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DAVID A. ABRAMS v. COMMISSIONER
OF CORRECTION
(AC 40719)
Keller, Bright and Devlin, Js.
Syllabus
The petitioner, who had been convicted of the crimes of attempt to commit
murder, assault in the first degree, and criminal possession of a firearm
in connection with a shooting incident, filed a fourth petition for a writ
of habeas corpus, claiming that he had received ineffective assistance
of counsel from D, who had represented him with respect to his appeal
of the habeas court’s denial of his first habeas petition. Specifically, the
petitioner alleged that D was ineffective for withdrawing the appeal at
the petitioner’s direction and that he would not have withdrawn the
appeal but for D’s poor advice regarding his ability to proceed with
the appeal as a self-represented party, and that his subsequent habeas
counsel, A and M, rendered ineffective assistance by failing to raise a
claim regarding D’s ineffectiveness. The habeas court rendered judgment
denying the habeas petition, from which the petitioner, on the granting of
certification, appealed to this court. Held that the habeas court properly
determined that D did not render ineffective assistance; that court prop-
erly determined that D acted reasonably in withdrawing the appeal, as
it would have been unreasonable for D to ignore the petitioner’s directive
to withdraw the appeal under the circumstances and, thus, D’s conduct
in withdrawing the appeal did not fall below an objective standard of
reasonableness, and the petitioner’s claim that D was deficient in failing
to advise the petitioner that he had a right to proceed as a self-repre-
sented party was unavailing, as the petitioner’s expression of dissatisfac-
tion with D’s choice of claims to raise on appeal did not confer on D a
duty to explain to the petitioner his right to proceed as a self-represented
party, the petitioner did not indicate to D that he was interested in
proceeding as self-represented, and, thus, there was no reason for D to
discuss the attendant rights with him.
Argued May 29—officially released September 17, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Judie Marshall, with whom, on the brief, was Walter
C. Bansley IV, for the appellant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Stephen J. Sedensky, state’s attorney,
and Jo Anne Sulik, supervisory assistant state’s attor-
ney, for the appellee (respondent).
Opinion
DEVLIN, J. The petitioner, David A. Abrams,1 appeals,
following the granting of his certification to appeal,
from the judgment of the habeas court denying his
fourth petition for a writ of habeas corpus. He claims
that counsel who represented him in the appeal taken
from the denial of his first petition for a writ of habeas
corpus, John C. Drapp, rendered ineffective assistance
by withdrawing the appeal pursuant to Practice Book
§ 63-9.2 On appeal, the petitioner asserts that the habeas
court erred in concluding that Drapp did not render
ineffective assistance by withdrawing the appeal at the
petitioner’s direction because his decision to withdraw
the appeal was based on Drapp’s poor advice.3 We dis-
agree and, accordingly, affirm the judgment of the
habeas court.
The following procedural history and facts, as found
by the habeas court, are relevant to this appeal. The
petitioner was convicted, following a jury trial, of
attempt to commit murder in violation of General Stat-
utes §§ 53a-49 and 53a-54a (a), assault in the first degree
in violation of General Statutes § 53a-59 (a) (1), and
criminal possession of a firearm in violation of General
Statutes § 53a-217. The petitioner’s sentence was
enhanced pursuant to General Statutes § 53-202k based
on the finding that he committed a class B felony with
a firearm. On December 7, 2011, the petitioner was
sentenced to a total effective sentence of fifty-one years
of incarceration, followed by nine years of special
parole.4 The petitioner subsequently appealed to this
court, which affirmed the judgment of the trial court
and determined that the jury reasonably could have
found the following facts:
‘‘The [petitioner] and the victim, Jacqueline Peton,
were involved in a sometimes volatile, live-in relation-
ship from December, 1994, until August, 2000, during
which time they had a child. Prior to the relationship
ending, the victim called the Danbury police in August,
2000, claiming that the [petitioner] had violated the
restraining order that she had obtained against him
living with her. At that time, to give the victim ‘a taste
of her own medicine,’ the [petitioner] called her
employer and reported that she was stealing cleaning
products at work and selling them.
