Opinion

PALMER, J.

After the defendant, Frank M. Jenkins, was arrested and charged with various offenses, the trial court determined that he was not competent to stand trial and ordered him to be placed as an inpatient at a mental health facility for treatment pursuant to General Statutes § 54-56d (i) for three nonconsecutive periods totaling twenty-one months. Thereafter, the defendant claimed that, because the placement periods cumulatively had exceeded eighteen months, the trial court was required, under General Statutes (Rev. to 2005) § 54-56d (m), to conduct a hearing to determine whether he should be released from treatment or civilly committed. The trial court rejected the defendant's claim, concluding that none of the defendant's individual placements for treatment had exceeded eighteen months. The defendant then brought this appeal, claiming that placements for treatment must be treated cumulatively for purposes of applying the eighteen month time limitation of § 54-56d (i). We agree with the defendant's construction of § 54-56d (i). Accordingly, we reverse the trial court's decision and remand the case for a determination of the relief to which the defendant is entitled.

The record reveals the following undisputed facts and procedural history. The defendant was arrested in November, 2002, and initially was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the second degree in violation of General Statutes § 53a-96, and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21, as amended by Public Acts 2002, No. 02-138, § 4. On December 11, 2002, the trial court, Holden, J., determined that the defendant was not competent to stand trial, but was restorable to competency, and, pursuant to § 54-56d (i), ordered him to be placed for inpatient treatment at a mental health facility. The defendant remained in treatment for a period of eight months, from December 11, 2002, through August 15, 2003, at which time the trial court, Ronan, J., determined that he had regained competency. Thereafter, on April 28, 2004, the trial court, Carroll, J., determined that the defendant again had become incompetent to stand trial, and he again was placed for treatment for a period of eight months, from April 28 through December 21, 2004. On December 21, 2004, the trial court, Carroll, J., determined that the defendant again had regained competency. Thereafter, the trial court, Carroll, J., determined for a third time that the defendant was incompetent, and he again was placed for treatment for a period of five months, from August 23, 2005, through January 17, 2006. On January 17, 2006, the trial court, B. Fischer, J., determined that the defendant had regained competency. Thereafter, the trial court ordered that the defendant attend weekly competency maintenance sessions.

On April 17, 2006, the state filed a substitute information charging the defendant with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree and risk of injury to a child. Two days later, the defendant filed a motion to dismiss the substitute information. See footnote 4 of this opinion. In that motion, the defendant claimed, inter alia, that, because his placements for treatment under § 54-56d (i) cumulatively had exceeded the statute's eighteen month limitation period, the trial court must either release him from custody or place him in the custody of the commissioner of mental health and addiction services, the commissioner of children and families or the commissioner of mental retardation (now the commissioner of developmental services) for civil commitment proceedings. See General Statutes (Rev. to 2005) § 54-56d (m). After conducting a hearing on the defendant's motion, the trial court concluded that the eighteen month limitation period "is provided to restore the defendant to competence. In the present case, the defendant was restored to competence on three separate dates well within the eighteen month statutory period. . . . Only if a defendant can no longer be restored to competence within the eighteen month time limitation does the court proceed to [§ 54-56d(m)], which requires the release or placement of the defendant." (Emphasis in original.) Because none of the defendant's individual treatment periods restoring him to competency had exceeded eighteen months, the trial court denied his request for a release from custody or a hearing pursuant to § 54-56d (m).

This appeal followed. The defendant claims that the trial court improperly determined that the eighteen month limitation period set forth in § 54-56d (i) was not exceeded in this case because none of the defendant's individual placement periods had exceeded eighteen consecutive months. He claims that multiple placements for treatment must be treated cumulatively under the statute. We agree.

Before addressing the merits of the defendant's claim, we first must determine whether the trial court's decision was an appealable final judgment. "It is well established that the subject matter jurisdiction of the Appellate Court and of this court is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court." (Emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). "In a criminal proceeding, there is no final judgment until the imposition of a sentence." (Internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 63, 658 A.2d 947 (1995), overruled in part on other grounds by State v. Jacobs, 265 Conn. 396, 828 A.2d 587 (2003). "We previously have determined [however] that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under . . . § 52-263. . . . In State v. Curcio, [ 191 Conn. 27, 31,463 A.2d 566 (1983)], we explicated two situations in which a party can appeal an otherwise interlocutory order: (1) [when] the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them. . . .

"The second prong of the Curcio test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that the defendant will be irreparably harmed if appellate review is delayed until final adjudication . . . is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a colorable claim that some recognized statutory or constitutional right is at risk." (Internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 568-69, 923 A.2d 688 (2007).

In Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the United States Supreme Court held that, under the due process clause of the fourteenth amendment to the federal constitution, "a person charged by a [s]tate with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the [s]tate must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant." Id., 738. Section 54-56d codifies this aspect of the constitutional right to due process. See State v. Garcia, 235 Conn. 671, 674, 669 A.2d 573 (1996). We conclude, therefore, that the defendant's claim that the eighteen month limitation period of § 54-56d (i) has been exceeded and that he is entitled either to immediate release or to civil commitment proceedings implicates a constitutional right, embodied in § 54-56d, already secured to him. Moreover, if the trial court's decision is erroneous, "that right will be irretrievably lost and the [defendant will be] irreparably harmed unless [he] may immediately appeal." (Internal quotation marks omitted.) Vejseli v. Pasha, supra, 282 Conn. 569; see also United States v. Gold, 790 F.2d 235, 238-39 (2d Cir. 1986) (trial court's order committing defendant to restore his competency to stand trial implicates liberty interest that would be lost if order were not subject to immediate appellate review); State v. Garcia, supra, 233 Conn. 66 (trial court's order requiring that defendant be medicated involuntarily for purpose of restoring his competency to stand trial implicates liberty interest protected by due process clause and may be appealed immediately under second prong of Curcio). Accordingly, we conclude that the trial court's decision is subject to appellate review under the second prong of Curcio.

We turn, therefore, to the merits of the defendant's claim. Whether the eighteen month limitation period set forth in § 54-56d (i) refers to the cumulative total of all of the defendant's placements for treatment or, instead, refers to each individual placement is a question of statutory interpretation over which our review is plenary. See, e.g., Windels v. Environmental Protection Commission, 284 Conn. 268, 294, 933 A.2d 256 (2007).

"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 manner, 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 seeking 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 meaning 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. . . . 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 legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Internal quotation marks omitted.) Id., 294-95.

We begin our analysis with the language of the statute. General Statutes § 54-56d (i) provides in relevant part: "(1) The period of placement under the order or combination of orders shall not exceed the period of the maximum sentence which the defendant could receive on conviction of the charges against the defendant or eighteen months, whichever is less. . . ." The defendant contends that, because the phrase "period of placement" is followed by the phrase "under the order or combination of orders"; (emphasis added) General Statutes § 54-56d (i); it clearly refers to the cumulative total of all of the placement orders issued by the trial court. The state contends, however, that if a defendant has been found incompetent and placed for treatment pursuant to § 54-56d (i), § 54-56d (k) requires the trial court to reconsider the defendant's competency every ninety days and to discontinue, continue or modify the original placement order at that time. Accordingly, the state argues that the phrase "combination of orders" reasonably may be interpreted to refer to the orders issued after each mandatory reconsideration during a single placement period, and not to the orders for placement issued upon distinct determinations of incompetence. We conclude that the phrase "period of placement" is ambiguous as to whether it means the cumulative total of all of the defendant's placements or each individual period of placement.12 Accordingly, we may consider the statute's legislative history, the circumstances surrounding its enactment and the legislative policy that it was designed to implement in determining the meaning of that phrase.

As we have indicated, the United States Supreme Court has held, under the due process clause of the fourteenth amendment, that a defendant who is incompetent to stand trial cannot be held for a longer time than is reasonably necessary to determine whether a substantial probability exists that he will attain competency in the foreseeable future. Jackson v. Indiana, supra, 406 U.S. 738. If such a probability cannot be established, then the state must either initiate civil commitment proceedings or release the defendant. Id. "[I]f it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal." Id. These constitutional requirements are predicated on the concern that the procedures for pretrial placement of an incompetent defendant for treatment are substantially different from, and provide fewer protections than, the procedures for civil commitment. See id., 727. Compare General Statutes § 54-56d with General Statutes §§ 17a-75 through 17a-83 (procedures for commitment of mentally ill children), General Statutes (Rev. to 2007 and Sup. 2008) §§ 17a-274 through 17a-277, and 17a-282 (procedures for involuntary placement with department of developmental services, formerly department of mental retardation), and General Statutes §§ 17a-495 through 17a-528 (procedures for commitment of person with psychiatric disabilities). The court in Jackson also expressed concern that committing an incompetent defendant for an indefinite period could violate the sixth amendment right to a speedy trial. See Jackson v. Indiana, supra, 740. Section 54-56d (i) was enacted to address these constitutional concerns. See State v. Garcia, supra, 235 Conn. 674; see also 20 S. Proc., Pt. 7, 1977 Sess., p. 2926, remarks of Senator Salvatore C. DePiano (proposed legislation now codified at § 54-56d [i] "was motivated by the United States Supreme Court decision [in Jackson] and in order to put Connecticut in line with that decision"); 20 H.R. Proc., Pt. 8, 1977 Sess., p. 3105, remarks of Representative Ernest N. Abate (explaining that predecessor to § 54-56d [i], providing that incompetent defendant could be placed for treatment for longer of eighteen months or period of maximum sentence that defendant could receive, was unconstitutional under Jackson).

Under the trial court's interpretation of § 54-56d (i), if an incompetent defendant is restored to competency after being placed for treatment but becomes incompetent again when treatment is discontinued, he may be subject to an unlimited number of placements that individually last less than eighteen months but that cumulatively exceed both the statute's eighteen month limitation period and the maximum sentence that the defendant could receive. The trial court apparently agreed, as the state contends, that the court's concerns in Jackson about indefinite placement for treatment were not implicated in the present case because all of the defendant's individual placements for treatment were temporary.

