State v. Freeman

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   STATE OF CONNECTICUT v. TERRY FREEMAN
                 (SC 20554)
             Robinson, C. J., and McDonald, D’Auria, Mullins,
                      Kahn, Ecker and Keller, Js.*

                                  Syllabus

Convicted, on a conditional plea of nolo contendere, of the crime of robbery
   in the first degree, the defendant appealed to the Appellate Court, claiming that his prosecution was time barred by the applicable five year
   statute of limitations ((Rev. to 2017) § 54-193 (b)) because, although the
   warrant for his arrest was issued two weeks before the expiration of
   the limitation period set forth in § 54-193 (b), it was executed one week
   after its expiration. The defendant had filed a motion to dismiss, which
   the trial court denied, finding that, because there was at least some
   evidence that the state had made efforts to execute the warrant before
   the expiration of the limitation period, the delay in the execution of the
   warrant was reasonable. At the hearing on that motion, the prosecutor
   relied on a stipulation of facts setting forth a relevant chronology of
   events. The stipulation provided that, while incarcerated on unrelated
   charges in early November, 2018, the defendant confessed to his involvement in the robbery, which occurred on November 29, 2013. On November 19, 2018, the police obtained a signed warrant for the defendant’s
   arrest and requested that the Office of the State’s Attorney prepare an
   application for a writ of habeas corpus to have the defendant transported
   from the correctional facility at which he was incarcerated to the trial
   court, where he could be served with the warrant. The Office of the
   State’s Attorney prepared the application for a writ of habeas corpus
   on November 21, 2018, but it was not signed until November 27, 2018.
   Thereafter, on December 6, 2018, the defendant was transported to
   court, where he was served with the warrant. The prosecutor adduced
   no additional evidence at the hearing, aside from the arrest warrant and
   the writ of habeas corpus. When the trial court asked the prosecutor
   to explain the three week delay between the issuance and execution of
   the arrest warrant, he stated that the warrant was not picked up until
   two days after it was signed by the judge and that the Thanksgiving
   holiday took place during the period between when the application for
   the writ of habeas corpus was prepared and signed. He also explained
   that the procedure for transporting an inmate to court involves various
   factors, including staff availability, limits on how many inmates can
   be transported on a given day, and coordination among various state
   agencies, such that a one week delay between the signing of a writ of
   habeas corpus and the transport of an inmate was not unusual. On
   appeal to the Appellate Court from the denial of the defendant’s motion
   to dismiss, that court affirmed, concluding that the trial court had correctly determined that there was sufficient evidence to establish that
   the delay in the service of the arrest warrant after the expiration of the
   statute of limitations was reasonable. On the granting of certification,
   the defendant appealed to this court. Held that the state failed to satisfy
   its burden of establishing that it acted with due diligence in its efforts
   to execute the arrest warrant within the limitation period without unreasonable delay, and, accordingly, the judgment of the Appellate Court
   was reversed and the case was remanded with direction to reverse the
   trial court’s judgment and to order the trial court to grant the defendant’s
   motion to dismiss: once a defendant demonstrates his nonelusiveness
   and his availability for arrest during the time period between the issuance
   and the execution of a warrant, the burden shifts to the state to present
   evidence of its due diligence and reasonable efforts in executing the
   warrant, and this court clarified that, to satisfy that burden, the state
   must produce admissible evidence to explain the reasonableness of the
   delay and to demonstrate its due diligence, which does not include the
   unsworn factual representations of counsel, insofar as such assertions
   cannot be tested in the crucible of cross-examination; in the present
   case, the parties did not dispute that the defendant met his burden of
   demonstrating his availability for arrest during the statutory period and,
   therefore, that the burden shifted to the state to present evidence of its
   due diligence in executing the warrant; moreover, the stipulation on
   which the state relied was an unadorned chronology of events that,
   despite reflecting a three week delay between the issuance and execution
   of the arrest warrant, did not reveal the reasons for the various delays
   or explain how the efforts undertaken to execute the warrant reflected
   the state’s due diligence, no evidence was presented at the hearing to
   establish the facts underlying the prosecutor’s assertions that the delay
   was caused by a holiday and general logistical factors affecting the
   transportation of inmates, and the prosecutor could not explain why
   the state did not try to arrange for the transportation of the defendant
   before the expiration of the statute of limitations.
            (One justice concurring separately; three justices
                         dissenting in one opinion)
        Argued February 17—officially released August 30, 2022

                           Procedural History

  Information charging the defendant with the crimes
of robbery in the first degree, conspiracy to commit
robbery in the first degree, larceny in the fifth degree,
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of Ansonia-Milford, where the court, Brown, J., denied the defendant’s
motion to dismiss; thereafter, the defendant was presented to the court, Brown, J., on a conditional plea
of nolo contendere to the charge of robbery in the first
degree; judgment of guilty in accordance with the plea;
subsequently, the state entered a nolle prosequi as to
the charges of conspiracy to commit robbery in the first
degree and criminal possession of a firearm, and the
court dismissed the charge of larceny in the fifth degree;
thereafter, the defendant appealed to the Appellate
Court, Bright, C. J., and Cradle and Alexander, Js.,
which affirmed the trial court’s judgment, and the defendant, on the granting of certification, appealed to this
court. Reversed; judgment directed.
  James E. Mortimer, assigned counsel, for the appellant (defendant).
   Thadius L. Bochain, deputy assistant state’s attorney, with whom, on the brief, were Margaret E. Kelley,
state’s attorney, Matthew R. Kalthoff, assistant state’s
attorney, and Samantha L. Oden, former deputy assistant state’s attorney, for the appellee (state).
                         Opinion

