscious decision to ignore that risk . . . .” (Citation omitted.) Id., 643. The court in Bunkley affirmed the defendant’s conviction, concluding that § 53a-55 (a) (3) was not unconstitutionally vague as applied to him because he had chosen, while evading police pursuit, to drive at an excessive rate of speed, to improperly pass other vehicles, to disregard traffic signals, and to drive on the wrong side of the road. Id., 631, 644, 645. Numerous other decisions of this court and the Appellate Court have addressed the application of the manslaughter statutes in varied factual contexts. See, e.g., State v. Wassil, 233 Conn. 174, 191-92, 658 A.2d 548 (1995) (affirming conviction where defendant delivered drugs to victim who later died after ingesting them); State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990) (affirming conviction where defendant caused death of baby by throwing her into bathtub in frustration), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992); State v. Pellegrino, 194 Conn. 279, 294-95, 480 A.2d 537 (1984) (affirndng conviction under § 53a-55 [a] [3] where defendant and accomplice set business on fire, and accomplice died in fire); State v. Shine, 193 Conn. 632, 643, 479 A.2d 218 (1984) (affirming conviction where intoxicated defendant drove car directly into two pedestrians causing their deaths); State v. Spates, supra, 176 Conn. 237 (affirming conviction under § 53a-55 [a] [3] where defendant, in course of robbing victim, ignored victim’s pleas for medical attention, resulting in victim’s death from heart attack); State v. Johnson, 29 Conn. App. 394, 396, 615 A.2d 512 (1992) (affirming conviction where defendant drove wrong way on highway, colliding with and causing death of victim), appeal dismissed, 227 Conn. 611, 630 A.2d 69 (1993); State v. Hall, 28 Conn. App. 771, 773, 612 A.2d 135, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992) (affirming conviction where defendant hit victim in head with brick causing his death).

The defendant in the present case previously had been convicted of illegal hunting in 1992. When he fired the fatal shot, the defendant was hunting on private property without permission, during the closed season, on a Sunday. In addition, he was hunting without a license or a deer permit, and without the required blaze orange safety attire, in a wooded area thick with foliage with the knowledge that he is color-blind. The defendant shot a long-range, high-powered rifle without a proper sight line or a proper backstop into an area that he knew or should have known was frequented by people walking and riding their bicycles. Finally, when the defendant first suspected that he had shot a person, he failed to investigate immediately, and after he had confirmed his suspicions, he failed to render medical aid to the victim. The defendant also delayed in calling the police for assistance. In light of the plain meaning and judicial interpretations of the phrases “extreme indifference to human life” and “grave risk of death,” we conclude that a person of ordinary intelligence would have had fair warning that the defendant’s actions in this case were proscribed under § 53a-55 (a) (3). Therefore, we conclude that § 53a-55 (a) (3) is not unconstitutionally void for vagueness as applied to the defendant in this case, and that the trial court properly denied the defendant’s motion to dismiss.

II

The defendant next claims that the trial court improperly applied the § 53-202k sentence enhancement to his conviction for first degree manslaughter with a firearm. He makes two separate claims with regard to § 53-202k. First, the defendant claims that the trial court’s application of the statute’s sentence enhancement provision for the commission of a class A, B or C felony with a firearm, to the defendant’s sentence for the crime of manslaughter in the first degree with a firearm, violated his constitutional rights against double jeopardy by punishing him twice for the same offense, namely, the use of a firearm. Second, the defendant claims that the trial court’s application of § 53-202k’s five year mandatory minimum to both the suspended and nonsuspended portions of his split sentence violated statutory restrictions on maximum sentences. We disagree with both of these claims.

