text:
    Robert Rhodes v. City of Hartford et al.
    (12831)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued June 3
    decision released August 12, 1986

      Wesley W. Horton, with whom were Cynthia A. Blair and, on the brief, Stephen B. Goddard and Julé A. Crawford, for the appellant (plaintiff).

      Steven M. Sellers, deputy assistant state’s attorney, with whom were Saundra Kee and, on the brief, John M. Bailey, state’s attorney, for the appellees (defendants).
   Peters, C. J.

The sole issue on this appeal is a determination of the scope of General Statutes §§ 21-44 and 21-45, which regulate the business practices of pawnbrokers. In the face of possible criminal prosecution, the plaintiff Robert D. Rhodes, a licensed pawnbroker, sought a declaratory judgment to determine whether General Statutes §§ 21-44 and 21-45 apply to financing arrangements known as repurchase transactions. After a hearing, the trial court ruled that repurchase transactions do fall within the ambit of the two statutes. The plaintiff appeals from this judgment.

The underlying facts are not in dispute. In conducting a repurchase transaction, the plaintiff purchases an item from a customer at 60 percent of its fair market value and gives the customer an option to repurchase the item at a stipulated price and within a stipulated period of time, which is not less than fifteen days nor more than two months. He determines the repurchase price by adding 20 percent of the fair market value (which is 33V3 percent of the purchase price) each month to the purchase price. Upon delivering the item to the plaintiff, the customer signs and retains a copy of a document entitled “Repurchase Agreement,” which he must present to the plaintiff in order to repurchase the item. On those occasions on which the plaintiff lends money on a traditional pledge of pawned property, he lends the customer only half of the amount that would be available under a repurchase. Virtually all of the terms and conditions of these pawnbroking transactions are determined by the plaintiff.

General Statutes § 21-44 prescribes the maximum interest rates that pawnbrokers may charge on money they lend. General Statutes § 21-45 sets the minimum length of time that pawnbrokers must retain pledged personalty before it can be sold to the general public. At trial, the plaintiff claimed that these provisions, which by their express language regulate loans, do not apply to his repurchase transactions because repurchase transactions are not loans. The trial court rejected the plaintiffs contention. Labeling the repurchase transaction a subterfuge for a loan, and positing that “[o]ne should not be able to avoid a tax on shoes by calling shoes slippers,” the trial court held that General Statutes §§ 21-44 and 21-45 do apply to repurchase transactions. The plaintiff renews his claim on appeal. We find no error.

Before reaching the merits of this case, we must, as a preliminary matter, decide whether the trial court had subject matter jurisdiction to entertain this action for declaratory relief even though the plaintiff is not presently engaging in repurchase transactions. A declaratory judgment action is a special proceeding under General Statutes § 52-29 that is implemented by §§ 389 and 390 of the Practice Book. Kiszkiel v. Gwiazda, 174 Conn. 176, 180, 383 A.2d 1348 (1978). Section 390 (b) of the Practice Book conditions declaratory relief upon the existence of “an actual bona fide and substantial question or issue in dispute ... which requires settlement between the parties.” The need for settlement of the dispute must be viewed in light of the particular circumstances of each case. Kiszkiel v. Gwiazda, supra, 181. In this case, the plaintiffs complaint alleged, and the state admits, that the state had manifested its intention to prosecute him for violation of §§ 21-44 and 21-45. Because the plaintiff has been restricted in pursuing his livelihood, his dispute with the state raises a substantial question suitable for declaratory adjudication. Accordingly, we conclude that the trial court had jurisdiction to adjudicate this action.

Turning to the merits, we review the trial court’s construction of §§ 21-44 and 21-45 in light of well established principles that require us to ascertain and give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A Sutherland, Statutory Construction (4th Ed. 1984) § 45.05. When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, supra, 673; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, 673; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985); State v. Delafose, supra, 522; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980).

Examination of the language of §§ 21-44 and 21-45 reveals that neither statute plainly defines the pawnbroking activity to which it applies. Section 21-44 provides, in relevant part, that “[n]o pawnbroker or loan broker or person who loans money on the pledge of personal property shall take or receive, directly or indirectly, for the use of money loaned on personal property, any more” than the interest rates prescribed therein. Section 21-45, apparently referring to the same class of pawnbroking transactions alluded to in § 21-44, provides that “[n]o such lender shall sell or dispose of any personal property left with him in pledge for money loaned in less than six months from the day when the same is left in pledge as aforesaid . . . . ” In determining the applicability of these two sections, the central issue before us is, therefore, whether a pawnbroker who engages in a repurchase transaction is, for purposes of § 21-44, a pawnbroker who takes or receives, directly or indirectly, interest in return for the use of money he loans on the pledge of personal property.

The plaintiff claims that, because §§ 21-44 and 21-45 are penal in nature, we should construe their provisions strictly and resolve any ambiguity in his favor. We disagree. The plaintiff is correct in his assertion that the pawnbroking statutes have a penal component, as his own incipient prosecution for their violation demonstrates. See General Statutes § 21-47. We note, however, that although penal statutes are to be construed strictly; Nowak v. Nowak, 175 Conn. 112, 125, 394 A.2d 716 (1978); see State v. Cataudella, 159 Conn. 544, 555, 271 A.2d 99 (1970); Hollenbeck v. Getz, 63 Conn. 385, 387, 28 A. 519 (1893); we need not adopt the narrowest technical meaning of a criminal statute so as to disregard the context in which it exists and to frustrate its obvious legislative intent. State v. Kozlowski, supra; State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Moreover, the facts of this case do not warrant special deference to the rule of strict construction. The plaintiff no longer faces criminal charges. He brought this declaratory judgment action to test the scope of criminal liability created by §§ 21-44 and 21-45 and to determine whether he may lawfully resume his customary business practices. Since the plaintiff runs no immediate risk of criminal exposure, his case does not present as compelling a case for a rule of strict construction as it would if it arose in the context of a prosecution of a criminal defendant. Finally, the rule of strict construction must be balanced against the competing interest of effectuating the public policy of the pawnbroking laws as remedial statutes. See Borzencki v. Estate of Stakum, 195 Conn. 368, 383, 489 A.2d 341 (1985); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520, 461 A.2d 938 (1983); State v. Hurlburt, 82 Conn. 232, 236, 72 A. 1079 (1909).

The plaintiff urges us to hold that a pawnbroker’s involvement in a repurchase transaction does not constitute the taking or receiving, directly or indirectly, of interest in return for the use of money he loans on the pledge of personal property. In support of his argument, he claims that the language of § 21-44 limits its application to loans. Because a repurchase transaction takes the form of a sale with an option to repurchase rather than the form of a loan, he contends that repurchase transactions are beyond the scope of §§ 21-44 and 21-45. This reasoning, however, fails to take into account the fact that the statute expressly governs loans given in return for indirect, as well as direct, interest payments. By extending the statutes’ coverage to transactions involving the indirect payment of interest, the legislature indicated that it intended the statutes to regulate not only those transactions that take the classic form of a conventional pawnbroking loan, but also financing arrangements that, in substance if not in form, amount to the economic equivalents of such a loan. Accordingly, the statutes apply to any transaction, regardless of its label or form, in which a pawnbroker gives a customer money and, in return, receives the right to hold the customer’s property and the right to demand payment from the customer for the use of the money before allowing the customer to reclaim his property.