   ECKER, J. The defendant, Terry Freeman, appeals
from the judgment of the Appellate Court affirming his
conviction of robbery in the first degree in violation of
General Statutes § 53a-134 (a) (3), following the entry
of a conditional plea of nolo contendere. The sole issue
on appeal is whether the prosecution of the defendant
was time barred by the five year statute of limitations
set forth in General Statutes (Rev. to 2017) § 54-193 (b)1
on the ground that the state failed to establish that the
warrant for the defendant’s arrest was executed without
unreasonable delay. See State v. Swebilius, 

, 

 (2017); State v. Crawford, 

, 

 (1987). We conclude that
the state failed to produce sufficient evidence to establish that the arrest warrant was executed with due diligence, and, accordingly, we reverse the judgment of
the Appellate Court.
   The Appellate Court’s opinion sets forth the following
relevant facts, which we supplement with additional
undisputed facts as necessary. ‘‘On November 5, 2018,
Jeffrey Gabianelli, a detective with the West Haven
Police Department, received a letter from the defendant
containing information about an armed robbery that
had occurred at the Wine Press Liquor Store in West
Haven on November 29, 2013. The next day, Gabianelli
visited the defendant at the Carl Robinson Correctional
Institution in Enfield, where the defendant was incarcerated on unrelated charges. The defendant confessed
to Gabianelli as to his involvement in the November
29, 2013 robbery. On November 9, 2018, Gabianelli prepared an arrest warrant. On November 15, 2018, a Superior Court judge signed the warrant. On November 19,
2018, John Laychak, a West Haven police officer, obtained
the signed warrant and submitted a request that the
Office of the State’s Attorney prepare an application
for a writ of habeas corpus to transport the defendant
to the Superior Court in the judicial district of AnsoniaMilford for service of the arrest warrant. On November
21, 2018, the Office of the State’s Attorney prepared the
application for a writ of habeas corpus requesting that
the defendant be transported to the court on December
6, 2018. On November 27, 2018, a prosecutor and a
clerk of the court signed the writ of habeas corpus. On
December 6, 2018, the defendant was transported to
the Superior Court where he was served with the
arrest warrant.
   ‘‘Thereafter, the defendant filed a motion to dismiss,
claiming that the prosecution was barred due to the
lapse of the five year statute of limitations set forth in
§ 54-193 (b). The defendant argued that the statute of
limitations had lapsed on November 29, 2018, five years
after the robbery had occurred, and that the state had
failed to proffer sufficient evidence to show that the
delay in the execution of the arrest warrant until Decem-
ber 6, 2018, was reasonable.’’ (Footnotes omitted.) State
v. Freeman, 

, 557–58, 

 (2020).
  The trial court, Brown, J., held an evidentiary hearing
on the defendant’s motion to dismiss. The prosecutor
conceded that the defendant had met his burden of
demonstrating that he ‘‘lived openly, was nonelusive,
and was available for arrest throughout the relevant
period of limitation’’ and, thus, that the burden shifted to
the state to demonstrate that the warrant was executed
without unreasonable delay. See State v. 