‘‘On November 1, 2000, the [petitioner] went to the
victim’s apartment to see his son. When the victim did
not allow him into her apartment, the [petitioner] threat-
ened to kill her and stated that he was going to report
her to the department of children and families for child
abuse. During the early evening hours of November 3,
2000, the [petitioner] and the victim had an argument
during a telephone conversation. After the victim hung
up, the [petitioner] repeatedly called her telephone
number. Despite the [petitioner]’s objections, she went
out that night with Ricky Cordiero. At approximately
5 a.m. on November 4, 2000, the victim returned to her
apartment complex and observed the [petitioner] sitting
in his vehicle, a black Chrysler sedan with custom wheel
rims. As the victim walked toward her building, the
[petitioner] ran to her with a gun in his hand and
grabbed her. When she escaped, the [petitioner] circled
her and fired a series of shots at her, wounding her in
the leg, elbow and buttocks. After the [petitioner]’s gun
jammed, as he left the scene, he told the victim, ‘I’m
going to get you. I’m going to have somebody f*cking
kill you.’ ’’ State v. Abrahams, 79 Conn. App. 767, 769–
70, 831 A.2d 299 (2003).
The petitioner filed his first amended petition for a
writ of habeas corpus on September 17, 2003, in which
he asserted twenty-three claims of ineffective assis-
tance of trial counsel, Joseph Romanello. The petition
was denied by the habeas court in a memorandum of
decision issued February 28, 2005.
The petitioner filed an appeal from the denial of his
first habeas petition on August 3, 2005, wherein he was
represented by Drapp. Drapp submitted a brief to the
Appellate Court on February 22, 2006, in which he raised
the following issue: ‘‘Did the habeas trial court err in
finding that the petitioner received effective assistance
of counsel at the sentencing hearing on the underlying
criminal charges?’’ More specifically, the petitioner
claimed that the habeas court erred in not finding that
his trial counsel was ineffective for failing to take any
action to stop the petitioner’s verbal assault of the vic-
tim, the judge, the prosecutor and his own trial counsel
during allocution at sentencing. Drapp also filed a reply
brief for the case on August 9, 2006, and the case was
‘‘marked ready’’ on the same date. On September 26,
2006, Drapp withdrew the appeal pursuant to Practice
Book § 63-9, indicating on the required form that he
was withdrawing ‘‘as a result of some activity before
the case was assigned to the settlement program.’’
(Emphasis omitted.)
Prior to the withdrawal of the appeal from the denial
of his first habeas petition, the petitioner had filed a
second petition for a writ of habeas corpus, in which
he was represented by Attorney Salvatore Adamo. This
second habeas petition was denied in a memorandum
of decision dated April 7, 2008; Abrams v. Warden,
State Prison, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (April 7, 2008); and the
appeal was dismissed by this court on February 16,
2010. Abrams v. Commissioner of Correction, 119
Conn. App. 414, 987 A.2d 370, cert. denied, 295 Conn.
920, 991 A.2d 564 (2010). The petitioner’s third habeas
petition, in which he was represented by Attorney Jus-
tine Miller, was also denied by the habeas court; Abrams
v. Commissioner of Correction, Superior Court, judicial
district of Tolland, Docket No. CV-XX-XXXXXXX-S
(November 13, 2012); and the appeal was subsequently
dismissed by this court on April 8, 2014. Abrams v.
Commissioner of Correction, 149 Conn. App. 903, 87
A.3d 631, cert. denied, 312 Conn. 905, 93 A.2d 157 (2014).
Neither the petitioner’s second nor third habeas peti-
tions alleged that Drapp was ineffective for withdrawing
the first habeas appeal.