A

In support of his claim that the trial court’s determination to enhance his sentence under § 53-202k constitutes double jeopardy in violation of the state and federal constitutions, the defendant contends that his sentence already had been enhanced for use of a firearm by virtue of his conviction of manslaughter in the first degree with a firearm. Therefore, the defendant claims that the application of the § 53-202k sentence enhancement provision to the underlying offense which has, as an element, the use of a firearm, subj ected him to double jeopardy for that same offense. The state maintains that the trial court’s imposition of two consecutive mandatory minimum sentences for the use of a firearm in the commission of first degree manslaughter is consistent with the authority and intent of the legislature, and does not place the defendant in double jeopardy. We agree with the state.

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments [in the same trial] for the same offense. . . . The third of these protections is at issue in the present case.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Hickam, 235 Conn. 614, 617-18, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996). While “[t]he constitution of Connecticut has never contained a provision against double jeopardy . . . [it] has long [been] recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense.” (Citations omitted.) State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969).

In State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997), this court concluded that § 53-202k is a sentence enhancement, not a separate felony offense. See also State v. Delgado, 247 Conn. 616, 634, 725 A.2d 306 (1999) (remanding for modification of judgment to reflect that § 53-202k is not separate offense). As evidenced by our prior conclusions in this line of cases, we consistently have sanctioned the application of § 53-202k’s sentence enhancement provision for the use of a firearm in the commission of a class A, B or C felony, to a conviction of a class A, B or C felony, as not violating double jeopardy principles. State v. Delgado, supra, 634; State v. Dash, supra, 146. The more specific question in this case, however, is whether the application of the § 53-202k sentence enhancement for the use of a firearm in the commission of a class A, B or C felony, to an underlying offense, an element of which is the use of a firearm, puts the defendant in double jeopardy for the same offense, namely, the use of that firearm.

There is a presumption that double jeopardy is violated where a defendant is given multiple punishments for the same conduct. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). That presumption, however, is not conclusive; it may be rebutted by evidence of clear legislative intent to punish the individual acts separately, rather than to punish only the course of action that they constitute. States v. Nixon, 231 Conn. 545, 555, 651 A.2d 1264 (1995); State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). “With respect to cumulative sentences imposed in a single trial, the [djouble [(Jeopardy [cjlause does no more than prevent the . . . court from prescribing greater punishments than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Anderson, 211 Conn. 18, 26, 557 A.2d 917 (1989).

In the present case, “[o]ur analysis [of § 53-202k] is governed by well established principles of statutory construction.” State v. Dash, supra, 242 Conn. 146. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... hi seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 147.

The express language of General Statutes § 53-202k provides in part that “[a]ny person who commits any class A, B or C felony” with a firearm “shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.” (Emphasis added.) The use of the modifier “any” suggests an affirmative attempt by the legislature to subject all class A, B or C felonies to § 53-202k’s five year enhancement. Moreover, the statute makes no exception for class A, B or C felonies that have, as an element, the use of a firearm.

It is important to note that the absence of an explicit exception for felonies committed with a firearm under § 53-202k is in stark contrast to § 53a-55a; see footnote 2 of this opinion; in which the legislature specifically addressed the overlap between convictions for class B felonies and convictions for class B felonies involving a firearm. General Statutes § 53a-55a (a) expressly provides in part that “[n]o person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction . . . .” (Emphasis added.) The language that the legislature included in § 53-202k, coupled with its demonstrated ability to create exceptions when it intends to, suggests that the legislature did not intend to except a conviction for manslaughter with a firearm under § 53a-55a from the application of the § 53-202k sentence enhancement. See State v. Davis, 255 Conn. 782, 791, 772 A.2d 559 (2001) (noting that, had legislature intended to except unarmed accessories from § 53-202k, it could have expressed its intent).