The court in Jackson, however, was not concerned primarily with the duration of individual periods of pretrial placement for treatment. Rather, the case most reasonably can be understood as addressing the constitutional concerns raised by an extended delay between the initial determination of incompetence and either (1) the restoration of a defendant's competency actually to stand trial, or (2) the release of, or institution of civil commitment proceedings against, a defendant who cannot be restored to competency. See Jackson v. Indiana, supra, 406 U.S. 738 (state must determine within "reasonable period of time" after determination of incompetence whether there is substantial probability that incompetent defendant can be restored to competency "in the foreseeable future"); see also id. (to commit incompetent defendant who can be restored to competency, state must determine that "the defendant probably soon will be able to stand trial" [emphasis added]). To allay its concerns about indefinite pretrial placement for treatment, the court in Jackson imposed two time requirements on the government. First, the government must determine within a "reasonable period of time" after the initial determination of incompetence whether there is a substantial probability that the defendant can be restored to competency. Id. If there is not, then the defendant is entitled to immediate release or to the institution of commitment proceedings. Id. Second, if a defendant is restorable, he must be able to stand trial "in the foreseeable future" or "soon" after the determination of restorability is made. Id. Thus, if a defendant is not able actually to stand trial "soon" after the court makes its initial determination that he is restorable, he must be treated as non-restorable and either must be released or afforded civil commitment proceedings. See id. Nothing in Jackson suggests that the government constitutionally may subject a defendant to multiple pretrial placements for treatment over an indefinite period, as long as each period of placement is less than eighteen months and the defendant is briefly restored to competency between each finding of incompetence, and we cannot conceive why that would be the case.

It is clear, on the basis of the foregoing background, that, when the legislature amended what is now § 5456d in response to Jackson, it was attempting to ensure that incompetent defendants would stand trial, be released or be subject to civil commitment proceedings "within the foreseeable future" or "soon" after the initial determination of incompetence. Id. Thus, the statute most reasonably can be understood as providing that, after a defendant has been found incompetent to stand trial but restorable to competency, the cumulative total of the defendant's placements for treatment cannot exceed the period of the maximum sentence that the defendant could receive or eighteen months, whichever is less. In light of the principles articulated in Jackson, a different interpretation of § 54-56d (i) would place it in serious constitutional jeopardy, a result that we must seek to avoid. See, e.g., Clark v. Commissioner of Correction, 281 Conn. 380, 405, 917 A.2d 1 (2007) ("[i]n choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent" [internal quotation marks omitted]). We therefore agree with the defendant that the trial court improperly determined that it was authorized under § 54-56d (i) to place the defendant for treatment for multiple periods that cumulatively exceeded the eighteen month limitation period.

Our conclusion is consistent with the analysis and decision of the Michigan Court of Appeals in People v. Miller, 186 Mich. App. 238,463 N.W.2d 250 (1990), rev'd in part on other grounds, 440 Mich. 631, 489 N.W.2d 60 (1992). In Miller, the court considered whether, under a Michigan statute¹⁷ analogous to § 54-56d (i), a defendant's placement periods should be treated cumulatively. See id., 241. The court concluded that the time limitation, which under the Michigan statute was fifteen months, "was to run from the initial adjudication of incompetency as opposed to starting anew upon each subsequent adjudication." Id. The court reasoned: "[T]his interpretation is in keeping with the purpose and object sought to be accomplished by the statute, which is to protect defendants from an indefinite suspension of their right to trial. . . . Indeed, it would be anomalous to say that, although this concern is clearly present [when] a defendant has been adjudicated incompetent for a period of fifteen continuous months, it is not so [when] there is a total period of in competency well over fifteen months, although the period is not continuous. . . .

"We believe that, had the [l]egislature intended for dismissal to occur only upon an adjudication of incompetency for fifteen continuous months, it would have explicitly said so through the use of appropriate language." (Citation omitted.) Id., 241-42.

We recognize that the language of the Michigan statute differs from that of § 54-56d (i). Specifically, the Michigan statute provides that the charges against a defendant determined to be incompetent shall be dismissed "[f]ifteen months after the date on which the defendant was originally determined incompetent to stand trial." (Emphasis added.) Mich. Comp. Laws Serv. § 330.2044 (1) (b) (LexisNexis 2005). As the state notes, the court in Miller relied in part on the inclusion of the word "originally" in the statute in determining that "the [l]egislature specifically considered the possibility of there being separate adjudications of incompetency and, in such a situation, concluded that the fifteen-month period was to run from the initial adjudication of incompetency as opposed to starting anew upon each subsequent adjudication." People v. Miller, supra, 186 Mich. App. 241. The court in Miller, however, also relied on the purpose of the statute, which was to ensure that defendants are not subject to indefinite pretrial placement for treatment. Id. That constitutional concern also underlay the United States Supreme Court's decision in Jackson, which § 54-56d (i) was intended to embrace. Accordingly, we find persuasive the court's holding in Miller that each new determination of incompetence did not cause the limitation period of the Michigan statute to start anew.