A comparison of repurchase transactions with conventional pawnbroking loans illustrates that the two modes of finance are equivalents for purposes of General Statutes §§ 21-44 and 21-45. In a typical pawnbroking loan, the pawnbroker lends money to his customer in return for a pledge of personal property. The customer can reclaim the pledged property by repaying the principal of the loan with interest. The pawnbroker may sell the property to the general public if the customer does not repay the loan within a predetermined period of time. In a repurchase transaction, the customer sells his property to the pawnbroker and retains an option to repurchase it within a specified period of time at a higher price. The difference between the repurchase price and the original sales price of the item amounts to a fee that the customer must pay for the use of the pawnbroker’s money. Whether or not the parties to the transaction label it as interest, this premium constitutes the type of indirect interest envisaged by the drafters of §§ 21-44 and 21-45. Because repurchase transactions satisfy the description of regulated financing arrangements contained in § 21-44, we conclude that pawnbrokers who engage in repurchase transactions are subject to the restrictions imposed by §§ 21-44 and 21-45.

Our conclusion comports with the remedial purpose of pawnbroking statutes. We have long recognized that pawnbroking is a business “peculiarly demanding special regulation.” Sinclair, Scott Co. v. Miller, 80 Conn. 303, 307, 68 A. 257 (1907); accord State v. Griffith, 83 Conn. 1, 74 A. 1068 (1910), aff'd, 218 U.S. 563, 31 S. Ct. 132, 54 L. Ed. 1151 (1910). In enacting these statutes, the legislature sought to protect impecunious borrowers from extortionate interest rates and oppressive financing terms that some pawnbrokers might otherwise impose. See State v. Hurlburt, supra, 236. At the time of the passage of the predecessors to General Statutes §§ 21-44 and 21-45, repurchase transactions were recognized as vehicles used by unscrupulous pawnbrokers to extract usurious interest rates from their customers. One early twentieth century commentator, in his comprehensive treatise on the development of the law of pawnbroking, observed: “The greatest evil of the small money lending business is caused throughout the United States by those ubiquitous individuals who assist persons in need through bills of sale, with agreement which includes a right to repurchase. Instead of the regular pawnbroker’s ticket there passes between the borrower and the money lender agreements, by means of which the latter expects to gain quicker and higher returns than if he conducted his business as a pawnbroker .... The money lender is in many cases a duly licensed pawnbroker whose transactions must be shown by means of tickets. But he conducts the transaction under the guise of a purchase with the right of repurchase agreement. This system permits him to evade all pawnbroking laws, and make a greater profit than if he charged the pawnbroker’s interest.” (Emphasis added.) S. Levine, A Treatise on the Law of Pawnbroking (1911) pp. 115-16. If we were to construe §§ 21-44 and 21-45 to exclude repurchase transactions from coverage as urged by the plaintiff, we would in effect leave such financing arrangements virtually unregulated.

When viewed alongside analogous statutes regulating consumer transactions and small loans, the restrictions governing the pawnbroking industry represent examples of a general policy designed to prevent overbearing lenders and commercial entrepreneurs from exploiting impecunious borrowers and consumers who lack bargaining power. Cf. Fairfield Credit Corporation v. Donnelly, 158 Conn. 543, 551, 264 A.2d 547 (1969). In the absence of any clear manifestation of a legislative intent to define pawnbroking transactions narrowly, and thereby to contradict the strong public policy that favors protection of those who must have recourse to pawnbrokers, we will not impute such a purpose to the legislature.

The plaintiff challenges this conclusion by comparing the language of § 21-39, a licensing statute for pawnbrokers that specifically states that repurchase transactions are subject to its provisions, with the language of §§ 21-44 and 21-45, which does not expressly mention repurchase transactions. He points out that in 1905, the legislature amended the predecessor to § 21-39 to incorporate a reference to repurchase transactions, but made no similar alteration in the predecessors to §§ 21-44 and 21-45. Arguing that the legislature would have also amended §§ 21-44 and 21-45 if it had intended these sections to apply to repurchase transactions, he cites the legislature’s failure to do so as compelling evidence that the statutes do not encompass repurchase agreements. We find the plaintiff’s contention unpersuasive.

There is no legislative history that explains why repurchase transactions are not expressly mentioned in §§ 21-44 and 21-45 when they do appear in § 21-39. It is likely that the legislature omitted such specific references because it believed that §§ 21-44 and 21-45, in addressing themselves to financial arrangements that call for the payment of indirect, as well as direct, interest in return for the use of money, already adequately indicated that they apply to such transactions.

We further note that the legislature manifested its intent, in General Statutes § 21-39 et seq., to regulate conduct that impinges on all aspects of pawnbroking. These statutes do not merely establish licensing requirements, interest rate restrictions and retention periods. They also make pawnbrokers accountable to city officials on a regular basis requiring, for example, that they periodically furnish business records and sworn statements which describe the transactions they have conducted. General Statutes §§ 21-41, 21-43. City officials thereby serve as industry watchdogs, responsible for scrutinizing the activities of pawnbrokers and guarding against any illegal practices. General Statutes § 21-42, furthermore, requires pawnbrokers to give each customer a receipt containing information about the customer and the item pawned or pledged. It would have been unreasonable for the legislature to have required pawnbrokers who conduct repurchase transactions to be licensed, without also requiring their compliance with these other pawnbroking statutes. We note that the plaintiff has failed to cite any prior instance in the last eighty years in which a repurchase transaction has been argued to fall outside of the regulatory scope of our pawnbroking statutes.

We therefore conclude that the trial court correctly held that repurchase transactions are subject to the restrictions contained in §§ 21-44 and 21-45.

There is no error.

In this opinion the other justices concurred.

       The plaintiff has temporarily ceased operating the pawnshop pending the court’s decision in this case.

       The plaintiff testified at trial that he assesses the fair market value of an item based upon his three and one-half years experience in the pawnbroking business.

       “[General Statutes] Sec. 21-44. rates of interest. No pawnbroker or loan broker or person who loans money on the pledge of personal property shall take or receive, directly or indirectly, for the use of money loaned on personal property, any more than the following rates: For the use of money amounting to fifteen dollars or less, five per cent per month or fraction thereof; for the use of money exceeding fifteen dollars in amount and not exceeding fifty dollars in amount, three per cent per month or fraction thereof; for the use of money exceeding fifty dollars in amount, two per cent per month or fraction thereof.”

       ‘‘[General-Statutes] Sec. 21-45. pledges to be kept six months. No such lender shall sell or dispose of any personal property left with him in pledge for money loaned in less than six months from the day when the same is left in pledge as aforesaid. All such property shall be sold or disposed of, at public or private sale, only after advertisement in a daily newspaper published in the town in which such lender carries on business, at least once two days before the date of the sale or sales, which advertisement shall state the numbers of the pledge tickets representing the property offered for sale, and the date or dates when such tickets were issued.”