In his amended petition in the present case, the peti-
tioner alleged that Drapp rendered ineffective assis-
tance by withdrawing the appeal taken from the denial
of his first habeas petition and that subsequent habeas
counsel, Adamo and Miller, also rendered ineffective
assistance of counsel by failing to raise a claim regard-
ing Drapp’s ineffectiveness, as a result of his withdrawal
of the appeal in the first habeas petition, in the second
and third habeas petitions, respectively. At the trial on
the underlying habeas petition, Drapp testified that he
represented the petitioner in the appeal from the denial
of his first habeas petition. Based on his review of the
pleadings, the evidence presented at the first habeas
trial, the habeas court’s decision, and appropriate legal
research, he determined that he would raise one issue
on appeal, namely, that the habeas court had erred in
concluding that the petitioner’s trial counsel did not
render ineffective assistance at the petitioner’s sen-
tencing.
Prior to oral argument, Drapp received a letter from
the petitioner stating that he wished to withdraw the
appeal. Drapp, however, could not recall some eleven
years later what the petitioner’s stated reason was in
the letter for his request to withdraw the appeal. After
receiving the letter, Drapp spoke with the petitioner
about the request. Although he could not remember the
details of the conversation, Drapp testified that he was
certain that they would have discussed his reasons for
requesting the withdrawal and also believed that he
would have advised the petitioner that it was against
his interests to withdraw the appeal.
The petitioner then testified as to his recollection of
the events at issue. He agreed that Drapp visited him
at the correctional institution where he was housed to
discuss the letter before withdrawing the appeal. During
the meeting, the petitioner expressed his concern that
Drapp had elected to raise only one issue on appeal
when twenty-three issues had been litigated at the
habeas trial. In response to the petitioner’s concerns,
Drapp stated that the only issue that was preserved for
appeal was the one that he had raised in his brief. The
petitioner then informed Drapp that the brief he had
prepared was ‘‘garbage’’ and that the issue he had cho-
sen to pursue was not a winnable one. Drapp replied
that the only option, rather than go forward on the one
issue as briefed, would be to withdraw the appeal and
proceed with his second habeas corpus petition against
Attorney Bruce McIntyre, the petitioner’s first habeas
attorney. The petitioner, believing that he could not win
on the appeal as it was briefed and wanting to avoid
any further delay in litigation, directed Drapp to with-
draw the appeal in subsequent correspondence.
The petitioner testified that, during their conversa-
tion about withdrawing the appeal, Drapp never
informed him that he could proceed as a self-repre-
sented party and, therefore, he believed his only option
was to proceed with the appeal as briefed or to with-
draw. He further asserted that, had Drapp explained
that he had the right to proceed as self-represented, he
would have done so because he had represented himself
in the past. Finally, the petitioner testified that he dis-
cussed with both Adamo and Miller raising a claim of
ineffective assistance by Drapp based on his withdrawal
of the appeal, but neither counsel raised this claim in
their respective habeas petitions.
The court denied the petition in a memorandum of
decision issued on July 12, 2017, finding that the peti-
tioner had failed to establish that Drapp’s performance
was constitutionally deficient and had further failed to
establish that he was prejudiced by Drapp’s withdrawal
of the appeal by demonstrating that, but for the with-
drawal, the petitioner would have prevailed on his claim
on appeal. The court granted the petitioner’s petition
for certification to appeal on July 21, 2017, and this
appeal followed.
‘‘Before turning to the petitioner’s claims, we set forth
basic principles governing the present appeal. The use
of a habeas petition to raise an ineffective assistance
of habeas counsel claim, commonly referred to as a
habeas on a habeas, was approved by our Supreme
Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d
818 (1992). In Lozada, the court determined that the
statutory right to habeas counsel for indigent petition-
ers provided in General Statutes § 51-296 (a) includes
an implied requirement that such counsel be effective,
and it held that the appropriate vehicle to challenge the
effectiveness of habeas counsel is through a habeas
petition. . . . In Lozada, the court explained that [t]o
succeed in his bid for a writ of habeas corpus, the
petitioner must prove both (1) that his appointed habeas
counsel was ineffective, and (2) that his trial counsel
was ineffective.’’ (Internal quotation marks omitted.)
Adkins v. Commissioner of Correction, 185 Conn. App.