This court previously has examined the legislative history of § 53-202k, which supports the state’s contention that the legislature intended to impose § 53-202k’s enhancement provision on all class A, B and C felonies, including those that have, as an element, the use of a firearm. “Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons.” State v. Dash, supra, 242 Conn. 148. In particular, “§ 53-202k was intended, ‘[to add] five years to the end of whatever o ther sentence [a defendant is] receiving as a consequence of these acts.’ ” (Emphasis added.) Id., 149, quoting 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11,727, remarks of Representative Michael P. Lawlor. “ ‘The purpose, of course, is to make the penalties greater and greater if you use these weapons.’ ” (Emphasis in original.) Id., quoting 36 H.R. Proc., supra, p. 11,725, remarks of Representative Reginald L. Jones, Jr. Section 53-202k “ ‘requires a mandatory five year sentence ... in addition and consecutive to any imprisonment for the [underlying] felony.' ” (Emphasis added.) Id., quoting 36 S. Proc., Pt. 14, 1993 Sess., p. 4956, remarks of Senator Alvin W. Penn. In the absence of anything in the legislative history or § 53-202k to the contrary, “we afford substantial weight to [the legislators’ characterizations of the statute’s] objective and effect. See, e.g., Connecticut National Bank v. Giacomi, 242 Conn. 17, 40-41, 699 A.2d 101 (1997) . . . .” (Citations omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 692-93, 755 A.2d 850 (2000).

On the basis of the plain language of § 53-202k, its legislative history, and prior court decisions interpreting the statute, we conclude that the application of § 53-202k’s sentence enhancement to manslaughter in the first degree with a firearm, a class B felony, does not violate double jeopardy.

B

The defendant next claims that the trial court improperly applied § 53-202k’s mandatory five year sentence enhancement to both the suspended and nonsuspended portions of his split sentence. The trial court sentenced the defendant to thirty years incarceration, suspended after fourteen years, and five years probation for the conviction of first degree manslaughter with a firearm. Thereafter, the trial court found that the defendant had used a firearm in the commission of a class B felony and, pursuant to § 53-202k, added a five year consecutive sentence. The trial court applied the sentence enhancement to both the suspended and nonsuspended portions of the defendant’s sentence, thereby sentencing him to a total effective sentence of thirty-five years incarceration, suspended after nineteen years, and five years probation.

The defendant claims that, in applying the sentence enhancement provision of § 53-202k to both portions of the split sentence, the trial court improperly applied the sentence enhancement twice. He further contends that such an application could exceed the maximum sentence permissible under General Statutes § 53a-35a for the conviction of manslaughter in the first degree with a firearm. The defendant maintains that the § 53-202k sentence enhancement should be applied solely to the nonsuspended portion of a split sentence, thereby maintaining the maximum statutory duration of the sentence for his underlying conviction. That is, the defendant contends that the trial court should have maintained his total effective sentence at thirty years incarceration, suspended after nineteen years, rather than thirty-five years incarceration, suspended after nineteen years. The state claims that such an application of § 53-202k would defeat the purpose of the sentence enhancement provision because the five year enhancement would collapse into the suspended portion of the defendant’s sentence. Thus, the state claims, such an application of § 53-202k would not only reduce the effective sentence for the underlying conviction, but also, it would frustrate the legislature’s intent to enhance the sentences to which § 53-202k applies. We agree with the state.

As we noted previously, § 53-202k is a sentence enhancement statute. State v. Dash, supra, 242 Conn. 150. The intent of the legislature in enacting this statute was “to establish an enhanced penalty for persons who commit a class A, B or C felony with a firearm.” Id., 147. The statute expressly provides that a person who commits a class A, B or C felony with a firearm “shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.” (Emphasis added.) General Statutes § 53-202k. The plain language of the statute indicates that the legislature intended to impose a five year sentence in addition to any sentence for the underlying felony conviction, regardless of the length of the sentence for the underlying conviction. Indeed, the legislature’s use of the word “any” to modify the phrase “terms of imprisonment” indicates that the legislature intended to enhance any term permissible under the statutory sentencing scheme. Moreover, it is important to note that the legislature sets the statutory sentencing máximums and is able to provide for limitations on § 53-202k’s application in instances in which the cumulative sentence of the term for the underlying conviction and the five year enhancement would exceed the statutory maximum for the underlying felony. The fact that the legislature has not provided for such limitations on § 53-202k’s application indicates its intent that § 53-202k be applied to enhance the duration of the underlying sentences to which it is applied.