       The state had in fact initiated a criminal prosecution against the defendant and had consented to dismissal of these charges only upon the plaintiff s representation that he would temporarily cease engaging in repurchase transactions and would pursue a declaratory judgment to determine the applicable scope of §§ 21-44 and 21-45.

       “[General Statutes] Sec. 21-47. penalties. Any person, corporation or partnership which engages in the business of a pawnbroker, or in any business described in section 21-39, unless licensed according to law, or after notice that its license has been revoked, or which violates any of the provisions of this chapter or neglects to keep a book in the English language or to make the entries therein as provided by law or refuses to allow the same to be inspected by the proper officers or receives an article of personal property by way of pawn or pledge from any minor, knowing or having reason to believe him to be a minor, shall be fined not more than fifty dollars for the first offense and not more than one hundred dollars for the second offense, and, for the third offense, shall be fined not more than five hundred dollars or imprisoned not more than six months or both, and also shall forfeit treble the amount loaned on the property so pledged to any person injured thereby who sues therefor.”

       See, e.g., General Statutes §§ 42-83 through 42-184, passim; §§ 21-2 through 21-100 passim; §§ 21a-l through 21a-346 passim.

       “The purpose of our Small Loan Act was to furnish an opportunity for borrowing, to persons of small means who might be in need of money and unable to obtain it to relieve their necessities, at ordinary commercial rates .... We may fairly assume legislative recognition of the fact that the privilege of loaning money at a rate of interest greatly in excess of the legal rate permitted in ordinary business transactions, naturally called for strict limitations upon the lender and for measures of protection to the borrower who was forced to make such agreements by the necessities of his situation.” Nicotera Loan Corporation v. Gallagher, 115 Conn. 102, 104-105, 160 A. 426 (1932). General Statutes § 36-233 (a) sets forth the maximum interest rates that may be charged by those licensed to make small loans, which are loans not exceeding five thousand dollars: “Sec. 36-233. charges, loan restrictions, (a) Every licensee under this chapter may loan any sum of money not exceeding five thousand dollars, excluding charges, and may charge, contract for and receive thereon charges at a rate not to exceed the following: (1) On any loan which does not exceed one thousand eight hundred dollars, excluding charges, or on any unsecured loan or on any loan secured only by credit life insurance, seventeen dollars per one hundred dollars on that part of the cash advance, not exceeding six hundred dollars, and eleven dollars per one hundred dollars on any remainder when the loan is made payable over a period of one year, and proportionately at those rates over a longer or shorter term of loan; (2) on a loan which exceeds one thousand eight hundred dollars, excluding charges, and which is secured by property other than credit life insurance, eleven dollars per one hundred dollars on the entire cash advance when the loan is made payable over a period of one year, and proportionately at that rate over a longer or shorter term of loan. Such charges shall be computed at the time the loan is made on the full amount of the cash advance for the full term of the loan contract, notwithstanding any agreement to repay the loan in instalments. Such charges shall be added to the cash advance and the resulting sum may become the face amount of the note. All payments made on account of any loan, except those applied to default and deferment charges, shall be deemed to be applied to the unpaid instalments in the order in which they are due.”
      These interest rate restrictions, read together with the restrictions set forth in § 21-44, illustrate that by legislative design low income borrowers were not to be charged any more than the prescribed interest rates in any type of small loan transaction, including the pawn transaction. The interest rates charged by the plaintiff, which exceed both the rates established in the pawnbroking statutes and in the Small Loan Act, are well above the rates which the legislature considers reasonable in either context.
      Moreover, the language of the Small Loan Act, which also refers to interest charged “directly or indirectly,” provides additional evidence that the clause was used in § 21-44 as an all-encompassing term designed to include virtually any transaction in which a pawnbroker takes or receives, directly or indirectly, excess interest on a loan. General Statutes § 36-243 provides, in relevant part: “Sec. 36-243. charge of greater than legal interest. No person, partnership, association or corporation, except as authorized by the provisions of this chapter, shall, directly or indirectly, charge, contract for or receive any interest, charge or consideration greater than twelve per cent per annum upon the loan, use or'forbearance of money or credit of the amount or value of five thousand dollars or less. The provisions of this section shall apply to any person who, as security for any such loan, use or forbearance of money or credit, makes a pretended purchase of property from any person and permits the owner or pledgor to retain the possession thereof, or who, by any device or pretense of charging for his services or otherwise, seeks to obtain a greater compensation than twelve per cent per annum. . . .”

       “[General Statutes] Sec. 21-39. license required, loans on intangible property EXCEPTED. No person, corporation or partnership shall, in any city or town of this state, engage in or carry on the business of loaning money upon deposits or pledges of wearing apparel, jewelry, ornaments, household goods or other personal property, or of purchasing such property on condition of selling the same back again at a stipulated price, unless such person, corporation or partnership is licensed as a pawnbroker; but the provisions of this chapter shall apply only if such property is deposited with a lender, and shall not apply to loans made upon stock, bonds, notes or other written or printed evidence of ownership of property or of indebtedness to the holder or owner of any such securities.”
      General Statutes § 21-40 contains similar language: “issuance of licenses, fees. The selectmen of any town and the chief of police of any city may grant licenses to suitable persons to be pawnbrokers and to carry on the business of lending money on the pledge of personal property, or of purchasing such property on condition of selling it back again at a stipulated price, in such town or city respectively, and may revoke such licenses for cause; but the selectmen shall not grant such licenses for the carrying on of such business within the limits of any city. The person so licensed shall pay, for the benefit of any such city or town, respectively, to the authority granting such license a license fee of fifty dollars, and twenty-five dollars per year thereafter for renewal of such license, and shall, at the time of receiving such license, file, with the mayor of such city or the first selectman of such town, a bond in such city or town, with competent surety in the penal sum of two thousand dollars, to be approved by such licensing authority, and conditioned for the faithful performance of the duties and obligations pertaining to the business so licensed. Each such license shall designate the place where such business is to be carried on and shall continue one year unless sooner revoked.”

       Prior to 1905, General Statutes (Rev. to 1902) § 4655, the predecessor to § 21-39, provided: “§ 4655. licenses and fees. The selectman of any town, and the chief of police of any city, may grant licenses to suitable persons to be pawnbrokers and to carry on the business of loaning money on the pledge of personal property, in such town or city respectively, and may revoke such licenses for cause; but selectmen shall not grant such licenses for the carrying on of such business within the limits of any city. The person so licensed shall pay for the benefit of any such city or town respectively, to the authority granting such license not less than ten nor more than fifty dollars therefor, to be determined by the authority granting the license. Every license granted under this section shall designate the place where such business is to be carried on, and shall continue one year unless sooner revoked.”
      The statute, as amended in 1905, provided: “Be it enacted by the Senate andHouse of Representatives in General Assembly convened: “Section 1. No person, corporation, or partnership shall, in any city or town of this state, engage in or carry on the business of loaning money upon deposits or pledges of wearing apparel, jewelry, ornaments, household goods, or other personal property, or of purchasing such property on condition of selling the same back again at a stipulated price, unless such person, corporation, or partnership is licensed as a pawnbroker; but the provisions of this act shall apply only if such property is deposited with a lender, and shall not apply to loans made upon stock, bonds, notes, or other written or printed evidence of ownership of property or of indebtedness to the holder or owner of any such securities.
      “Sec. 2. The selectmen of any town, and the chief of police of any city, may grant licenses to suitable persons to be pawnbrokers and to carry on the business of lending money on the pledge of personal property, or of purchasing such property on condition of selling it back again at a stipulated price, in such town or city respectively, and may revoke such licenses for cause; but the selectmen shall not grant such licenses for the carrying on of such business within the limits of any city. The person so licensed shall pay, for the benefit of any such city or town respectively, to the authority granting such license a license fee of fifty dollars, and shall, at the time of receiving such license, file with the mayor of such city, or the first selectman of such town, a bond to such city or town, with competent surety, in the penal sum of two thousand dollars, to be approved by such licensing authority, and conditioned for the faithful performance of the duties and obligations pertaining to the business so licensed. Every license granted under this section shall designate the place where such business is to be carried on, and shall continue one year unless sooner revoked.” Public Acts 1905, c. 235, §§ 1 and 2.