139, 150–51, 196 A.3d 1149, cert. denied, 330 Conn. 946,
196 A.3d 326 (2018).
‘‘To succeed on an ineffective assistance of appellate
counsel claim, the petitioner must satisfy both the per-
formance prong and the prejudice prong of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Small v. Commissioner of Correction,
286 Conn. 707, 712–13, 728, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L .Ed. 2d 336 (2008). In Strickland . . . the United
States Supreme Court enunciated the two requirements
that must be met before a petitioner is entitled to rever-
sal of a conviction due to ineffective assistance of coun-
sel. First, the [petitioner] must show that counsel’s per-
formance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable.’’ (Internal quotation
marks omitted.) Tutson v. Commissioner of Correc-
tion, 168 Conn. App. 108, 122, 144 A.3d 519, cert. denied,
323 Conn. 933, 150 A.3d 233 (2016).
‘‘The standard of appellate review of habeas corpus
proceedings is well settled. The underlying historical
facts found by the habeas court may not be disturbed
unless the findings were clearly erroneous. . . . His-
torical facts constitute a recital of external events and
the credibility of their narrators. So-called mixed ques-
tions of fact and law, which require the application of
a legal standard to the historical-fact determinations,
are not facts in this sense. . . . Whether the represen-
tation a defendant received at trial was constitutionally
inadequate is a mixed question of law and fact. . . .
As such, that question requires plenary review by this
court unfettered by the clearly erroneous standard.’’
(Internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, 285 Conn. 556, 576, 941 A.2d
248 (2008).
As an initial matter, it is undisputed that Drapp with-
drew the appeal at the direction of the petitioner. The
parties, however, disagree on the proper framework for
evaluating Drapp’s performance. The parties do not cite,
nor are we aware of, any case directly addressing an
ineffective assistance of counsel claim wherein an attor-
ney withdrew an appeal at the petitioner’s direction
after it had been filed and briefed.5 The respondent
argues that the court’s inquiry into Drapp’s performance
should end with the finding that the petitioner
instructed him to withdraw the appeal. The petitioner
argues that the circumstances leading up to the with-
drawal are part and parcel of the petitioner’s claim.
Specifically, the petitioner argues that Drapp performed
deficiently when he failed to inform him that he could
proceed as a self-represented party and, thus, he
believed that his only options were to proceed with
an appeal that he did not believe could succeed or to
withdraw the appeal. The respondent counters that this
is a freestanding claim that the petitioner was required
to plead separately on appeal and, therefore, this court
cannot properly consider Drapp’s advice leading to the
petitioner’s decision to instruct him to withdraw the
appeal when reviewing his performance.
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . It is fundamental in our law that the right
of a plaintiff to recover is limited to the allegations of
his complaint. . . . [Although] the habeas court has
considerable discretion to frame a remedy that is com-
mensurate with the scope of the established constitu-
tional violations . . . it does not have the discretion to
look beyond the pleadings and trial evidence to decide
claims not raised. . . . The purpose of the [petition] is
to put the [respondent] on notice of the claims made,
to limit the issues to be decided, and to prevent surprise.
. . . [T]he [petition] must be read in its entirety in such
a way as to give effect to the pleading with reference
to the general theory upon which it proceeded, and
do substantial justice between the parties.’’ (Internal
quotation marks omitted.) Newland v. Commissioner
of Correction, 322 Conn. 664, 678, 142 A.3d 1095 (2016).
In the present case, the amended petition alleged, in
relevant part, that ‘‘habeas appellate counsel, Attorney
Drapp, was ineffective for withdrawing the petitioner’s
first habeas appeal.’’ There was no further explanation
within the petition for a writ of habeas corpus regarding
the petitioner’s theory of the case for this claim. The
habeas court certified one issue for this court on appeal,
that is: ‘‘Whether the court erred in finding that the
petitioner failed to prove ineffective assistance of appel-
late counsel for withdrawing the petitioner’s first
habeas appeal.’’