Section 53-202k’s legislative history further supports the conclusion that it applies to a split sentence as the trial court applied it herein. “[Section] 53-202k was intended, ‘[to add] five years to the end of whatever other sentence [a defendant is] receiving as a consequence of these acts. ... So, it is five additional years on top of the other sentence.’ ” (Emphasis altered.) State v. Dash, supra, 242 Conn. 149, quoting 36 H.R. Proc., supra, pp. 11,727-28, remarks of Representative Lawlor. Similarly, § 53-202k “ ‘requires a mandatory five year sentence ... in addition and consecutive to any imprisonment for the [underlying] felony.’ ” (Emphasis added.) Id., quoting 36 S. Proc., supra, p. 4956, remarks of Senator Penn. These statements indicate that the enhancement provision of § 53-202k applies to any term of imprisonment, including the maximum sentence for the underlying felony. Moreover, these statements also confirm that the legislature intended that the application of § 53-202k not only be “consecutive” to, but also be “in addition” to the sentence for the underlying felony.

If, as the defendant contends, the five year sentence enhancement were applied solely to the nonsuspended portion of a split sentence, the enhancement would not affect the suspended portion of the underlying sentence. Thus, under that interpretation, while the defendant’s sentence under the § 53-202k enhancement would be consecutive to the underlying sentence, it would not be in addition to that sentence. In contrast, when the sentence enhancement is added to both the suspended and nonsuspended portions of a split sentence, as the state contends, the aggregate term includes the § 53-202k enhancement in addition and consecutive to both the executed and suspended portions of the underlying sentence. On the basis of the language of § 53-202k and its legislative history, we conclude that the trial court properly applied § 53-202k’s sentence enhancement to the defendant’s split sentence.

Ill

The defendant next claims that the state failed to adduce evidence sufficient to warrant a conviction for manslaughter in the first degree with a firearm. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 463, 758 A.2d 824 (2000). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 177, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). “In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Wilcox, supra, 463.

Additionally, “[a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.” (Internal quotation marks omitted.) Id., 463-64.

In the present case, the defendant claims that the evidence was sufficient to support only a conviction for criminally negligent homicide, not, as the trial court concluded, manslaughter in the first degree with a firearm. Essentially, the defendant contends that the incident in question was an accident, and that the state failed to adduce evidence proving that his culpable mental state had risen beyond the level required for a finding of mere negligence to the level of aggravated recklessness required for a finding of first degree manslaughter. We disagree.

“To obtain a [manslaughter] conviction under [§] 53a-55 (a) (3) . . . the state must prove that the defendant (1) engaged in conduct which creates a risk of death, (2) in so doing, he acted recklessly (3) under circumstances evincing an extreme indifference to human life and (4) that his conduct caused the death ... of another person.” State v. Shine, supra, 193 Conn. 643. In State v. Bunkley, supra, 202 Conn. 643, this court concluded that the difference between the mental states required for criminal negligence and recklessness is clear. “[C]riminal negligence concerns a [defendant’s] failure to realize [a] risk.” Id. In denying the defendant’s motion to dismiss the manslaughter charge at the conclusion of the trial, after the court previously had denied the defendant’s motion for judgment of acquittal at the conclusion of the state’s case, the trial court recognized that recklessness, pursuant to General Statutes § 53a-3 (13), requires a showing that the defendant was “aware of and consciously disregarded] a substantial and unjustifiable risk ... of such nature and degree that disregarding it constitute^] a gross deviation from the standard of conduct that a reasonable person would [have observed] in the situation . . . .” See State v. Spates, supra, 176 Conn. 236-37 (concluding that “extreme indifference” more than “mere carelessness” or “ordinary recklessness”).

