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STATE OF CONNECTICUT v. ARIK FETSCHER
(AC 36615)
DiPentima, C. J., and Beach and Bear, Js.
Argued October 14—officially released December 29, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number one,
Truglia, J.)
Arik B. Fetscher, self-represented, the appellant
(defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Steven G. Weiss, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The self-represented defendant,
Arik Fetscher, appeals from the judgment of conviction,
rendered after his conditional plea of nolo contendere,1
of the crime of operating a motor vehicle while under
the influence of intoxicating liquor in violation of Gen-
eral Statutes § 14-227a.2 On appeal, the defendant chal-
lenges the trial court’s denial of his motion to dismiss
and its interpretation of the pretrial alcohol education
program statute, General Statutes § 54-56g (a) (1) (D),3
and claims that the court improperly denied his applica-
tion for entry into the program. The defendant also
raises several constitutional claims. We affirm the judg-
ment of the trial court.
In connection with the defendant’s conditional plea
of nolo contendere, the state recited the following facts.
On December 6, 2012, the defendant was operating a
motor vehicle at a high rate of speed in Greenwich. A
police officer stopped the defendant’s vehicle. Upon
speaking with the defendant, the officer noticed an odor
of alcohol on the defendant’s breath and that his eyes
were glassy and bloodshot. The defendant consented
to Breathalyzer testing and the results were a blood
alcohol level of 0.167 percent and 0.174 percent. The
defendant was arrested and charged, inter alia, with
violating § 14-227a.
On April 8, 2013, the defendant applied for the pretrial
alcohol education program (program) pursuant to § 54-
56g. On May 23, 2013, the defendant filed a memoran-
dum in support of his eligibility. He acknowledged that
the bail commissioner had determined that he was ineli-
gible as a result of his conviction for operating a vehicle
while intoxicated in the state of New York on March
6, 1997.4 The defendant argued that the New York con-
viction did not constitute an offense with substantially
similar elements of § 14-227a (a). He also contended
that his ineligibility amounted to an unequal application
of the law and yielded an absurd and unworkable result.
The state filed a responsive memorandum of law in
on May 30, 2013, arguing that the Connecticut and New
York statutes substantially were the same, and there-
fore the defendant should not be admitted into the
program. On June 6, 2013, the court, after hearing argu-
ment, denied the application because of the defendant’s
1997 New York conviction. As a result, a plea of not
guilty was entered and the case was placed on the trial
list. See General Statutes § 56-54g (b).
On February 24, 2014, the defendant orally moved
for a dismissal of the charge against him pursuant to
Practice Book § 41-8.5 Defense counsel stated: ‘‘It is
the argument now being made to the court that this
prosecution should be dismissed on the grounds . . .
put [forth] in my [prior] memorandum . . . and the
arguments that are on the record that were made to
the court . . . that [the defendant] is now suffering the
unequal application of our laws . . . . He is not having
access to what could be a diversionary disposition,
potentially, whereas other applicants similarly situated
are at least able to attempt that. But the applications
of these laws finds him not even eligible in the way we
claim is the statutory scheme unequally applied to him
in violation of his constitutional right to the application
of the laws.’’6 The state objected to the defendant’s
motion.
The court denied the motion to dismiss, rejecting
the defendant’s arguments. The court found its ruling
dispositive of the case. It then canvassed the defendant
and accepted his conditional plea of nolo contendere.7
The defendant was sentenced to six months incarcera-
tion, execution suspended, with eighteen months of
probation and 100 hours of community service. The
court granted the defendant’s motion to stay the execu-
tion of the sentence pending the outcome of his appeal.
On appeal, the defendant first claims that the court
improperly construed § 54-56g (a) (1) (D). The defen-
dant argues that our legislature has created a ‘‘ ‘fresh
start’ ’’ to allow repeat offenders of § 14-227a entry into
the program so long as ten years have elapsed between
each violation. The state counters that we should reject
the defendant’s request to judicially rewrite § 54-56g (a)
(1) (D) by replacing the phrase ‘‘at any time’’ with ‘‘ten
years.’’ We agree with the state.
We begin our analysis with a brief discussion of the
relevant statutory framework. Section 54-56g estab-
lished the program for individuals charged with vio-
lating § 14-227a. State v. Arisco, 39 Conn. App. 11, 16–17,
663 A.2d 442 (1995). The trial court has discretion to
grant or deny an application to participate in the pro-
gram. Id.; see also General Statutes § 54-56g (b); State
v. DiPaolo, 88 Conn. App. 53, 55 n.1, 868 A.2d 98, cert.
denied, 273 Conn. 935, 875 A.2d 544 (2005). Upon a
successful completion of the program, an individual
may apply for the dismissal of the charge. State v.
DiLoreto, 88 Conn. App. 393, 403 n.5, 870 A.2d 1095
(2005); see also State v. Descoteaux, 200 Conn. 102,
106–107, 509 A.2d 1035 (1986).
Our legislature has set forth certain eligibility criteria
for the program. See § 54-56g (a) (1) (A) through (E).8
An applicant is required to state under oath and under
penalty of perjury that these eligibility criteria have
been met. See General Statutes § 54-56g (a) (1). For the
purpose of this appeal, we focus on § 54-56g (a) (1)
(D), which provides in relevant part that an applicant
must state under oath that he or she ‘‘has not been
convicted in any other state at any time of an offense
the essential elements of which are substantially the
same as . . . subdivision (1) or (2) of subsection (a)
of section 14-227a . . . .’’ (Emphasis added.)
Although he argued otherwise at trial, in this appeal
the defendant does not dispute the fact that in 1997 he
was convicted in New York of an offense the essential
elements of which are substantially the same as subdivi-
sions (1) or (2) of subsection (a) of § 14-227a. The
defendant argues, however, that under the tenets of
statutory construction and the legislative histories of
§§ 54-56g and 14-227a, a ten year rule should apply for
eligibility under the program for persons who have been
convicted of operating a motor vehicle while under the
influence of intoxicating liquor in another state. The
flaw in the defendant’s analysis is that we are bound
by the plain language of the statute, which expressly
states that persons with out of state convictions, at
any time, are not eligible for the program.9 His claim,
therefore, must fail.
We begin with our familiar standard of review.
‘‘Because statutory interpretation is a question of law,
our review is de novo. . . . When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive 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.) State v.
Buckland, 313 Conn. 205, 224, 96 A.3d 1163, 1173 (2014),
cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d
837 (2015); see also State v. Crespo, 317 Conn. 1, 9, 115
A.3d 447 (2015).
We have recognized that ‘‘[a] cardinal rule of statutory
construction is that where the words of a statute . . .
are plain and unambiguous the intent of the [drafters]
in enacting the statute . . . is to be derived from the
words used. . . . Where the court is provided with a
clearly written rule, it need look no further for interpre-
tive guidance. . . . It is our duty to interpret statutes
as they are written. . . . Courts cannot, by construc-
tion, read into statutes provisions which are not clearly
stated. . . . The legislature is quite aware of how to
use language when it wants to express its intent to
qualify or limit the operation of a statute.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Anderson, 74 Conn. App. 633, 652–53, 813 A.2d 1039,
cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).
We conclude that § 54-56g (a) (1) (D) is plain and
unambiguous, and therefore, we decline the defendant’s
invitation to resort to extratextual sources. See State
v. Jackson, 153 Conn. App. 639, 643, 103 A.3d 166 (2014)
(threshold determination of whether statutory language
is plain and unambiguous governs whether extratextual
sources may be used as interpretive tool), cert. denied,
315 Conn. 912, 106 A.3d 305 (2015). The language of
§ 54-56g (a) (1) (D) plainly states that to be eligible for
the program, an applicant must not have had, at any
time, a conviction for an offense similar to § 14-227a
in any other state. Had the legislature wanted to use a
ten year period for out of state convictions, it was aware
of how to effectuate that intent. See, e.g., General Stat-
utes § 54-56g (a) (1) (A) (applicant cannot have used
program within preceding ten years).
We also are guided by our decision in State v. DiPaolo,
supra, 88 Conn. App. 53. In that case, the defendant,
who previously had been convicted of operating a motor
vehicle under the influence of intoxicating liquor in
New York, was convicted of operating a motor vehicle
while under the influence in Connecticut and was sub-
ject to an enhanced sentence as a second time offender
pursuant to § 14-227a (g). Id., 55. The defendant argued
that our legislature did not intend § 14-227a (g) to apply
to situations such as his because his first conviction
occurred in a jurisdiction that did not offer ‘‘a diversion-
ary program.’’ Id., 56. On appeal, he conceded that the
statutory language appeared to be unambiguous. Id., 57.
He argued ‘‘nevertheless that, despite the unambiguous
statutory language to the contrary, it was not the intent
of the legislature to punish an individual with a 120 day
jail sentence who is in fact only a second offender. That
argument is premised on the assumption that first time
offenders in Connecticut are almost always allowed to
submit to the . . . program rather than risk of a convic-
tion of operating a motor vehicle while under the influ-
ence . . . . Thus, the second time offenders sentenced
under § 14-227a (g) are actually third time offenders
who were not convicted following their first arrest, but
were instead diverted into the . . . program.’’ (Internal
quotation marks omitted.) Id., 57–58.10
In DiPaolo, we rejected the defendant’s argument,
stating that our legislature used the word ‘‘ ‘convic-
tion’ ’’ in § 14-227a (g), which was not susceptible to
more than one reasonable interpretation. Id., 58. We
further declined to consider extratextual sources on
the basis that the plain meaning yielded an absurd or
unworkable result, as requested by the defendant. Id.,
58–60. The defendant maintained that the plain meaning
was unworkable because of the disparate treatment for
individuals who are equally culpable. Id., 59. We noted
that the different laws in New York and Connecticut
‘‘reflect their people’s judgments about the appropriate
punishments for drunken drivers and, as such, the
states’ laws need not be identical.’’ Id. ‘‘If the legislature
had wanted to distinguish among those states with
and without diversionary programs for first time
offenders, it could have done so.’’ (Emphasis added.)
Id., 60. This reasoning applies in the present case; our
legislature could have replaced the ‘‘at any time’’ lan-
guage in § 54-56g (a) (1) (D) with a ten year time period,
but chose not to. Further, this statutory language does
not yield an absurd or unworkable result.
Simply put, ‘‘[i]t is the duty of the court to interpret
statutes as they are written . . . and not by construc-
tion read into statutes provisions which are not clearly
stated.’’ (Citation omitted; internal quotation marks
omitted.) State v. Johnson, 227 Conn. 534, 542, 630 A.2d
1059 (1993). The defendant’s statutory construction
claim, therefore, must fail. Accordingly, the trial court
properly denied the defendant’s motion to dismiss.
The defendant also asserts several unpreserved con-
stitutional arguments in his brief.11 Specifically, he
claims that his rights to due process and against double
jeopardy were violated. He also mentions the privileges
and immunities clause and an unconstitutional ‘‘ ‘grand-
fathering’ ’’ as noted in Guinn v. United States, 238 U.S.
347, 35 S. Ct. 926, 59 L. Ed. 1340 (1915). That section
of his brief, however, consists of unsupported asser-
tions and an incomplete analysis of the constitutional
topics mentioned. We conclude, therefore, that the
defendant has failed to adequately brief these issues and
we decline to consider them.12 ‘‘[W]e are not required to
review claims that are inadequately briefed. . . . We
consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. We do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not
been adequately briefed. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law cited.
. . . It is not enough merely to mention a possible argu-
ment in the most skeletal way, leaving the court to do
counsel’s work, create the ossature for the argument,
and put flesh on its bones.’’ (Citation omitted; internal
quotation marks omitted.) State v. Prosper, 160 Conn.
App. 61, 74–75, A.3d (2015).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
General Statutes § 14-227a (a) provides in relevant part: ‘‘No person shall
operate a motor vehicle while under the influence of intoxicating liquor or
any drug or both. A person commits the offense of operating a motor vehicle
while under the influence of intoxicating liquor or any drug or both if such
person operates a motor vehicle (1) while under the influence of intoxicating
liquor or any drug or both, or (2) while such person has an elevated blood
alcohol content. For the purposes of this section, ‘elevated blood alcohol
content’ means a ratio of alcohol in the blood of such person that is eight-
hundredths of one per cent or more of alcohol, by weight . . . .’’
3
General Statutes § 54-56g provides in relevant part: ‘‘(a) (1) There shall
be a pretrial alcohol education program for persons charged with a violation
of section 14-227a . . . .
‘‘(b) . . . If such defendant satisfactorily completes the assigned pro-
gram, such defendant may apply for dismissal of the charges against such
defendant and the court, on reviewing the record of the defendant’s participa-
tion in such program submitted by the Court Support Services Division and
on finding such satisfactory completion, shall dismiss the charges. . . .’’
4
See N.Y. Veh. & Traf. Law § 1192 (2) (2009).
5
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general issue,
shall, if made prior to trial, be raised by a motion to dismiss the information
. . . (8) Claim that the law defining the offense charged is unconstitutional
or otherwise invalid; or (9) Any other grounds.’’
6
The defendant was represented by counsel during the proceedings before
the trial court.
7
The trial court failed to indicate on the written plea form that its ruling
on the motion to dismiss was dispositive of the case. Such a determination
is a requirement for an appeal brought pursuant to § 54-94a, and the failure
to make that determination will result in an appellate court declining review.
See State v. Jevarjian, 124 Conn. App. 331, 352–53, 4 A.3d 1231 (2010),
appeal dismissed, 307 Conn. 559, 58 A.3d 243 (2012); State v. Rhoads, 122
Conn. App. 238, 244, 999 A.2d 1, cert denied, 298 Conn. 913, 4 A.3d 836
(2010). In the present case, however, the court orally indicated that its ruling
was dispositive. We encourage trial courts to complete the conditional plea
of nolo contendere form as to whether the ruling is dispositive of the case.
8
General Statutes § 54-56g (a) was amended by No. 14-110, § 1, of the
2014 Public Acts, which made changes to the statute that are not relevant
to this appeal. For purposes of clarity, we refer to the current revision of
the statute.
9
Notably, our legislature has not established a ten year time period for
eligibility to the program on persons convicted in Connecticut of violating
§ 14-227a. See General Statutes § 54-56g (a) (1) (C).
10
‘‘If an eligible individual completes the program, he or she is not con-
victed of a violation of § 14-227a. Therefore, in most cases, a person who
is convicted for a second violation of § 14-227a within a ten year period has
actually been charged with a violation of § 14-227a three times during that
period.’’ McCoy v. Commissioner of Public Safety, 300 Conn. 144, 166 n.18,
12 A.3d 948 (2011).
11
See State v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862 (2014); State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
12
‘‘[I]t is the established policy of the Connecticut courts to be solicitous
of pro se litigants and when it does not interfere with the rights of other
parties to construe the rules of practice liberally in favor of the pro se party.
. . . Although we allow pro se litigants some latitude, the right of self-
representation provides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Internal quotation marks omitted.)
State v. Stanley, 161 Conn. App. 10, 28 n.21, A.3d (2015).