       Prior to 1905, the predecessors to General Statutes §§ 21-44 and 21-45 appeared as follows: “[General Statutes] § 4659. rate of interest limited. Pawnbrokers and loanbrokers, and all persons who loan money on the pledge of personal property, are prohibited from taking or receiving, directly or indirectly, any more than at the rate of twenty-five per cent, per annum for the use of money loaned on personal property.”
      “[General Statutes] § 4660. pledges to be kept six months. It shall be unlawful for any such lender to sell or dispose of any personal property left with him in pledge for money loaned in less than six months from the day when the same is left in pledge as aforesaid.”
      The 1905 legislation amended these statutes to provide: “Sec. 7. Pawnbrokers and loan brokers, and all persons who loan money on the pledge of personal property, are prohibited from taking or receiving directly or indirectly, for the use of money loaned on personal property, any more than the following rates: for the use of money amounting to fifteen dollars or under, five per centum per month, or fraction thereof; for the use of money exceeding fifteen dollars in amount and not exceeding fifty dollars in amount, three per centum per month, or fraction thereof; for the use of money exceeding fifty dollars in amount, two per centum per month, or fraction thereof.
      “Sec. 8. It shall be unlawful for any such lender to sell or dispose of any personal property left with him in pledge for money loaned in less than six months from the day when the same is left in pledge as aforesaid. All such property shall be sold or disposed of, at public or private sale, only after advertisement in a daily newspaper published in the town in which the said lender does business, at least once two days before the date of sale or sales, which said advertisement shall state the numbers of the pledge tickets representing the property which shall be offered for sale, and the date or dates when said tickets were issued.” Public Acts 1905, c. 235 §§ 7 and 8.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Arthur R. Barlow v. Raymond M. Lopes, Commissioner of Correction
    (12686)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued June 3
    decision released August 12, 1986

      Elizabeth M. Inkster, special public defender, for the appellant (petitioner).

      AmoldM. Schwolsky, assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, state’s attorney, for the appellee (respondent).
   Santaniello, J.

The sole issue on this appeal is whether, under the standards established in Staton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978), the petitioner knowingly, intelligently and voluntarily waived his right to appeal. After a jury trial, the petitioner, Arthur R. Barlow, was convicted of second degree assault in violation of General Statutes § 53a-60 (a) (2). Subsequent to his conviction but prior to sentencing, he agreed that he would plead guilty under the Alford doctrine to two unrelated charges and would waive his right to appeal the assault conviction in return for an entry of nolle prosequi on additional charges and the state’s attorney’s recommendation that he receive an effective sentence of six years imprisonment. The trial court accepted his pleas, acknowledged his waiver of the right to appeal and sentenced him in accordance with the plea agreement. While in the custody of the commissioner of correction, he filed a petition for a writ of habeas corpus with the Superior Court, alleging, inter alia, that he had received ineffective assistance of counsel during his trial for assault and that he had not deliberately bypassed a direct appeal or foregone his right to contest his conviction because he had not knowingly, intelligently and voluntarily waived his right to appeal. The court, Smith, J., denied the petition on the ground that he had deliberately bypassed his right to appeal and rejected his claim that his waiver under the plea agreement was invalid. He appeals from the judgment denying his petition. We find error and remand for further proceedings.

The relevant facts and procedural history of this case are essentially undisputed. After a jury trial before Judge Corrigan, the petitioner on October 12, 1983, was convicted of second degree assault. At the time, there were several other unrelated charges pending against him including attempted arson in the first degree, one count of carrying a dangerous weapon and various misdemeanor charges. The petitioner was defended at trial by privately retained counsel, Michael Peck, but was represented by appointed counsel, Joseph Rubin, in the other matters. Prior to sentencing on the assault conviction, Rubin and Peek negotiated a plea bargain with the state on behalf of the petitioner in which the state’s attorney agreed to nolle many of the misdemeanor charges and recommend a total effective sentence of six years, in exchange for the petitioner’s plea of guilty to one count of reckless endangerment and one count of carrying a dangerous weapon, and the petitioner’s waiver of his right to appeal the assault conviction. The petitioner never discussed with Peck or Rubin the possible merits of an appeal from the assault conviction, but was advised by Rubin that, regardless of its merits, it was in his best interest to accept the plea bargain.

On the morning of November 18,1983, the petitioner appeared before the court, Kline, J., for the purpose of entering his pleas in accordance with the agreement. The court first canvassed the petitioner in connection with the guilty pleas and then inquired into whether he knowingly, intelligently and voluntarily waived his right to appeal. Only Rubin appeared on behalf of the petitioner at this proceeding. The petitioner indicated that he had some reservations about giving up his right to appeal, but that, overall, the agreement was “fair and reasonable.” The court agreed that the bargain was favorable and explained to the petitioner that, in all probability, by the time his appeal is heard, he would already have served his sentence. The court opined: “We are just looking at the practicalities of the situation rather than your — when you surrender these legal rights and these are jealously guarded legal rights; and I would not want you to deprive yourself of them; except as a practical matter the question could be— very well could be moot by the time you—the appeal was perfected and the Supreme Court rendered a decision in this case.” The court also stated that: “I understand that you are unhappy with the result that the jury brought in because you felt you were innocent, and you pled not guilty; but your appeal really isn’t what the jury’s verdict was, but any questions or errors of law that arose during the case as it was tried and any errors that might have been made on the judge’s part. And as a result, you understand that’s what you’re appealing, questions of law, not questions of fact. Questions of fact are determined by the jury and the courts have no way of—of setting those aside unless they’re completely out of line with the evidence that came in during the course of trial.” The court thereafter accepted the pleas of guilty and found that the petitioner’s “waiver of the right of appeal [was] made knowingly, intelligently and voluntarily.”

On the afternoon of November 18, 1983, the petitioner appeared before Judge Corrigan for sentencing. The court accepted Judge Kline’s earlier findings as to the plea agreement and the waiver of the right to appeal and sentenced the petitioner in accordance with the state’s attorney’s recommendations. No direct appeal was taken thereafter.