“We have long recognized that a defendant’s state of mind can usually be proven only by circumstantial evidence. . . . Recognizing the difficulty in proving by direct evidence that an accused subjectively realized and chose to ignore a substantial risk ... we have long held that the state of mind amounting to recklessness . . . may be inferred from conduct. ... It requires little extension of this principle to hold that such relevant conduct may constitute a course of behavior rather than one specific act.” (Citations omitted; internal quotation marks omitted.) State v. Salz, 226 Conn. 20, 32-33, 627 A.2d 862 (1993). Thus, in State v. Bunkley, supra, 202 Conn. 643, this court affirmed a manslaughter conviction under § 53a-55 (a) (3) where the defendant, in the course of evading police pursuit, had driven at excessive speeds on the wrong side of the road and had struck the victims’ car head on, resulting in the victims’ deaths.

Applying these principles to the present case, we conclude that the evidence was sufficient to support the trial court’s verdict. As we noted previously, it is undisputed that the defendant was hunting on private land without permission, on a Sunday, during closed season. In addition, he was hunting without the required blaze orange outerwear. In fact, the defendant told police that he specifically had not worn the orange outerwear in order to avoid being caught for hunting illegally. The defendant was not licensed to hunt, nor did he have a permit to hunt deer. Moreover, the defendant was hunting in an area thick with autumn foliage, fully aware of the fact that he is color-blind.

At the time of the incident, the defendant shot his long-range rifle without a proper sightline or a proper backstop toward a wooded area that he knew or should have known was frequented by people. Upon realizing that he may have shot a person, the defendant did not rash to the victim’s aid. Instead, he ran home. Indeed, he returned home twice before his stepfather called the Coventry police. At no time during these trips did the defendant administer medical aid to the victim. In light of this evidence, we conclude that the trial court; reasonably found, beyond a reasonable doubt, that the defendant was guilty of the crime of first degree manslaughter with a firearm.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-55a provides: “(a) Aperson is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Manslaughter in the first degree with a firearm is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment in accordance with subdivision (4) of section 53a-35a of which five years of the sentence imposed may not be suspended or reduced by the court.”

       The defendant also was charged with and convicted of: one count of criminal trespass in the third degree in violation of General Statutes § 53a-109 (a) (2); three counts of illegal hunting of deer with a firearm in violation of General Statutes § 26-86a (a), and Regs., Conn. State Agencies § 26-86a-6 (d); one count of illegal hunting of deer in violation of General Statutes §§ 26-27 (a), 26-82 (a); two counts of violation of hunting regulations in violation of General Statutes § 26-66, and Regs., Conn. State Agencies § 26-66-1 (e) and (r); and one count of hunting on a Sunday in violation of General Statutes § 26-73. In a part B information, the state alleged additionally that the defendant had been convicted previously of illegal hunting in violation of § 26-82. The manslaughter conviction is the only conviction at issue in this appeal.

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment, imposed for conviction of such felony.”
      Although it appears that the state charged the defendant with a violation of § 53-202k as a separate offense, the trial court treated § 53-202k as an enhancement statute only, based on this court,’s decision in State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997). The trial court found that the defendant had used a firearm in the commission of a class B felony in violation of § 53-202k, and applied the sentence enhancement to the sentence for the underlying manslaughter conviction.

       Although the privately owned property is wooded, there is a walking trail located, in part, within a utility right-of-way.

       Although a neighbor estimated hearing a gunshot at approximately 7:10 a.m., the police did not receive the telephone call from the defendant’s stepfather until 7:48 a.m., and did not arrive at the defendant’s house until 7:51 a.m.

       The defendant also received the foEowing sentences: (1) three months for one count of criminal trespass in violation of General Statutes § 53a-109 (a) (2); (2) six months and a $200 fine for each of three counts of iEegal hunting of deer with a firearm in violation of General Statutes § 26-86a (a), and Regs., Conn. State Agencies § 26-86a-6 (d); (3) one year and a $200 fine for one count of iEegal hunting of deer in violation of General Statutes §§ 26-27 and 26-82 (a), an enhanced sentence based on the defendant’s 1992 conviction of Elegal hunting of deer; sixty days for each of two counts of violation of hunting regulations in violation of General Statutes § 26-66, and Regs., Conn. State Agencies § 26-66-1 (e) and (r); sixty days for one count of hunting on a Sunday in violation of General Statutes § 26-73. The trial court ordered aE sentences to run concurrently.