In support of its position, the respondent relies on
Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145
L. Ed. 2d 985 (2000). ‘‘If counsel has consulted with
the defendant, the question of deficient performance is
easily answered: Counsel performs in a professionally
unreasonable manner only by failing to follow the defen-
dant’s express instructions with respect to an appeal.’’
Id., 478. Thus, the state argues, it would have been
ineffective for Drapp not to have withdrawn the appeal
after the petitioner had instructed him to do so, and
that should end the court’s review of his performance.
In Roe, the Supreme Court considered the ‘‘proper
framework for evaluating an ineffective assistance of
counsel claim, based on counsel’s failure to file a notice
of appeal without [the] respondent’s consent.’’ Id., 473.
The court reasoned: ‘‘We have long held that a lawyer
who disregards specific instructions from the defendant
to file a notice of appeal acts in a manner that is profes-
sionally unreasonable. . . . This is so because a defen-
dant who instructs counsel to initiate an appeal reason-
ably relies upon counsel to file the necessary notice.
Counsel’s failure to do so cannot be considered a strate-
gic decision; filing a notice of appeal is a purely ministe-
rial task, and the failure to file reflects inattention to the
defendant’s wishes. At the other end of the spectrum,
a defendant who explicitly tells his attorney not to
file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed defi-
ciently. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.
Ct. 3308, 77 L .Ed. 2d 987 (1983) (accused has ultimate
authority to make fundamental decision whether to take
an appeal).’’ (Citations omitted; emphasis altered.)
Id., 477.
The petitioner disagrees and asserts that his ‘‘claim
that counsel was ineffective for withdrawing his appeal
requires this court to look at the context in which the
appeal was withdrawn,’’ which ‘‘necessitates this court
to examine the . . . advice given leading up to coun-
sel’s withdrawal of [his] appeal.’’ We need not resolve
this question in the present case, however, because our
analysis would reach the same conclusion even if we
take the more expansive view of Drapp’s performance
as urged by the petitioner.
We agree with the habeas court that Drapp acted
reasonably in withdrawing the appeal. The petitioner
had written a letter directing Drapp to withdraw the
appeal. Drapp then met with the petitioner who,
throughout the conversation, continued to express his
desire to withdraw the appeal. In subsequent correspon-
dence, the petitioner indicated for a third time that he
still wished for Drapp to withdraw his appeal. Evaluat-
ing counsel’s conduct from his perspective at the time,
we cannot conclude that it fell below an objective stan-
dard of reasonableness for Drapp to withdraw the
appeal. Guided by Roe, we agree with the respondent
that it would have been unreasonable for Drapp to
ignore the petitioner’s directive to withdraw the appeal
under the circumstances.
Moreover, the petitioner’s argument that Drapp per-
formed deficiently by failing to advise him that he had
the right to proceed as a self-represented party is also
unpersuasive. Under the sixth amendment to the United
States constitution, an accused is guaranteed the right
to represent himself. See Faretta v. California, 422 U.S.
806, 819–20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
A criminal defendant is entitled to proceed as a self-
represented party if he knowingly, voluntarily, and
unequivocally waives his right to appointed counsel.
See id., 835. Our Supreme Court has stated that ‘‘[t]he
court is not obligated to suggest self-representation to
a defendant as an option simply because the defendant
repeatedly expressed dissatisfaction with his court-
appointed counsel.’’ (Internal quotation marks omit-
ted.) State v. Pires, 310 Conn. 222, 249, 77 A.3d 87 (2013).
Indeed, ‘‘because self-representation relinquishes . . .
many of the traditional benefits associated with the
right to counsel . . . the right to self-representation
does not attach unless it is asserted clearly and unequiv-
ocally . . . .’’ (Citation omitted; internal quotation
marks omitted.) United States v. Barnes, 693 F.3d 261,
271 (2d Cir. 2012), cert. denied, 568 U.S. 1113, 133 S.
Ct. 917, 184 L. Ed. 2d 704 (2013).
In the present case, the petitioner’s expressed dissat-
isfaction with Drapp’s choice of claims to raise on
appeal did not confer a duty on Drapp to explain to
the petitioner his right to proceed as a self-represented
party. The petitioner did not indicate to Drapp that he
was interested in proceeding as self-represented, thus,
there was no reason for Drapp to discuss the attendant
rights with him. We conclude, therefore, that Drapp did
not render ineffective assistance by failing to do so.
For the foregoing reasons, we agree with the court
that Drapp’s performance was not deficient. Because
we agree with the habeas court that Drapp did not
perform deficiently, we need not reach the issue of
prejudice. See Ouellette v. Commissioner of Correc-
tion, 154 Conn. App. 433, 448 n.9, 107 A.3d 480 (2014)
(‘‘[a] court evaluating an ineffective assistance claim
need not address both components of the Strickland
test if the [claimant] makes an insufficient showing on
one’’ [internal quotation marks omitted]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner is also known as David A. Abrahams. His conviction in
the case underlying his habeas petition was confirmed by this court in State
v. Abrahams, 79 Conn. App. 767, 831 A.2d 299 (2003). Because, when the
petitioner testified at the habeas trial, he identified himself as David Abrams
and also indicated that his name has been misspelled in the record, we use
the name David A. Abrams in this appeal. There is no dispute that David
A. Abrahams and David A. Abrams are the same individual.
2
Practice Book § 63-9 provides in relevant part: ‘‘Prior to oral argument
or the date the appeal is assigned for disposition without oral argument,
an appeal or writ of error may be withdrawn as of right by filing form JD-
AC-008 with the appellate clerk. . . .’’
3
On appeal, the petitioner also argues that the habeas court erred in
concluding that Drapp did not render ineffective assistance because he
failed to raise numerous assertedly viable appellate issues in his appellate
brief, which ultimately caused the petitioner to direct Drapp to withdraw
the appeal on his behalf. The petitioner, however, raised one issue in his
petition for a writ of habeas corpus and one question was certified by
the habeas court for appeal, that is, whether Drapp was ineffective for
withdrawing the petitioner’s appeal from the denial of his first petition for
a writ of habeas corpus. Whether Drapp was ineffective for failing to raise
all of the purportedly meritorious issues available to him in the appeal to
this court is a distinct question. See, e.g. Small v. Commissioner of Correc-
tion, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008) (petitioner
claimed that appellate counsel rendered ineffective assistance in failing to
raise certain claims on direct appeal). It is well settled that the right of a
petitioner to relief is limited to the allegations raised in his petition. See
Newland v. Commissioner of Correction, 322 Conn. 664, 678, 142 A.3d 1095
(2016). The petitioner, however, failed to plead this issue in his petition or
raise it as a distinct claim in his appellate brief. Thus, it is not reviewable.
4
Specifically, the petitioner was sentenced in the underlying criminal
prosecution to a total effective sentence of forty-six years of incarceration,
followed by nine years of special parole. He was also found by the court
to be in violation of probation and was sentenced to an additional five years
of incarceration to run consecutive to all other sentences.
5
Our Supreme Court has been asked to consider the question before, but
has never reached the merits of the issue. See Kaddah v. Commissioner
of Correction, 299 Conn. 129, 139–40, 7 A.3d 911 (2010) (concluding that
petitioner did not allege ineffectiveness by particular attorney who had
represented him when appeal was withdrawn and, thus, failed to state
claim on which relief could be granted). Our Supreme Court, however, has
considered whether counsel was ineffective for failing to advise a defendant
of the right to appeal; see, e.g., Ghant v. Commissioner of Correction, 255
Conn. 1, 761 A.2d 740 (2000); how Strickland should apply to the failure
to file a timely appeal altogether; see, e.g., Iovieno v. Commissioner of
Correction, 242 Conn. 689, 699 A.2d 1003 (1997); and whether an attorney
was ineffective for failing to plead and argue certain issues on direct appeal.
See, e.g., Small v. Commissioner of Correction, supra, 286 Conn. 707.