A petition for a writ of habeas corpus was filed on December 14, 1983, in which the petitioner alleged, inter alia, that he had received ineffective assistance of counsel during his trial for assault and that the plea agreement was invalid because he had not knowingly, intelligently and voluntarily waived his right to appeal. The petitioner requested a new trial or, in the alternative, the right to appeal the conviction directly. After reviewing the transcripts of the proceedings before Judge Kline and Judge Corrigan, the habeas court denied the petition. Focusing on the facts that the petitioner was well educated and articulate, and that, under the circumstances, the plea bargain was very favorable, the court found that, even though not advised on the possible merits of an appeal, the petitioner had knowingly, intelligently and voluntarily waived his right to appeal.

After certification, the petitioner appealed from the judgment of the habeas court. He claims that the court erred in denying his petition, arguing that the court’s finding of waiver was clearly erroneous under the principles established by this court in Staton v. Warden, supra. See Practice Book § 3060D. We agree.

It is a well established principle of appellate procedure that a petitioner for a writ of habeas corpus must allege and prove in the trial court that there has not been a deliberate bypass of the orderly procedure of a direct appeal to this court. D’Amico v. Manson, 193 Conn, 144, 146, 476 A.2d 543 (1984); Turcio v. Manson, 186 Conn. 1, 3, 439 A.2d 437 (1982). A habeas court’s findings on this issue ordinarily would, if not clearly erroneous, preclude a petitioner’s resort to habeas corpus in respect to any claims which could have been raised on appeal. McClain v. Manson, 183 Conn. 418, 433, 439 A.2d 430 (1981). “This principle has been modified, however, to the extent of requiring that the record before us must disclose some reasonable basis for concluding that a convicted person has intelligently, understandingly and voluntarily waived his statutory right to appeal. Staton v. Warden, [supra, 335.]” D’Amico v. Manson, supra, 146-47.

The habeas court recognized and the parties agree that the validity of the waiver is governed by the principles established by this court in Staton v. Warden, supra. Staton is a case remarkably similar to the one at bar, involving a habeas petition brought by a defendant convicted of robbery in the third degree. The defendant entered into a plea agreement with the state in which he bargained to withdraw his appeal of the robbery conviction and plead guilty to two other charges in return for favorable recommendations from the state’s attorney at sentencing. The defendant petitioned for the reinstatement of his right to appeal but the habeas court denied the request. On appeal from the judgment denying the petition, we declined to adopt the strict rule, followed by some courts, that the state cannot under any circumstances negotiate with a defendant concerning the right to appeal. Id., 333; see State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979); People v. Butler, 43 Mich. App. 270, 204 N.W.2d 325 (1972); People v. Ramos, 30 App. Div. 2d 848, 292 N.Y.S.2d 938 (1968). We did recognize, however, that a defendant’s statutory right to appeal is fundamental and must be “jealously protected”; Staton v. Warden, supra, 334; see also Coppedge v. United States, 369 U.S. 438, 455, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962) (Stewart, J., concurring); D’Amico v. Manson, supra, 147; Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harv. L. Rev. 441, 453 (1963); and held that “[s]ince a criminal defendant who decides not to appeal from a judgment of conviction in effect concedes the validity of that judgment and insulates the conviction against appellate review, his decision to [waive his right to] appeal pursuant to a plea bargaining arrangement must be carefully examined. A waiver is defined as ‘an intentional relinquishment or abandonment of a known right or privilege’; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1416 [1938]; Talton v. Warden, 171 Conn. 378, 385, 370 A.2d 965 [1976]; and the right of appeal should not be considered as having been waived or abandoned except where it is clearly established that such is the case. McKinney v. United States, 403 F.2d 57, 59 (5th Cir. [1968]).” Staton v. Warden, supra, 334-35; see also D’Amico v. Manson, supra, 148; Turcio v. Manson, supra, 3; McClain v. Manson, supra, 438 n.15.

In order to sustain the finding of the court below then, the record must affirmatively disclose that the petitioner knowingly, intelligently and voluntarily waived his right to appeal. Staton v. Warden, supra, 335. When determining whether the waiver of appellate rights was valid, the reviewing court should consider the facts and circumstances of the particular case, including the intelligence, background and experience of the petitioner; McClain v. Manson, supra, 432; see Johnson v. Zerbst, supra, 464; whether he was fully apprised of his right to appeal and the consequences of the abandonment of that right; D’Amico v. Manson, supra, 149-50; Staton v. Warden, supra, 336; see U.S. ex rel. Amuso v. LaVallee, 291 F. Sup. 383, 384-85 (E.D.N.Y. 1968); People v. Bailey, 1 Cal. 3d 180, 186-87, 460 P.2d 974, 81 Cal. Rptr. 774 (1969); People v. Jasper, 107 Misc. 2d 992, 994, 436 N.Y.S.2d 185 (1981); and whether he was advised concerning the possible merits of an appeal. Staton v. Warden, supra, 335; see Paulsen v. Manson, 193 Conn. 333, 341, 476 A.2d 1057 (1984); see generally annot., 89 A.L.R.3d 864, § 3; Bond, Plea Bargaining and Guilty Pleas (2d Ed. 1982) § 5.14. We have reviewed the record in this case in accordance with these criteria and conclude that there is insufficient evidence to support the habeas court’s finding of waiver.

The court below openly acknowledged that the petitioner had not been advised on the possible merits of an appeal but the court nevertheless held that the waiver was effective without such advice or understanding. This conclusion is clearly inconsistent with the standard established in Staton that “an agreement to waive appellate rights joined with a claim of innocence should not be accepted as a voluntary and intelligent choice until the court presented with the plea bargaining arrangement has inquired into and sought to resolve the conflict between the waiver of appeal and the claim of innocence.” Staton v. Warden, supra, 335. We suggested in Staton that in some cases a report must be filed with the court to provide it with enough information to question the defendant adequately on his knowledge of the relative merits of the appeal. Indubitably, the import of our decision was to require that the defendant be fully informed as to the possible merits of an appeal. As the United States Supreme Court stated in McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), a waiver “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” See also State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). In the case of a waiver of appellate rights, a convicted defendant cannot knowingly, intelligently and voluntarily waive his right to appeal without first being informed as to the likelihood of success on appeal. The trial court is obligated to ensure that the defendant has been fully advised by counsel on an appeal’s possible merits. Because this important element was lacking in this case, we must conclude that the waiver was invalid.

Moreover, our review of the record reveals that the petitioner was misled by the trial court when it advised him on the relative “practicalities” of an appeal. Since, as noted above, “a decision to waive one’s statutory right to appeal cannot be said to be knowingly, voluntarily and intelligently made if based upon a misapprehension as to the effect of this action; see People v. Bailey, [supra]; prior to the acceptance of an agreement to waive an appeal pursuant to a plea bargaining arrangement, care should be taken to inform the accused of the appellate rights to which he is entitled and to the consequences of this decision.” Staton v. Warden, supra, 336. The trial court in this case told the petitioner that an appeal “very well could be moot by the time . . . the appeal was perfected . . . .”* ** The court, in essence, told the petitioner that an appeal would be meaningless because he would have served his time before the appeal was heard. This advice was clearly incorrect. It is well established that since collateral legal disabilities are imposed as a matter of law because of a criminal conviction, a case will not be declared moot even where the sentence has been fully served. Sibron v. New York, 392 U.S. 40, 53-57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Shays v. Local Grievance Committee, 197 Conn. 566, 572 n.4, 499 A.2d 1158 (1985); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974). The collateral consequences of a conviction are legion: subsequent convictions might, as a result, carry heavier penalties and a wide range of civil rights might be affected, including a defendant’s eligibility to hold public office. See Sibron v. New York, supra, 55-56; United States v. Morgan, 346 U.S. 502, 512-13, 74 S. Ct. 247, 98 L. Ed. 248 (1954). The court, in making the statements it did without alerting the petitioner to the potential collateral consequences of the conviction, misinformed him as to the desirability of an appeal and, thus, inadequately canvassed him on the waiver of his appellate rights.