       The defendant does not claim that the statute is unconstitutionally vague on its face.

       “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution.” Packer v. Board of Education, 246 Conn. 89, 98, 717 A.2d 117 (1998). The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .” Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .’’Due process “requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. . . . [This court has] equated vagueness analysis under our state constitution with the corresponding federal constitutional analysis.” (Citation omitted.) Packer v. Board of Education, supra, 99.

       The defendant offers No. 00-142 of the 2000 Public Acts (P.A. 00-142), entitled “An Act Concerning Hunting Safety,” which became effective on October 1, 2000, as an example of “constitutional fair warning to the effect of a governing statute in the case of a hunting accident,” because it “details a series of hunting offenses.” The defendant’s reliance on P.A. 00-142, however, is misplaced. First, “[d]ue process does not require statutes to provide a laundry list of prohibited conduct.” State v. Wilchinski, supra, 242 Conn. 224. Second, the defendant makes no claim that P.A. 00-142 actually governs his conduct in this case, and we fail to see how its enactment bears on the defendant’s vagueness challenge to § 53a-55 (a) (3). Finally, in the absence of clear legislative intent to the contrary, the existence of statutes proscribing a specific type of conduct does not preclude criminal prosecution for that conduct under other relevant statutes. State v. Bunkley, supra, 202 Conn. 638-41 (existence of statutes pertaining specifically to death caused by improper use of automobile did not preclude criminal prosecution under manslaughter statute).

       “The right not to be twice put in jeopardy is a fundamental guarantee of both the federal constitution; U.S. Const., amend. V; see also Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (federal double jeopardy clause applicable to states); and the [Connecticut] constitution. See, e.g., State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995) (right to protection against double jeopardy is implicit in due process guarantees of state constitution).” State v. Tate, 256 Conn. 262, 271 n.10, 773 A.2d 308 (2001).

       Manslaughter in the first degree carries a minimum sentence of one year incarceration and a maximum sentence of twenty years incarceration. General Statutes §§ 53a-55, 53a-35a (4). Manslaughter in the first degree with a firearm carries a minimum sentence of five years incarceration and a maximum sentence of forty years incarceration. General Statutes §§ 53a-55a, 53a-35a (4).

       The defendant relies on United States v. Blake, 59 F.3d 138, 139-40 (10th Cir. 1995), to support his claim that the trial court’s application of § 53-202k to § 53a-55a constituted impermissible double counting. Blake, however, construed the federal sentencing guidelines and, therefore, is inapposite to the present case. Id.

       General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the courta s follows . . . (4) for the class 13 felony of manslaughter in the first degree with a firearm under section 53a-55a, a term not less than five years nor more than forty years; (5) for a class B felony other than manslaughter in the first degree with a firearm under section 53a-55a, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-59(a)(1), 53a-59a, 53a-70a, 53a.-94a, 53a-101(a)(l) or 53a-134(a)(2), the term shall be not less than five years nor more than twenty years . . .

       The trial court relied on a decision of the Appellate Court, State v. Williams, 48 Conn. App. 361, 365-66 n.4, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998), in applying § 53-202k to the defendant’s split sentence. In claiming that this court should reverse the trial court, the defendant also contends that we should overrule the portion of Williams on which the trial court relied. We affirm the judgment of the trial court, but articulate no conclusion regarding the dicta in Williams. Id.

       At the conclusion of the state’s case, the trial court denied the defendant’s motion for judgment of acquittal on the manslaughter charge.

       At the conclusion of the evidence, both parties agreed to allow the court to consider the two lesser included offenses of first degree manslaughter, second degree manslaughter and negligent homicide.

       General Statutes § 53a-3 provides in relevant part: “Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
      “(13) Aperson acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation;
      “(14) A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation