Merle S. v. Commissioner of Correction

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 MERLE S.* v. COMMISSIONER OF CORRECTION
(AC 37388)
Sheldon, Prescott and West, Js.
Argued May 23—officially released August 16, 2016

(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Albert J. Oneto IV, assigned counsel, with whom, on
the brief, was David B. Rozwaski, assigned counsel,
for the appellant (petitioner).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Eva Lenczewski, supervisory assis-
tant state’s attorney, for the appellee (respondent).
 Opinion

WEST, J. The petitioner, Merle S., appeals following
the denial of his petition for certification to appeal from
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus. Specifically, the
petitioner claims that the habeas court abused its dis-
cretion by denying his petition for certification to
appeal, and erred in concluding (1) that he had proce-
durally defaulted on his claim that his guilty plea was
involuntarily tendered and (2) that his trial counsel’s
performance was not deficient.1 We disagree with the
petitioner, and, accordingly, we dismiss the appeal.
The record reveals the following relevant procedural
history. On December 2, 2010, the petitioner pleaded
guilty on a substitute information to one count of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (3)2 and one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1).3 He also
admitted to two violations of probation. The petitioner
was represented by Errol Skyers, special public
defender. The court, Damiani, J., imposed a total effec-
tive sentence of fifteen years imprisonment, execution
suspended after nine years, followed by five years of
probation. The petitioner did not move to withdraw his
plea or challenge it in a direct appeal.
On July 21, 2014, the petitioner, through appointed
counsel, filed a revised amended petition for writ of
habeas corpus alleging, inter alia, that the petitioner’s
heavily medicated state at the time he entered his guilty
plea rendered his plea involuntary. The petitioner fur-
ther alleged that his trial counsel was ineffective by
failing to inquire about his medicated state at the time
the plea was entered and, therefore, did not ensure that
he was competent to plead guilty.4 The respondent, the
Commissioner of Correction, filed a return, raising the
special defense of procedural default as to any claim
that the petitioner’s plea was involuntary. The petitioner
filed his response asserting that his claims were based
on ineffective assistance of counsel and, therefore, not
subject to procedural default.
The habeas trial, at which the petitioner and his trial
counsel testified, was held on August 7, 2014. The court
issued its memorandum of decision denying the petition
on September 19, 2014. The court concluded that the
petitioner had procedurally defaulted on his first claim
relating to the voluntariness of his plea, separate from
any claim of ineffective assistance of counsel. In so
doing, the court refused to address the petitioner’s argu-
ment that his assertion of ineffective assistance of coun-
sel sheltered this claim from procedural default. The
court also concluded that the petitioner failed to prove
that his trial counsel had provided ineffective assistance
by failing to ensure that the petitioner’s medicated state
did not affect his ability to knowingly, voluntarily, and
intelligently plead guilty. The petitioner filed a petition
for certification to appeal from the habeas court’s denial
of his petition for a writ of habeas corpus, which the
habeas court denied. This appeal followed.
We first set forth our standard of review. ‘‘Faced with
the habeas court’s denial of certification to appeal, a
petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discre-
tion.’’ Simms v. Warden, 230 Conn. 608, 612, 646 A.2d
126 (1994). In order to prove an abuse of discretion,
the petitioner must show ‘‘that the issues are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed fur-
ther.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 616. ‘‘If the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits.’’ Id., 612.
In considering the merits of the petitioner’s underly-
ing claims, we ‘‘cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Ricks v. Commissioner of Correction, 98 Conn. App.
497, 502, 909 A.2d 567 (2006), cert. denied, 281 Conn.
907, 916 A.2d 49 (2007). To the extent that the habeas
court relies on credibility determinations of witnesses
in deciding the issues, this court ‘‘must defer to the
trier of fact’s assessment of the credibility of the wit-
nesses that is made on the basis of its firsthand observa-
tions of their conduct, demeanor and attitude.’’ (Internal
quotation marks omitted.) State v. Kendrick, 314 Conn.
212, 223, 100 A.3d 821 (2014).
When faced with questions of procedural default,
‘‘[t]he habeas court’s conclusion that the petitioner’s
sentencing claim was . . . procedural default[ed]
involves a question of law. Our review is therefore ple-
nary.’’ Johnson v. Commissioner of Correction, 285
Conn. 556, 566, 941 A.2d 248 (2008). We turn now to
the petitioner’s underlying claims.
I
The petitioner’s first claim on appeal is that the
habeas court abused its discretion when it denied his
petition for certification to appeal from the court’s deci-
sion that he had procedurally defaulted on his claim that
his plea was involuntarily tendered due to his medicated
state. Specifically, the petitioner argues that his guilty
plea was involuntarily tendered because of his attor-
ney’s failure to inquire adequately about his competency
to plead guilty. The petitioner argues that because he
alleged ineffective assistance of counsel in his response
to the respondent’s claim of procedural default, the
habeas court improperly applied the procedural default
rule to this claim rather than addressing its merits. The
respondent argues that the petitioner misunderstands
the habeas court’s ruling and alleges that the court did
not conclude that the petitioner procedurally defaulted
on his ineffective assistance of counsel claim, but it
properly concluded that the petitioner procedurally
defaulted on any independent claim directly challenging
the voluntariness of his plea and, thus, properly denied
the petition for certification to appeal. We agree with
the respondent.
The following facts are relevant to this claim. On July
21, 2014, the petitioner filed a revised amended petition
for writ of habeas corpus alleging, inter alia, the follow-
ing. In his first count, the petitioner claims ‘‘[t]hat at
the time of the [p]etitioner’s plea, the [p]etitioner was
heavily medicated from the medication that he was
receiving from the [Department of Correction] . . .
such that he was unable to enter a voluntary, knowing,
and competent plea . . . .’’ In his fourth count, the
petitioner claims ‘‘[t]hat trial counsel did not seek to
determine if the medication that the [p]etitioner was
[taking] on the date of his pleas impacted the [p]etition-
er’s ability to knowingly, voluntarily, and with under-
standing enter into his guilty pleas . . . .’’ On July 25,
2014, the respondent filed a return and raised the special
defense of procedural default as to any of the petition-
er’s claims intended to be ‘‘a separate due process claim
that [his] plea was involuntary, unknowing, or incompe-
tent due to his medicated or mental status . . . .’’ The
respondent claimed that because the petitioner did not
raise this issue on direct appeal, nor file a motion to
withdraw his plea pursuant to Practice Book § 39-26,
he could not raise this claim for the first time in a
habeas proceeding. On July 28, 2014, the petitioner filed
his reply, in which he alleged that his claims were based
on ineffective assistance of counsel and, therefore, were
not subject to procedural default.
In its memorandum of decision, the habeas court
found that ‘‘the petitioner’s first claim relating to his
plea alone [was] subject to procedural default.’’
(Emphasis added.) The court went on to state that ‘‘[t]he
petitioner has filed no pleading to contest the special
defense as to this claim. The court finds that the peti-
tioner has failed to sustain his burden to establish good
cause for his failure to raise this claim on direct appeal.’’
The court refused to address the petitioner’s argument
that his assertion of ineffective assistance of counsel
made his claim not susceptible to procedural default.
The court later found that the petitioner’s fourth claim
of ineffective assistance of counsel was without basis
on the merits because the petitioner failed to prove
that his trial counsel was deficient in failing to inquire
further into the petitioner’s mental status and medi-
cated state at the time of his plea. The court incorpo-
rated those findings into its decision as to the
petitioner’s first claim.
Under the procedural default doctrine, ‘‘a claimant
may not raise, in a collateral proceeding, claims that
he could have made at trial or on direct appeal in the
original proceeding,’’ unless he can prove that his
default by failure to do so should be excused. Hinds
v. Commissioner of Correction, 151 Conn. App. 837,
852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, A.3d
(2016). ‘‘When a habeas petitioner has failed to file a
motion to withdraw his guilty plea or to challenge the
validity of the plea on direct appeal, a challenge to the
validity of the plea in a habeas proceeding is subject
to procedural default . . . . A respondent seeking to
raise an affirmative defense of procedural default must
file a return to the habeas petition responding to the
allegations of the petitioner and alleg[ing] any facts in
support of any claim of procedural default. . . . Only
after the respondent raises the defense of procedural
default in accordance with [Practice Book] § 23-30 (b)
does the burden shift to the petitioner to allege and
prove that the default is excused.’’ (Citations omitted;
internal quotation marks omitted.) Crawford v. Com-
missioner of Correction, 294 Conn. 165, 175–76, 982
A.2d 620 (2009). The petitioner can prove that the
default is excused by making ‘‘both a showing of cause
for his failure to raise the claim and also a showing of
actual prejudice.’’ Brewer v. Commissioner of Correc-
tion, 162 Conn. App. 8, 17, 130 A.3d 882 (2015).
When a petitioner who has not sought to withdraw
his plea or challenged it on direct appeal alleges in a
habeas proceeding that his guilty plea was tendered as
a result of ineffective assistance of counsel, ‘‘the court
need not apply the cause and prejudice test . . . in
determining whether to grant the habeas petition
because application of the two-pronged test in Strick-
land [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)], as modified for guilty plea cases
by Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88
L. Ed. 2d 203 (1985), accomplishes the same result.
. . . [I]f a petitioner can prove that his attorney’s per-
formance fell below acceptable standards, and that, as
a result, he was deprived of a fair trial or appeal, he
will necessarily have established a basis for cause and
will invariably have demonstrated prejudice.’’ (Cita-
tions omitted; internal quotation marks omitted.) John-
son v. Commissioner of Correction, supra, 285 Conn.
571–72. This court has since interpreted Johnson to
mean that ‘‘when a habeas petitioner alleges ineffective
assistance of trial counsel in connection with his plea
of guilty, his failure to move to withdraw his plea or
to challenge his plea on direct appeal will not constitute
procedural default.’’ Caban v. Commissioner of Correc-
tion, 113 Conn. App. 165, 174, 965 A.2d 601, cert. denied,
292 Conn. 901, 971 A.2d 40 (2009).5
 The petitioner argues that his first claim is not subject
to procedural default because in his reply to the respon-
dent’s special defense of procedural default, he pleaded
that the alleged default resulted from ineffective assis-
tance of counsel. In the habeas court’s memorandum
of decision, it treated the petitioner’s first claim as a
separate claim alleging that the petitioner did not enter
a voluntary, knowing, and competent guilty plea due to
his medicated state, apart from any claim of ineffective
assistance of counsel. Accordingly, the habeas court
found that only the petitioner’s first claim was subject
to procedural default.
To the extent that the petitioner relies on the claim
that his guilty plea was involuntary due to his medicated
state, untethered to his claim of ineffective assistance
of counsel, the habeas court was correct in its conclu-
sion that the claim is subject to procedural default. This
is precisely the type of claim that can, and must, be
raised either on direct appeal or by way of a motion to
withdraw the plea in order to avoid procedural default.
See, e.g., Crawford v. Commissioner of Correction,
supra, 294 Conn. 165. It is undisputed that the petitioner
failed to do either, and he offered no evidence of cause
for this procedural default.
If the petitioner relies on the claim that his plea was
involuntarily tendered resulting from his trial counsel’s
failure to inquire about his medicated state at the time
of the plea, the claim would amount to a repetition of
his fourth count of ineffective assistance of counsel.
The habeas court specifically, and correctly, stated in
its memorandum of decision that the petitioner’s inef-
fective assistance of counsel claim was not procedurally
defaulted. The court went on to deny that claim on its
merits. The petitioner has appealed that decision and
we discuss it in part II of this opinion.
We conclude that the habeas court correctly deter-
mined that the petitioner’s first claim, apart from his
ineffective assistance of counsel claim, was procedur-
ally defaulted. Thus, the petitioner has failed to show
that this claim involves issues that are debatable among
jurists of reason, that a court could resolve the issues
in a different manner or that the questions are adequate
to deserve encouragement to proceed further. Accord-
ingly, the court did not abuse its discretion when it
denied the petition for certification to appeal this claim.
II
The petitioner’s second claim on appeal is that the
habeas court abused its discretion when it denied his
petition for certification to appeal from the court’s
rejection of his claim that counsel provided ineffective
assistance by failing to inquire as to the petitioner’s
competency to enter a knowing and voluntary plea.
Specifically, the petitioner contends that his trial coun-
sel was deficient by failing to investigate whether the
petitioner was on the drug Risperdal at the time he
entered his guilty plea, and, therefore, whether the peti-
tioner was competent to plead.6 Additionally, the peti-
tioner contends that his trial counsel was deficient by
failing to advise the court that the petitioner was on the
drug Risperdal at the time of the plea.7 The respondent
argues that the habeas court correctly concluded that
the petitioner failed to demonstrate deficient perfor-
mance and, thus, properly denied the petition for certifi-
cation to appeal. We agree with the respondent.
The following facts are relevant to this claim. The
petitioner’s arrest and subsequent conviction stemmed
from inculpatory statements he made to the police that
both he and his wife had physically abused their four
month old daughter. Throughout the pendency of the
case, the petitioner experienced bouts of crying which,
in part, led the court, Damiani, J., to order that he
undergo a competency evaluation. The petitioner was
examined by a clinical team, which unanimously deter-
mined that he ‘‘had the capacity to understand the pro-
ceedings pending against him and had the ability to
assist in his own defense.’’ The team’s report also con-
tained information about the petitioner’s use of the drug
Risperdal, which had been prescribed to treat a ‘‘poorly
controlled tic disorder’’ related to the petitioner’s diag-
nosis of Tourette’s Syndrome. In November, 2010, the
court, Damiani, J., found the petitioner legally compe-
tent to stand trial.
The petitioner’s trial counsel testified at the habeas
trial that the petitioner was ‘‘always very conversant’’
and that he did not notice the petitioner having difficulty
remembering conversations. He also testified that,
throughout his representation of the petitioner, the peti-
tioner was adamant about taking personal responsibil-
ity for what happened to his daughter, insisting that he
did not want his wife to be convicted. Because of this,
the petitioner’s trial counsel thought it best to negotiate
a plea for the petitioner rather than to develop a trial
strategy. Plea negotiations with the court commenced
in November, 2010. Ultimately, the petitioner agreed to
the plea bargain proposed by the court, under which
he was scheduled to plead guilty on December 2, 2010.
The petitioner’s trial counsel testified that prior to the
petitioner’s pleading guilty, he reviewed the plea can-
vass with the petitioner, who seemed to understand
their conversation and to be ‘‘articulate’’ and ‘‘more
than alert.’’ The petitioner’s trial counsel testified that
he believed there were no ‘‘impediments to [the petition-
er’s] plea.’’
During the plea canvass, when the court asked the
petitioner if he had taken any medication that day, the
petitioner responded ‘‘No sir, I haven’t.’’ The court also
asked the petitioner if he was satisfied with his trial
counsel’s legal representation, to which the petitioner
responded ‘‘Yes, sir, very satisfied.’’ After the canvass,
the court accepted the petitioner’s guilty plea on both
counts. The petitioner’s trial counsel testified that he
had no reason to dispute the petitioner’s answer to the
court’s question that he was not then on medication.
The habeas court credited the testimony of the petition-
er’s trial counsel ‘‘as to his actions in the representation
of the petitioner.’’
The petitioner testified that he began taking Risperdal
in 2004 and that he thought he was on the medication
at the time of his plea. He testified that throughout his
case, he tried to tell his trial counsel about his Risperdal
use, but that it seemed like his trial counsel ‘‘just wasn’t
even interested.’’ The petitioner also testified that the
Risperdal made him feel like he was in a fog, and that
he did not remember his trial counsel ever discussing
the plea agreement with him, the trial court’s plea can-
vass on December 2, 2010, or his entry of a guilty plea
on that day. The petitioner was shown a transcript of
his plea hearing but still testified that he did not remem-
ber it.
In denying the petitioner’s claim of ineffective assis-
tance of counsel for failure to inquire about his mental
condition at the time of the plea, the habeas court found
the petitioner not credible. The court found that he
‘‘testified in a manner that alternated between clear,
precise recollection, vague memories and a complete
lack of recall, based, in this court’s view, on which
benefited him most at the time.’’ In making that determi-
nation, the court noted that both the competency evalu-
ation in November, 2010, and a different psychiatric
evaluation in May, 2010, described the petitioner as
‘‘manipulative.’’ The court also credited the findings
of the competency evaluators that the petitioner was
competent to stand trial. In the end, the court found
that the petitioner had failed to present evidence of
being ‘‘ ‘overly medicated’ ’’ at any point in his criminal
proceedings, and that he testified ‘‘unconvincingly as
to [his alleged] intellectual and memory deficits.’’ The
court further credited the testimony of the petitioner’s
trial counsel that he had no occasion to be concerned
with the petitioner’s plea or mental state. Lastly, the
court credited the petitioner’s responses to the court’s
plea canvass on December 2, 2010, as ‘‘compelling evi-
dence of his knowing, voluntary and intelligent guilty’’
plea. It was on the basis of those findings that the court
concluded that the petitioner had failed to establish
that his trial counsel’s performance was deficient, and,
thus, that he had rendered ineffective assistance.
‘‘A habeas petitioner can prevail on a constitutional
claim of ineffective assistance of counsel [only if he
can] establish both (1) deficient performance, and (2)
actual prejudice. . . . For ineffectiveness claims
resulting from guilty verdicts, we apply the two-pronged
standard set forth in Strickland v. Washington, [supra,
466 U.S. 687]; Levine v. Manson, 195 Conn. 636, 639–40,
490 A.2d 82 (1985). For effectiveness claims resulting
from guilty pleas, we apply the standard set forth in
Hill v. Lockhart, [supra, 474 U.S. 59,] which modified
Strickland’s prejudice prong. . . .
‘‘To satisfy the performance prong, the petitioner
must show that counsel’s representation fell below an
objective standard of reasonableness. . . . A peti-
tioner who accepts counsel’s advice to plead guilty has
the burden of demonstrating on habeas appeal that
the advice was not within the range of competence
demanded of attorneys in criminal cases. . . . The
range of competence demanded is reasonably compe-
tent, or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . Reasonably competent attorneys may advise
their clients to plead guilty even if defenses may exist.
. . . A reviewing court must view counsel’s conduct
with a strong presumption that it falls within the wide
range of reasonable professional assistance. . . .
‘‘To satisfy the prejudice prong, the petitioner must
show a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would
have insisted on going to trial. . . . Reasonable proba-
bility does not require the petitioner to show that coun-
sel’s deficient conduct more likely than not altered the
outcome in the case, but he must establish a probability
sufficient to undermine confidence in the outcome.
. . . A reviewing court can find against a petitioner on
either ground, whichever is easier.’’ (Internal quotation
marks omitted.) Shelton v. Commissioner of Correc-
tion, 116 Conn. App. 867, 874–75, 977 A.2d 714, cert.
denied, 293 Conn. 936, 981 A.2d 1080 (2009), citing Mock
v. Commissioner of Correction, 115 Conn. App. 99,
104–05, 971 A.2d 802, cert. denied, 293 Conn. 918, 979
A.2d 490 (2009).
The petitioner claims that his trial counsel rendered
ineffective assistance at the time his guilty plea was
entered because counsel failed to investigate whether
the petitioner was on the drug Risperdal at the time of
the plea and whether he was competent to plead. On
the basis of our review of the record, we conclude that
the facts, as found by the habeas court, were not clearly
erroneous, and that its ultimate conclusion that the
petitioner’s counsel was not ineffective was legally cor-
rect. Accordingly, we conclude that the petitioner has
failed to show that this claim involves issues that are
debatable among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions are adequate to deserve encouragement to
proceed further. Thus, the habeas court did not abuse its
discretion when it denied the petition for certification to
appeal this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The petitioner made an additional argument that this court can and
should find that he was prejudiced by his trial counsel’s deficient perfor-
mance, even though the habeas court did not make any factual findings on
this issue. Because we are dismissing the appeal on other grounds, we do
not reach this argument. See Mock v. Commissioner of Correction, 115
Conn. App. 99, 105, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d
490 (2009).
2
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life he recklessly engages in
conduct which creates a risk of death to another person, and thereby causes
serious physical injury to another person . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of . . .
a class C felony . . . .’’
4
The petitioner asserted two other claims of ineffective assistance of trial
counsel in his revised amended petition for writ of habeas corpus, both of
which were denied by the habeas court. Because he did not pursue either
of those claims on appeal, we deem them abandoned.
5
In his brief, the petitioner suggests that we follow the District Court’s
ruling in Magee v. Romano, 799 F. Supp. 296, 300 (E.D.N.Y. 1992), which
he claimed held that if a trial attorney’s ineffective assistance led to an
involuntary guilty plea, and, therefore, waiver of further proceedings, the
petitioner should not be procedurally defaulted from raising the claim for
the first time in a habeas corpus proceeding. We will not address this
argument because we have reached the same result on other grounds.
6
In making this argument, the petitioner urges us to adopt the federal
court’s analysis in Agan v. Singletary, 12 F.3d 1012, 1019 (11th Cir. 1994),
which held that the petitioner’s attorney was ineffective, in part, because
he did not inquire deeper into the petitioner’s competency to plead guilty.
Agan is distinguishable from the present case and, therefore, we decline
to follow it. In Agan, the petitioner, James Agan, refused to submit to a
competency examination, and the court stated that ‘‘[a]n attorney cannot
blindly follow a client’s demand that his competency not be challenged.’’
Id., 1018. The court further relied on the fact that the attorney ‘‘made no
independent inquiry into Agan’s psychiatric background’’ and that he ‘‘ended
further inquiry regarding Agan’s mental fitness when Agan refused to submit
to a psychiatric examination.’’ Id. In the present case, however, the petitioner
did submit to a competency evaluation, which provided his attorney with
information regarding the petitioner’s mental and medical history sufficient
to render effective assistance. Therefore, we decline to follow Agan.
7
The respondent contends that the petitioner’s claim of ineffective assis-
tance of counsel for failure to advise the court of the petitioner’s use of
Risperdal at the time of the plea was inadequately briefed and, therefore,
is unreviewable. This court previously has determined that if a petitioner
asserts a claim in his statement of issues but thereafter devotes to it only
‘‘cursory attention in [his] brief without substantive discussion or citation
of authorities’’; (internal quotation marks omitted) State v. Monahan, 125
Conn. App. 113, 122, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d
152 (2011); that claim is deemed abandoned and, therefore, is unreviewable.
Accordingly, we agree with the respondent that this claim was inadequately
briefed and we decline to review this claim.