The habeas court rested its finding of waiver on two grounds: the background of the petitioner and the overall favor ability of the plea bargain. While the experience and education of the petitioner were proper factors for the court to consider, there can be no valid waiver without full and accurate information as to the potential merits of an appeal and the consequences of foregoing that right. As to the reasonableness of the plea arrangement, we recognize that the better the bargain, the more likely the petitioner would voluntarily have waived his right to appeal. Such a bargaining process cannot, however, displace the requirement that the petitioner be fully informed so that his choice to bargain away his right of appeal is made knowingly and intelligently.

The record does not affirmatively disclose that the petitioner knowingly, intelligently and voluntarily waived his right to appeal and, therefore, the court below erred in denying the petition for. a writ of habeas corpus. The case must be remanded to give the petitioner the opportunity to present his claim of ineffective assistance of counsel. The petitioner is also free to appeal his conviction for assault directly.

There is error, the judgment is set aside, and the case is remanded for further proceedings.

In this opinion, Peters, C. J., Dannehy and Callahan, Js., concurred.

Healey, J., concurred in the result.

        North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner was in custody when he filed his petition for habeas corpus. He has since been discharged but his appeal is not moot. “In attacking the legality of his conviction, the petitioner has stated a claim that survives his release from incarceration and parole. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).” Herbert v. Manson, 199 Conn. 143, 144 n.l, 506 A.2d 98 (1986).

       Because we find the waiver invalid on the grounds that the defendant was not advised at all on the possible merits of an appeal and was inadequately canvassed by the court on the issue, we need not decide whether a report similar to an Anders brief should have been filed. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We do note, however, that the suggestion in Staton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978), that a report be filed, may have been included because the defendant’s counsel at trial was a public defender who had advised the trial court that, in his opinion, there was no legal basis for taking an appeal. Id., 335.

       The full text of the court’s comments is as follows:
      “The Court: Okay. Before I can accept the plea, Mr. Barlow, since there is a part of the recommended sentence, was part of the plea bargain, was your waiver of your right to appeal, I want to make sure you’re giving up that right voluntarily, knowingly and intelligently. Because that’s a very jealously guarded right that all defendants have.
      ‘ ‘Now, my understanding is that you have put in quite a bit of time already in this particular case in lieu of bond, and that even if you get a five year sentence, plus a year in this case, six years, with the time you’ve already served and with your good time that you would be entitled to, that there’s a strong possibility that your time served in total will probably not exceed the time it might take you to effect the appeal. And, therefore, as a matter of practicality, you’re not really giving anything up because—because of the time constraints that you will have, the time you’ll have left to serve if you take into effect—into consideration all the good time and stuff that you’ve probably—and the time spent in lieu of bond you already have coming to you. Is that correct? That’s my understanding.
      “The Defendant: Yes. Well, that was part of the agreement, your Honor.
      “The Court: Yeah.
      “The Defendant: I did have some reservations about giving up my appeal; but as—as discussed—
      “The Court: As a practical matter—
      “The Defendant: As a practical matter he indicated that it would be— possibility that the appeal would be moot after I had served and it wouldn’t—
      “The Court: Yeah.
      “The Defendant: —probably be effective.
      “Attorney Rubin: I want to clarify. I don’t want to mean legally or technically moot. I mean as a practical matter, wouldn’t be of much point.
      “The Court: We are just looking at the practicalities of the situation rather than your—when you surrender these legal rights and these are jealously guarded legal rights; and I would not want you to deprive yourself of them; except as a practical matter the question could be—very well could be moot by the time you—the appeal was perfected and the Supreme Court rendered a decision in this case. And that’s—Is that correct? That’s your understanding?
      “The Defendant: Yes, that was my understanding, your Honor.
      “The Court: All right. Now, I just want to make sure you understand what the right of appeal is. I understand that you are unhappy with the result that the jury brought in because you felt you were innocent, and you pled not guilty; but your appeal really isn’t what the jury’s verdict was, but any questions or errors of law that arose during the case as it was tried and any errors that might have been made on the judge’s part. And as a result, you understand that’s what you’re appealing, questions of law, not questions of a fact. Questions of fact are determined by the jury and the courts have no way of—of setting those aside unless they’re completely out of line with the evidence that came in during the course of trial. So, you understand that’s what you’re giving up.
      “The Defendant: Yes, sir.
      “The Court: Okay. And you’re giving that up voluntarily and knowingly and willfully, right?
      “The Court: All right. Either of you gentlemen know why the pleas of guilty should not be accepted?
      “Attorney O’Connor: No, sir.
      “Attorney Rubin: No, sir, I don’t. Your Honor, I want to add something for clarification.
      “The Court: Sure, go ahead.
      “Attorney Rubin: I don’t quarrel with what the Court has said about the waiver of right of appeal; but there’s something else I think should be added. In addition to the reasons the Court mentioned about why Mr. Barlow is accepting this agreement and giving up his right of appeal, an additional reason is that he feels that the overall offer is a fair and reasonable—well, is the best he’s going to get. And in light of that, that’s another reason he wants to accept it, the agreement.
      “The Court: Well, yeah. That’s why he’s taking the whole plea bargain.”

       We recognize that the effect of our decision invalidates the plea agreement between the petitioner and the state, and exposes the petitioner to the risk of further criminal prosecution. Our judgment, however, only directly affects the habeas proceedings concerning the petitioner’s conviction for assault and the state must take further action on those charges affected by the agreement if their status is to be altered.


author: Shea, J.

text:
    Ronald G. Sutton v. Raymond M. Lopes, Commissioner of Correction John J. McCarthy v. Raymond M. Lopes, Commissioner of Correction
    (12904)
    (12905)
    Peters, C. J., Shea, Dannehy, Callahan and Stoughton, Js.
    Argued June 11
    decision released August 12, 1986

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent in both cases).

      Joan Leonard, assistant public defender, for the appellees (petitioner in each case).
   Shea, J.

The sole issue on these combined appeals is whether convicted prisoners are entitled to receive credit under both General Statutes § 18-97 and General Statutes § 18-98 for the same presentence jail time and thus obtain an effective sentence reduction of twice the number of days spent in confinement prior to the imposition of sentence. Each petitioner, being unable to obtain bail, was confined in a community correctional center under a mittimus prior to sentencing. The habeas court ordered the respondent commissioner of correction (commissioner) to credit each petitioner with presentence jail time pursuant to § 18-98, which entitles a person who has been denied bail or has been unable to obtain bail to a commutation of his sentence by the number of presentence days that he spent in a community correctional center. The petitioners had already received credit for the same presentence time pursuant to § 18-97, which entitles a person to jail time credit for any presentence days spent in custody under a mit-timus.

In their stipulation of facts, the parties in both cases summarized the respective procedural histories. The petitioner Ronald G. Sutton was arrested on June 22, 1979, and was incarcerated pursuant to a mittimus and also because of his failure to obtain bail. On July 7, 1981, he pleaded guilty to the offenses of sexual assault in the first degree; General Statutes § 53a-70; kidnapping in the second degree; General Statutes § 53a-94a; and threatening; General Statutes § 53a-62; as charged in the state’s substitute information. After the petitioner had been sentenced, the trial court granted his petition for a writ of habeas corpus, held the sentences void, and ordered a new trial. At the ensuing trial, the jury found the petitioner guilty on all three counts of the substitute information, and the court resentenced him. At the time he was resentenced, the court awarded the petitioner credit for presentence jail time served under a mittimus, pursuant to General Statutes § 18-97.

The petitioner John J. McCarthy was arrested on August 5,1980, and was jailed pursuant to a mittimus and also because of his failure to obtain bail. He was convicted of multiple crimes of burglary and larceny and sentenced on June 26, 1981. The commissioner credited the petitioner with his presentence jail time served under the mittimus, pursuant to General Statutes § 18-97.

In the petitions for writs of habeas corpus presently before us, the petitioners challenged the commissioner’s refusal to credit them with presentence jail time pursuant to General Statutes § 18-98, in addition to the credit already received for the same presentence jail time under General Statutes § 18-97. Petitioners Sutton and McCarthy claimed they were entitled to credit for 796 and 325 presentence days, respectively, for time spent in a community correctional center while they were unable to obtain bail. The trial court, Barry, J., finding the language of §§ 18-97 and 18-98 to be plain and unambiguous, held that the petitioners were entitled to the additional credit they sought because their factual situations came within the precise language of each statute. We find error in the granting of the petitions.

The proper application of §§ 18-97 and 18-98 requires us to reconcile a number of basic principles of statutory construction. Our fundamental objective in construing a statute is to carry out the apparent intent of the legislature. Caulkins v. Petrillo, 200 Conn. 713, 716-17, 513 A.2d 43 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Delevieleuse v. Manson, 184 Conn. 434, 438-39, 439 A.2d 1055 (1981); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). Accordingly, we have declined to “read into the-terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result”; Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956); and have consistently applied statutes “ ‘without reference to whether we think [they] would have been or could be improved by the inclusion of other provisions.’ ” Houston v. Warden, 169 Conn. 247, 252, 363 A.2d 121 (1975), quoting Murphy v. Way, 107 Conn. 633, 639, 141 A. 858 (1928).

Both §§ 18-97 and 18-98 provide presentence jail credit to arrestees detained under different, yet precisely defined, circumstances. We have, therefore, refused on many occasions to delve into the actual intent of the legislature with respect to these statutes, holding that each statute was plain and unambiguous on its face. Johnson v. Manson, supra, 314; Delevieleuse v. Manson, supra, 438; Houston v. Warden, supra, 251; Holmquist v. Manson, 168 Conn. 389, 392, 362 A.2d 971 (1975); Mancinone v. Warden, 162 Conn. 430, 439, 294 A.2d 564 (1972). While we have determined that each statute, when read separately, is clear and unambiguous, we have not resolved the issue, now raised, of whether they were intended to apply cumulatively to an arrestee who qualifies for credit under each statute, as the habeas court held. Because the statutes are silent upon the subject of alternative or cumulative application, they are ambiguous with respect to this issue and we are compelled to look beyond their words to determine the intent of the legislature. State v. Kozlowski, supra, 674; Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984).

Although we must presume that the legislature intended to enact one consistent body of law; Keogh v. Bridgeport, 187 Conn. 53, 59, 444 A.2d 225 (1982); and that it knew of the existence of two bills on the same general subject, both having been raised during the same legislative session; Farricielli v. Personnel Appeal Board, 186 Conn. 198, 205, 440 A.2d 286 (1982); there is no indication in the legislative history of the statutes as to whether they were intended to apply alternatively or cumulatively. We look, therefore, to the practice of the department of correction in administering these statutes and in calculating presentence jail time credit.

While it is the province of the courts and not the administrative agency to expound and apply the governing principles of law; Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 144, 509 A.2d 1050 (1986); Wilson v. FOIC, 181 Conn. 324, 342-43, 435 A.2d 353 (1980); this court has accorded considerable deference to the construction given a statute by the administrative agency charged with its enforcement, particularly when the agency has consistently followed its construction over a long period of time. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199 (1986); Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) (Loiselle, J., concurring) cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Burwell v. Board of Selectmen, 178 Conn. 509, 518, 423 A.2d 156 (1979). The habeas court, in its memorandum of decision, was “mindful of the seventeen year practice of the department of correction to apply these statutes alternatively, one to the exclusion of the other.” We view this established procedure as according with the more logical interpretation of the statutes, presumably the construction contemplated by the legislature. We conceive of no rational basis, nor have the petitioners suggested any, upon which the legislature could have intended to distinguish between arrestees confined for the same period of time prior to sentencing who are held both because of inability to obtain bail and because of a mittimus and those who fit under only one of these circumstances.

This court has traditionally eschewed construction of statutory language that leads to absurd results or thwarts its manifest purpose. State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985); State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985); Frazier v. Manson, 176 Conn. 638, 643-44, 410 A.2d 475 (1979); Milano v. Warden, 166 Conn. 178, 187, 348 A.2d 590 (1974); see Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed,” 3 Vand. L. Rev. 395, 401 (1950). The law clearly favors a rational statutory construction and we must presume that the legislature intended a sensible result. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985). The construction of §§ 18-97 and 18-98 offered by the petitioners and adopted by the habeas court would reward a prisoner, fortunate enough to fall within the guidelines of both statutes, with double presentence credit upon his sentence. It would be bizarre to credit a pretrial detainee, unable to make bail, for presentence time in jail at twice the rate allowed for time served after sentencing. It is more reasonable to conclude that the legislature enacted §§ 18-97 and 18-98 as alternative mechanisms in order to ensure that all those detained in jail prior to sentence, whether pursuant to a mittimus or because of inability to make bail, earn credit for time served before sentence to the same extent as for time served after sentence has been imposed.

We further note that under General Statutes §§ 54-64a and 54-64b every arrested person unable to make bail or arrested for a crime which is not bailable is ordinarily committed to a community correctional center pursuant to a mittimus. In light of this statutory requirement, every arrestee who is not released on bail will satisfy the requirements of both §§ 18-97 and 18-98 and be entitled to double jail time credit under the construction of the statutes adopted by the trial court. This extraordinary consequence, doubling the presentence credit for prisoners, could hardly have been intended and further buttresses our conclusion that the petitioners’ construction of the statutes is untenable.

Additionally, in Holmquist v. Manson, supra, 393-94, we recognized that “the purpose of the ‘jail-time’ statutes is to give recognition to the period of presentence time served and to permit the prisoner, in effect, to commence serving his sentence from the time he was compelled to remain in custody due to a mittimus (§ 18-97) or because of the court’s refusal to allow bail or the defendant’s inability to raise bail (§ 18-98).” (Emphasis added.) Obviously, interpreting the statutes to allow double credit for the same sentence would not only allow an arrestee to begin serving his sentence from the time of his arrest, but would eventually result in a shorter period of incarceration than if the detainee had made bail. Again, this result defies common sense.

Consequently, in light of the inveterate practice of the department of correction in calculating jail time credit and because the offered construction of the statutes leads to what we view as a bizarre result, we conclude that §§ 18-97 and 18-98 cannot be applied cumulatively to the same sentence.

There is error, the judgments are set aside and the cases are remanded with direction to render judgments denying the petitions for habeas corpus.

In this opinion the other justices concurred.

       In State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986), this court concluded that the new sentences, longer than the first, were constitutionally infirm because the record did not demonstrate “that the increased sentences were based on objective information concerning identifiable conduct occurring subsequent to the original sentencing”; id., 504; in accordance with the standard set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). We remanded the case for further resentencing. State v. Sutton, supra, 505.

       “[General Statutes] Sec. 18-97. confinement under a mittimus: presentence confinement credit prior TO .July 1,1981. Any person receiving a fine or sentence to a correctional institution or a community correctional center for an offense committed prior to July 1, 1981, shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit upon the order in the case of a fine, and upon the mittimus in the case of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. In the case of a fine each credit day shall be computed at the rate of ten dollars. In no event shall credit be allowed in excess of the fine or sentence actually imposed.”

       “[General Statutes] Sec. 18-98. confinement where bail unobtainable: PRESENTENCE CONFINEMENT CREDIT PRIOR TO JULY 1, 1981. Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned for an offense committed prior to July 1, 1981, is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies such person was confined between the denial of bail to him or his inability to obtain bail and his imprisonment.”

       The trial court’s decision resulted in petitioner Sutton’s immediate discharge from custody, subject to the outcome of this appeal.

       There is no pertinent legislative history for General Statutes § 18-97. The history of § 18-98, although very sparse, establishes that § 18-98 was drafted in order to rectify inequities that would result because some arrestees are unable to make bail. Under the statute arrestees not released on bail are credited for time served awaiting sentence. Public Acts 1967, No. 869; see 12 H.R. Proc., Pt. 7, 1967 Sess., pp. 3095-98; 12 S. Proc., Pt. 5,1967 Sess., pp. 2125-26; Conn. Joint Standing Committee Hearings, Corrections Committee, 1967 Sess., pp. 37, 55.

       “[General Statutes] Sec. 54-64a. release by judicial authority. When any arrested person is presented before the superior court, said court shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient to provide reasonable assurance of his appearance in court: (1) Upon his execution of a written promise to appear without special conditions, (2) upon his execution of a written promise to appear with nonfinancial conditions, (3) upon his execution of a bond without surety in no greater amount than necessary, (4) upon his execution of a bond with surety in no greater amount than necessary. If the arrested person is not released, the court shall order him committed, to the custody of the commissioner of correction until he is released or discharged in due course of law.” (Emphasis added.)

       “[General Statutes] Sec. 54-64b. release following arrest on court warrant, (a) When any person is arrested on a bench warrant of arrest issued by order of the superior court or, when said court is not in session, by a judge thereof, in which the court or judge issuing the warrant indicated that bail should be denied or ordered that the person to be arrested should be brought before a clerk or assistant clerk of the superior court, the officer or indifferent person making the arrest shall without undue delay bring the arrested person before the clerk or assistant clerk of the superior court for the geographical area where the offense is alleged to have been committed during the office hours of the clerk and if the clerk’s office is not open, the officer or indifferent person shall, without undue delay, bring the arrested person to a community correctional center within the geographical area where the offense is alleged to have been committed or, if there is no such correctional center within such geographical area, to the nearest community correctional center. The clerk or assistant clerk or a person designated by the commissioner of correction shall thereupon advise the arrested person of his rights under section 54-lb, and, when the court or judge has not indicated that bail should be denied, shall order the arrested person to enter into the condition of release pursuant to the condition fixed by the judge or court conditioned that the arrested person shall appear before the superior court having criminal jurisdiction in and for the geographical area to answer to the bench warrant of arrest and information filed in the case. Upon the failure of the arrested person to enter into the condition of release fixed by the court or judge or if the person has been arrested for an offense which is not bailable, the clerk or assistant clerk or the person designated by the commissioner of correction shall issue a mit-timus committing the arrested person to a community correctional center until he is discharged by due course of law. ...” (Emphasis added.)

       While General Statutes § 54-64b mandates that any person arrested on a bench warrant and unable to make bail be committed to a community correctional center pursuant to a mittimus, the parallel provision of General Statutes § 54-64a, applicable to “any arrested person,” provides that if the arrestee is not released, “the court shall order him committed to the custody of the commissioner of correction. . . ." Although we take judicial notice that a court typically accomplishes this task pursuant to a mittimus, it is possible that the the formal document will not be utilized. Further, because prisoners are committed to the commissioner of correction under § 54-64a, and because the commissioner has the authority to commit a prisoner to any state correctional institution; General Statutes § 18-87; a prisoner possibly may not be committed to a community correctional center. For these reasons, it is conceivable that some persons, not arrested pursuant to a bench warrant and unable to make bail, may fail to satisfy the requirements of § 18-97, because they were not committed pursuant to a mittimus, and of § 18-98, because they were not committed to a community correctional center. See also General Statutes § 7-135 (presentence detention in lieu of bond and without a mittimus by a local police officer).

       The habeas court, in its memorandum of decision, and the petitioners, in their brief on appeal, rely, to a large extent on our decison in Mancinone v. Warden, 162 Conn. 430, 294 A.2d 564 (1972), in support of their argument that General Statutes §§ 18-97 and 18-98 compel an award of multiple jail time credit. We find such reliance to be misdirected. In Mancinone we held that under §§ 18-97 and 18-98 an arrestee detained both under a mittimus and as a parole violator was eligible for presentence credit on the postparole crime, as well as on the sentence on which he had been paroled, even though he would not have been released from custody if he had been able to make bail. Although Mancinone stands for the proposition that our presentence jail time statutes may require that jail time served be credited to multiple sentences, it does not address the issue, now before us, of whether presentence jail time that qualifies under both §§ 18-97 and 18-98 can be applied twice to the same sentence. See also Delevieleuse v. Manson, 184 Conn. 434, 439, 439 A.2d 1055 (1981).

       We note that the legislature has made General Statutes §§ 18-97 and 18-98 inapplicable to offenses committed on or after July 1,1981, and has enacted General Statutes § 18-98d which grants credit for presentence confinement resulting from an offense committed after that date. Although the petitioners’ claim of double credit on a single sentence is expressly precluded by § 18-98d, we have found no legislative history to indicate that this statutory change was intended to resolve the issue before us for prisoners who committed offenses prior to July 1, 1981. 23 S. Proc., Pt. 10, 1980 Sess., p. 3429. (Remarks of Sen. Salvatore DePiano.)