 (‘‘[o]nce the defendant has presented evidence of his availability for arrest, it is reasonable and proper that the burden should then shift to the
state to explain why, notwithstanding the defendant’s
availability during the statutory period, the delay in his
arrest was reasonable’’). To fulfill that burden, the state
relied on a written stipulation of facts agreed on by
the parties, which set forth the relevant chronology of
events described previously in this opinion. The state
adduced no additional evidence, aside from the arrest
warrant application issued on November 15, 2018, and
the writ of habeas corpus dated November 21, 2018.
   The trial court asked the prosecutor to explain the
delay between the issuance of the arrest warrant on
November 15, and its execution on December 6. The
prosecutor explained that the court liaison officer did
not pick up the signed warrant until Monday, November
19, and that he had no ‘‘information as to why [the
warrant] wasn’t picked up on [that] Friday [i.e., November 16],’’ but ‘‘the court liaison officer would . . . pick
up the warrant [only] during the business day, so that
would account, at least in part, for that four day gap
. . . .’’ The prosecutor did not offer an explanation for
the two day gap between November 19, and November
21, the date on which the state prepared the application
for the writ of habeas corpus. Regarding the six day
gap between November 21, and November 27, the date
on which the writ of habeas corpus was signed, the
prosecutor explained that Thursday, November 22, was
the Thanksgiving holiday and that Friday, November
23, was ‘‘a relatively light day . . . .’’ As for the nine
day gap between November 27, and December 6, the
date on which the defendant was transported and the
warrant was executed, the prosecutor explained that
the transport was arranged ‘‘as a matter of course’’ in
light of the various ‘‘factors that play in effectuating
the transport of an inmate to [the] court,’’ such as the
availability of staff, the maximum number of inmates
that may be transported on a given day, and the necessary coordination among the relevant state agencies.
The prosecutor ‘‘could offer no explanation as to why
the defendant was not transported to court for service
of the warrant on or before November 29, 2018, except
to say that a one week delay between the signing of
a habeas writ and the transport of a defendant was
not unusual.’’
   The trial court denied the defendant’s motion to dismiss, finding ‘‘that the state, in fact, made at least some
effort to execute the warrant on or before November
29, 2018. The state acted reasonably and diligently to
follow up on the defendant’s letter, to obtain his confession, and to prepare an arrest warrant for court review
and action. Once the warrant was issued, the state acted
reasonably and made at least some effort to have the
defendant brought to court for execution of the warrant.’’ Although the statute of limitations expired seven
days before the warrant was executed, the trial court
found ‘‘at least some evidence explaining why the delay
was reasonable. The writ had to be prepared and
approved before the defendant could be ordered transported
to court.’’ Significantly, the court noted that ‘‘[t]he state
should have been more mindful that, as of November
15, 2018, [the state] . . . had [only] fourteen more days
to get the warrant executed to be within the five year
limitation period’’ but determined that, because the
state made some ‘‘efforts to meet the November 29,
2018 [expiration] date,’’ the delay in the execution of
the warrant was reasonable.
  The defendant thereafter entered a conditional plea
of nolo contendere to the charge of robbery in the first
degree. The trial court sentenced the defendant to one
year of imprisonment, consecutive to his current sentence.
  The defendant appealed from the trial court’s judgment to the Appellate Court, claiming that the trial court
had improperly denied his motion to dismiss because
(1) it misinterpreted and misapplied the legal standard
set forth in State v. 

,
and State v. 

, and (2)
there was insufficient evidence to establish that the
delay in the service of the arrest warrant after the expiration of the statute of limitations was reasonable. See
State v. Freeman, supra, 

. The Appellate
Court rejected the defendant’s first claim, explaining
that Swebilius neither ‘‘qualif[ies] the efforts the state
must show to satisfy its burden nor explain[s] the
degree of effort necessary.’’ Id., 563. Instead, ‘‘the state
must prove that any delay in serving the warrant beyond
the statute of limitations was reasonable. What efforts
the state made to accomplish service and the reasons
why service was not accomplished before the statute
of limitations expired are necessary parts of the court’s
reasonableness analysis.’’ Id., 564. The Appellate Court
concluded that ‘‘the [trial] court applied the correct
legal test as set forth by [this court] in Swebilius and
by [the Appellate Court] in [other cases].’’ Id., 566.
  Regarding the sufficiency of the evidence produced
by the state, the Appellate Court determined that the
state had fulfilled its burden of demonstrating that it
made reasonable efforts to obtain and execute the
arrest warrant, reasoning that, ‘‘[f]ollowing the defendant’s confession to [the detective], the state made continuous efforts to obtain a warrant and to facilitate
the appropriate transportation of the defendant to the
Superior Court for the execution of that warrant; efforts
that were all made before the statute of limitations
expired.’’ Id. Although the defendant was not transported and served with the warrant until seven days
after the expiration of the statute of limitations, the
Appellate Court opined that ‘‘the nine day delay from
the signing of the habeas writ to the transportation of
the defendant was not unusual, as a matter of course,
given the logistical, practical and safety precautions
that must be taken whenever an incarcerated individual
is transported from a correctional facility to a courthouse.’’ Id., 567–68. The court further explained that it
was ‘‘within the purview of the trial court to use its
knowledge of the inner workings of the courts and the
process by which incarcerated persons are transported
to a court in its determination of the reasonableness of
the state’s efforts.’’ Id., 568. Accordingly, the Appellate
Court affirmed the judgment of conviction. Id.
   On appeal to this court,2 the defendant claims that
the Appellate Court improperly upheld the trial court’s
denial of his motion to dismiss on the basis of its conclusion that the state executed the arrest warrant without
unreasonable delay. The defendant contends that ‘‘[t]here
was no evidence of any effort by the state to attempt
to execute the warrant before the statute of limitations
expired or any evidence offered to explain why the
state’s failure to do so was reasonable under these
circumstances.’’ The state responds that the Appellate
Court correctly concluded that the trial court’s denial
of the defendant’s motion to dismiss was proper
because the state fulfilled its burden of proving that
the warrant was executed without unreasonable delay.
We agree with the defendant.
   The standard of review on a motion to dismiss is well
established. ‘‘Because a motion to dismiss effectively
challenges the jurisdiction of the court, asserting that
the state, as a matter of law and fact, cannot state a
proper cause of action against the defendant, our review
of the [trial] court’s legal conclusions and resulting
denial of the defendant’s motion to dismiss is de novo.’’
(Internal quotation marks omitted.) State v. A. B., 

, 55, 

 (2021). Whether a warrant
was executed within a reasonable period of time under
§ 54-193 (b) ordinarily ‘‘is a question of fact that will
depend on the circumstance of each case.’’ State v.

. In the present case,
however, the facts are undisputed, and the sole question
is whether the stipulated facts are sufficient to demonstrate that the state fulfilled its burden of proving that
it executed the warrant with due diligence. Under these
circumstances, we review the trial court’s reasonableness conclusion de novo. See Jones v. State, 

, 

 (2018) (observing that, ‘‘when the
facts are undisputed, determining the legal import of
those facts presents a question of law subject to de
novo review’’); One Country, LLC v. Johnson, 

, 300, 

 (2014) (‘‘when the facts are undisputed,’’ application of legal standard is ‘‘a question of
law over which we exercise plenary review’’); Connecticut Light & Power Co. v. Dept. of Public Utility Control,

, 

 (1991) (same); see also
Nelson v. State Farm Mutual Automobile Ins. Co., 

 (10th Cir. 2005) (‘‘[w]hether a court
properly applied a statute of limitations and the date a
statute of limitations accrues under undisputed facts
are questions of law we review de novo’’); Spitsyn v.
Moore, 

 (9th Cir. 2003) (‘‘[i]f the facts
underlying a claim for equitable tolling are undisputed,
the question of whether the statute of limitations should
be equitably tolled is . . . reviewed de novo’’).
   We begin our analysis with the relevant case law. In
State v. 

, this court held
that the issuance of an arrest warrant within the limitation period set forth in General Statutes (Rev. to 1983)
§ 54-193 (b) commences a prosecution for purposes of
satisfying the statute of limitations, so long as the warrant is executed without unreasonable delay. See id.,
450–51. In Crawford, the state had issued a warrant
for the arrest of the defendant, Ronald L. Crawford,
approximately two months after the commission of the
charged offenses, but the warrant was executed more
than one year after the statute of limitations lapsed.
Id., 445. Crawford filed a motion to dismiss the charges
against him, arguing that, because he was not prosecuted within the one year limitation period, the prosecution was time barred. Id. We explained that, ‘‘[w]hen
an arrest warrant has been issued, and the prosecutorial
official has promptly delivered it to a proper officer for
service, he has done all he can under our existing law
to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges
against him. When the prosecutorial authority has done
everything possible within the period of limitation to
evidence and effectuate an intent to prosecute, the statute of limitations is [satisfied].’’3 (Footnote omitted.)
Id., 450. ‘‘We recognize[d], however, that some limit as
to when an arrest warrant must be executed after its
issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation[s].’’ Id. We
therefore concluded that, ‘‘in order to [satisfy] the statute of limitations, an arrest warrant, when issued within
the time limitations . . . must be executed without
unreasonable delay.’’ Id., 450–51.
  We declined to ‘‘adopt a per se approach as to what
period of time to execute an arrest warrant is reasonable.’’ Id., 451. Instead, we clarified that ‘‘[a] reasonable
period of time is a question of fact that will depend on
the circumstances of each case. If the facts indicate
that an accused consciously eluded the authorities, or
for other reasons was difficult to apprehend, these factors will be considered in determining what time is
reasonable. If, on the other hand, the accused did not
relocate or take evasive action to avoid apprehension,
failure to execute an arrest warrant for even a short
period of time might be unreasonable and fail to [satisfy] the statute of limitations.’’ (Emphasis added.) Id.
   In State v. 

, we considered whether a brief delay in the execution of an arrest
warrant could be per se reasonable. The defendant,
Jon Swebilius, was arrested thirty-two days after the
issuance of the warrant for his arrest and thirteen days
after the expiration of the applicable five year statute
of limitations. 

. Swebilius ‘‘moved to dismiss the
charge on the ground that the prosecution was barred
by the statute of limitations because . . . the delay in
the execution of the warrant was unreasonable.’’ 

We concluded that the Appellate Court had ‘‘incorrectly
determined that some delays in the execution of an
arrest warrant may be so brief as to be reasonable
as a matter of law for the purpose of [satisfying] the
applicable statute of limitations.’’ 

.
   We explained that, ‘‘once the defendant has demonstrated his availability for arrest, he has done all that
is required to carry his burden; the burden then shifts
to the state to demonstrate that any period of delay in
executing the warrant was not unreasonable.’’ 

;
see State v. Woodtke, 

, 

 (2011). The ‘‘burden shifting scheme’’ required by
Swebilius ‘‘encourages diligence by law enforcement
officials in providing timely notice of charges to defendants.’’ State v. 

. We
‘‘decline[d] to specify the precise actions that [law enforcement officials] must undertake to serve a warrant with
due diligence, or the precise time line within which
they must act,’’ but held that ‘‘such officials must present some credible and persuasive factual basis for inaction when they fail to observe the statute of limitations.
This requirement is consistent with the principle that,
when a judicial doctrine, for all practical purposes,
extends the statute [of limitations] beyond its stated
term, that doctrine should be applied in only limited
circumstances . . . .’’ (Internal quotation marks omitted.) 

 808–809. We emphasized that such a rule ‘‘is
not intended to impose an undue burden on the state’’;

; but to effectuate ‘‘the purposes of statutes of
limitations,’’ namely, ‘‘prevent[ing] the unexpected enforcement of stale and fraudulent claims’’ and ‘‘aid[ing] in
the search for truth that may be impaired by the loss
of evidence’’ due to the passage of time. (Internal quotation marks omitted.) 

.
  The burden imposed on the state is not onerous,
but neither is it trivial. Although the dissent accurately
observes that Swebilius (on a single occasion) referred
to the requirement that the state ‘‘make some effort to
serve the arrest warrant before the relevant statute of
limitations expires’’; (emphasis added) 

; Swebilius otherwise uniformly characterized the state’s burden as requiring ‘‘reasonable efforts’’; (emphasis added)

; or evidence of ‘‘due diligence . . . .’’ 

;
accord 

 804 n.8, 812. The dissent is correct that these
standards are all ‘‘functionally equivalent’’—but they
are equivalent only if ‘‘some effort’’ is understood to
require reasonable and diligent efforts. The dissent goes
too far, and would empty Swebilius of its significance,
by suggesting that a single reference in Swebilius to
‘‘some effort,’’ in contrast to its more than one dozen
references to ‘‘reasonable efforts’’ and ‘‘due diligence,’’
means that the state satisfies its burden by making
anything less than reasonable and diligent efforts.
Indeed, that burden is no burden at all because it allows
the state to satisfy the statute of limitations by ignoring
it entirely, and simply to proceed with business while
exhibiting no regard for, or even awareness of, the
statutory deadline. That meaning is the opposite of what
Swebilius intended when it stated that ‘‘a rule making
some delays reasonable without any showing of due
diligence is inconsistent with the purposes of the statutes of limitations.’’ (Emphasis added.) State v. Swebi-

. We reaffirm that, once a
defendant’s availability for arrest is established, the
state must demonstrate that it made diligent efforts to
execute an arrest warrant within the limitation period
or ‘‘offer some evidence explaining why its failure to
do so was reasonable under the circumstances.’’4
(Emphasis added.) Id., 814; see State v. Ali, 

, 

 (1995) (‘‘the issuance of an arrest
warrant is sufficient ‘prosecution’ to satisfy the statute
of limitations only if the warrant is executed with due
diligence’’ (emphasis added)); State v. 

 (same).
   In the present case, the parties do not dispute that
the defendant fulfilled his burden of demonstrating his
availability for arrest during the statutory period and,
therefore, that the burden shifted to the state ‘‘to present evidence of its due diligence in executing the warrant.’’ State v. 

. We
emphasize that the requirement of ‘‘evidence’’ to satisfy
the state’s burden under Swebilius must not be overlooked. ‘‘Evidence’’ in this context means what it normally means, namely, the formal presentation in a
judicial proceeding of testimony, documents, or exhibits ‘‘ ‘to prove or disprove the existence of an alleged
fact . . . .’ ’’ Voris v. Middlesex Mutual Assurance Co.,

, 

 (2010), quoting Black’s
Law Dictionary (9th Ed. 2009) p. 635. ‘‘Fairly stated,
evidence legally is the means by which alleged matters
of fact are properly submitted to the trier of fact for
the purpose of proving a fact in issue. On the other
hand, ‘proof’ is the result or the effect of such ‘evidence.’
Moreover, [counsel’s] representations [are] not ‘testimony,’ which, in turn, when given under oath or stipulated to, is a species of ‘evidence.’ ’’ Cologne v. Westfarms Associates, 

, 153–54, 

(1985); see Federal National Mortgage Assn. v. Buhl,

, 

 (2018) (‘‘[u]n-
sworn ‘representations of counsel are not, legally speaking, evidence’ [on] which courts can rely’’), cert. denied,

, 

 (2019); Constantine v.
Schneider, 

, 

(1998) (same).
   To fulfill its burden of proof regarding the delay in
the execution of the warrant, the state was required to
produce admissible evidence to explain the delay. The
unsworn factual representations of counsel, which cannot be tested in the crucible of cross-examination, are
not evidence on which the state may rely to fulfill its
burden of production and persuasion. Cf. Texas Dept.
of Community Affairs v. Burdine, 

, 255
n.9, 

, 

 (1981) (party
bearing evidentiary burden of proof ‘‘cannot meet its
burden merely through . . . argument of counsel’’);
Pretzantzin v. Holder, 

 (2d Cir. 2013)
(government failed to fulfill burden of production
because ‘‘the arguments of counsel are not evidence
. . . and the [g]overnment failed to make any evidentiary proffer’’ (citation omitted)). This important precept derives from the recognition that ‘‘[s]tatements as
to facts that have not been proven [or subject to cross-examination] amount to unsworn [and unchecked] testimony . . . .’’ (Internal quotation marks omitted.)
State v. Singh, 

, 

 (2002).
Allowing assertions of counsel to serve as evidence,
moreover, erases the elemental and crucial distinction
between advocate and witness in our adversary system.
See Rules of Professional Conduct 3.7 (prohibiting lawyer from testifying as witness except in certain circumstances not at issue in present case).
   The question, then, is whether the stipulation of facts,
arrest warrant application, and writ of habeas corpus
constituted sufficient evidence to establish that the state
acted with due diligence in executing the warrant such
that the delay in the execution was not unreasonable.
Although we have not defined the term ‘‘due diligence’’
in this context, we previously have observed that ‘‘[d]ue
diligence does not require omniscience. Due diligence
means doing everything reasonable, not everything possible.’’ (Internal quotation marks omitted.) Skakel v.
State, 

, 

 (2010); see In
re Samantha C., 

, 

 (2004)
(in context of termination of parental rights, reasonable
efforts to reunify family means ‘‘doing everything reasonable, not everything possible’’ (internal quotation marks
omitted)). Due diligence does not require a party to do
everything possible to attain its objective, but, at the
same time, it requires something more than nonchalance. The state exercises due diligence, in short, if it
undertakes efforts to execute a warrant ‘‘by persevering
application . . . [made] in good earnest.’’ (Internal
quotation marks omitted.) Skakel v. State, supra, 507,
quoting Kubeck v. Foremost Foods Co., 

, 

 (1983).
   We conclude that the evidence adduced by the state
was insufficient to meet its burden of demonstrating
that it exercised due diligence in its efforts to execute
the warrant within the limitation period without unreasonable delay. The record reflects that the warrant was
issued on November 15, 2018, but was not executed
until three weeks later, on December 6, 2018, seven
days after the expiration of the five year statute of
limitations on November 29, 2018. The three week delay
requires explanation in the form of evidence to establish
that the delay was not unreasonable. Although the state
prepared a writ of habeas corpus requesting the transportation of the defendant on November 21, 2018, eight
days before the expiration of the limitation period, the
writ was not signed by the prosecutor and the clerk of
the court until six days later, on November 27, 2018.
Additionally, the defendant was not transported to court,
and the warrant was not executed, until December 6,
2018, nine days after the habeas writ was signed and
seven days after the expiration of the limitation period.
The stipulated facts do not reveal the reasons for these
delays. Nor do they explain how the efforts undertaken
to execute the warrant reflect due diligence by the state.
   At the hearing on the defendant’s motion to dismiss,
the lack of evidence regarding these critical issues was
highlighted by the fact that the trial court found it necessary to ask the prosecutor to explain the reason for the
delay in the execution of the warrant. The prosecutor
cited state holidays, weekends, a ‘‘light’’ work day, and
his own assessment of general logistical factors affecting the transportation of inmates, such as ‘‘certain limitations on the staff of [the] court with respect to how
many inmates will be housed downstairs on any particular day’’ and ‘‘the involvement of other agencies, notably, the judicial marshals . . . .’’ According to the
prosecutor, as ‘‘a matter of course and a matter of
courtesy,’’ the state does not ‘‘[make] a habit of
requesting transport a day later, [or] two days later,’’
but prefers to give ‘‘a little bit of lead time for the
relevant agencies . . . to plan the transport . . . .’’
The prosecutor was unable to explain why, in this particular case, the state did not try to arrange for the
transportation of the defendant before the expiration
of the statute of limitations on November 29, 2018, but
maintained that, in general, a delay of two to three
weeks is ‘‘consistent with [his] office’s practice . . . .’’
No evidence was presented to establish the facts underlying these assertions.
   As we previously discussed, representations of counsel are not evidence. For this reason, we reject the
suggestion in the concurring opinion that it may be
permissible for a party to rely on the representations
of counsel to satisfy their respective burdens under
Swebilius. In Swebilius, we made it very clear that the
representations of counsel, factual or otherwise, are
insufficient. If a statute of limitations defense has been
raised, the parties are under an obligation to adduce
evidence regarding (1) the defendant’s availability for
arrest during the limitation period, and, if applicable,
(2) the state’s due diligence in executing the warrant.
See State v. 

 (‘‘once a
defendant presents evidence of his availability for arrest
during the limitation period, the burden shifts to the
state to present evidence of its due diligence’’ (emphasis
added)). We again emphasized the evidentiary nature
of the requirement when we noted the near unanimous
case law supporting the burden shift: ‘‘We note that the
cases since Crawford that have considered the distribution of burdens in relation to § 54-193 (b) have been
nearly uniform in placing the burden on the state to
present evidence of due diligence.’’ (Emphasis added.)
Id., 804 n.8. Indeed, we noted that, ‘‘in cases involving
relatively brief delays, evidence of [the state’s] legitimate need to prioritize competing public safety responsibilities may well be sufficient to demonstrate
compliance with the dictates of Crawford.’’ (Emphasis
added.) Id., 814. We even pointed out that the state’s
evidentiary burden was not onerous and could be satisfied by compiling publicly available governmental statistics. See id., 814–15 n.17. In sum, we are unaware of
any case, in Connecticut or elsewhere, that permits a
party to satisfy its burden of proof relating to a statute of
limitations by relying on the representations of counsel.
   Accordingly, the explanations offered by the prosecutor in response to the trial court’s search for answers,
while no doubt made in good faith, are insufficient to
satisfy the state’s burden under Swebilius to ‘‘present
some credible and persuasive factual basis for . . .
[the state’s] fail[ure] to observe the statute of limitations.’’5 Id., 808. Although the prosecutor presented the
trial court with a stipulated chronology of events, he
failed to provide any admissible evidence to explain the
reasons for the delay in the execution of the warrant.6
As a result of that evidentiary deficiency, the state failed
to fulfill its burden of proving that the warrant was
executed with due diligence, and the trial court improperly denied the defendant’s motion to dismiss.
   The dissent would dilute the requirements of Swebilius—and, in the process, the statute of limitations—to
require nothing more than ‘‘business as usual’’ without
regard to the statutory deadline, and without regard to
when the defendant was actually served with process.
The dissent opines that the state satisfied its burden
of demonstrating that its efforts to execute the arrest
warrant were reasonable because, ‘‘before the statute
of limitations expired, the state had undertaken all of
the necessary preparatory steps for execution of the
warrant . . . .’’ This observation begs the critical question under Crawford and Swebilius. That question is
whether the ‘‘preparatory’’ steps taken by the state, if
any, were sufficient under the applicable legal standard when the warrant was executed on a nonelusive
defendant after the expiration of the limitation period.
Under those circumstances, our precedent is very clear
that the statute of limitations is satisfied only if the
warrant is ‘‘executed with due diligence’’ such that there
is not ‘‘unreasonable delay’’ between issuance and execution of the warrant. State v. 

.7 This burden, once again, obligates the state
to demonstrate the reasonableness of the delay between
issuance and execution of the warrant by presenting
evidence that it sought to meet its obligations by making
efforts demonstrating diligence, that is, something more
than nonchalance, throughout that time period. For the
reasons previously explained, we conclude that the
state failed to fulfill this burden.8
   Finally, we address the appropriate remedy. The state
argues that, pursuant to State v. 

, the proper remedy is to reverse the judgment
of the Appellate Court and to remand the case to the
trial court so that the state is ‘‘ ‘afforded the opportunity
to demonstrate that it made reasonable efforts to execute the warrant before the expiration of the statute of
limitations or to explain why its failure to do so was
reasonable under the circumstances.’ ’’ We disagree. In
Swebilius, the proper remedy was to remand the case
for further factual development because the trial court
applied an incorrect legal standard when it determined
that some delays in the execution of a warrant are
sufficiently short that they may be deemed reasonable
as a matter of law. The trial court’s application of the
wrong legal standard, combined with our articulation
of the burden shifting framework for the first time in
Swebilius, necessitated a remand so that the trial court
could ‘‘evaluate the facts in light of [the] correct legal
standard.’’ McDermott v. State, 

, 611, 

 (2015). In contrast, in the present case, the
trial court applied the correct legal standard, and ‘‘any
insufficiency in proof was [not] caused by [a] subsequent change in the law’’ but, rather, by the state’s
‘‘failure to muster evidence.’’ (Internal quotation marks
omitted.) 

 The state was well aware of its evidentiary
burden under our precedent but nonetheless elected to
offer no evidence other than an unadorned chronology
of events. Under these circumstances, we can perceive
no reason to provide the state with a second opportunity
to meet that burden.
  The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the trial court’s judgment and to remand the
case with direction to grant the defendant’s motion
to dismiss.
  In this opinion McDONALD and D’AURIA, Js., concurred.
   * This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices McDonald, D’Auria,
Mullins, Kahn, Ecker and Keller. Although Justice Mullins was not present
at oral argument, he has read the briefs and appendices, and listened to a
recording of the oral argument prior to participating in this decision.
   1
     General Statutes (Rev. to 2017) § 54-193 (b) provides: ‘‘No person may
be prosecuted for any offense, other than an offense set forth in subsection
(a) of this section, for which the punishment is or may be imprisonment in
excess of one year, except within five years next after the offense has
been committed.’’
   The statute was revised in 2019. See Public Acts 2019, No. 19-16, § 17. All
references to the statute in this opinion are to the 2017 revision, unless
otherwise noted.
   2
     We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court correctly conclude that the
trial court properly denied the defendant’s motion to dismiss on the basis
of its determination that the state had executed the arrest warrant without
unreasonable delay?’’ State v. Freeman, 

, 

 (2021).
   3
     Crawford uses the word ‘‘toll’’ rather than ‘‘satisfy,’’ but we have since
clarified that a distinction exists between ‘‘tolling’’ and ‘‘satisfying’’ the
statute of limitations and that the latter term is the more accurate one in
the present context. See State v. A. B., supra, 

 n.6 (noting that
we previously have ‘‘used the term ‘tolled,’ and other forms of the verb ‘toll,’
rather than ‘satisfied,’ to describe the state’s meeting its obligation under
§ 54-193 (b) to have ‘prosecuted’ a crime within the relevant limitation
period’’ and concluding that ‘‘ ‘satisfie[d]’ is the appropriate term to describe
the state’s meeting such obligation under [the statute]’’).
   4
     The dissent states that ‘‘[t]he court in Swebilius required the state to
provide an explanation only when it failed to make ‘some’ . . . effort
. . . .’’ We disagree. As we explained in Swebilius, ‘‘[o]nce the defendant
has presented evidence of his availability for arrest, it is reasonable and
proper that the burden should then shift to the state to explain why, notwithstanding the defendant’s availability during the statutory period, the delay
in his arrest was reasonable. Doing so allocates burdens efficiently by
requiring each party to bring forth evidence uniquely within its knowledge.’’
(Emphasis added.) State v. 

. To read Swebilius as the dissent suggests is inconsistent with the plain language and clear
import of our holding in that case.
   5
     As this court recently explained in A. B., ‘‘[w]e have long held that the
primary purpose of statutes of limitations is to encourag[e] law enforcement
officials promptly to investigate suspected criminal activity . . . so as to
ensure that a defendant receives notice, within a prescribed time, of the
acts with which he is charged . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. A. B., supra, 341 Conn. 68–69. ‘‘Such a limitation
is designed to protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage
of time and to minimize the danger of official punishment because of acts
in the far-distant past. Such a time limit may also have the salutary effect
of encouraging law enforcement officials promptly to investigate suspected
criminal activity.’’ (Internal quotation marks omitted.) Id., 56; see State v.

. Although the delay in the execution of the
warrant in the present case was relatively brief, we previously have explained
that even a brief delay beyond the expiration of the limitation period cannot
be deemed ‘‘reasonable as a matter of law, solely on the basis of the length
of the delay and irrespective of other facts.’’ State v. 

 n.5.
   6
     We reject the Appellate Court’s determination that ‘‘it [was] within the
purview of the trial court to use its knowledge of the inner workings of the
courts and the process by which incarcerated persons are transported to a
court in its determination of the reasonableness of the state’s efforts.’’ State
v. Freeman, supra, 

. There is no indication in the trial
court’s decision that it relied on its own knowledge of the inner workings
of the courts and the process by which incarcerated persons are transported,
rather than the prosecutor’s factual representations. Stated another way,
there is no indication that the state was excused from fulfilling its burden
of proof because the trial court took judicial notice of these facts. See, e.g.,
Jacobs v. Healey Ford-Subaru, Inc., 

, 730 n.24, 

(1995) (‘‘The doctrine of judicial notice excuses the party having the burden
of establishing a fact from introducing formal proof of the fact. Judicial
notice takes the place of proof.’’ (Internal quotation marks omitted.)).
Regardless, the inner workings of the courts and the process by which
incarcerated persons are transported are ‘‘matters susceptible of explanation
or contradiction,’’ and, therefore, the defendant was ‘‘entitled to receive
notice and have an opportunity to be heard’’ before the trial court took
judicial notice of these facts on its own initiative. Conn. Code Evid. § 2-2
(b); see Moore v. Moore, 

, 

 (1977) (recognizing
distinction ‘‘between matters susceptible of explanation or contradiction,
of which notice should not be taken without giving the affected party an
opportunity to be heard . . . and matters of established fact, the accuracy
of which cannot be questioned, such as court files, which may be judicially
noticed without affording a hearing’’ (citations omitted)). It is undisputed
that, to the extent the trial court took judicial notice of these facts, it
failed to provide the defendant with the requisite notice and opportunity to
be heard.
   7
     The dissent acknowledges that the inquiry focuses on the time period
between issuance and execution of the warrant, which, in the present case,
was from November 15 to December 6, 2018.
   8
     The dissent misinterprets our holding in two respects when it states
that we (1) determine that the state’s delay in executing the warrant was
unreasonable, and (2) effectively require that ‘‘the state . . . do everything
possible to serve the warrant within the limitation period.’’ Footnote 3 of
the dissenting opinion. We intend to say nothing of the kind. Rather, we
hold that the state failed to produce evidence that it undertook efforts to
meet its obligation to execute the warrant without unreasonable delay. In
undertaking those efforts, the state was not required to do everything possible to timely execute the warrant, but it was required by our law to make
efforts indicating that it was acting in earnest to meet the statutory deadline.
See State v. 

 (recognizing that ‘‘[t]he policies
underlying statutes of limitations are best served when . . . the state has
a strong incentive to ensure that a defendant is provided timely notice of
charges’’). In both regards, these are important distinctions. Finally, to the
extent that the dissent suggests that the delay in the present case was
somehow presumptively reasonable ‘‘[i]n light of the need for coordination
among various agencies to temporarily transfer custody of the defendant
from prison to the court,’’ we reject the notion that we can presume anything
of the kind without supporting evidence. It took the state from November
15 to December 6 to execute the warrant in this case. The record is devoid
of evidence about the period of time that is, in fact, reasonably necessary
to execute an arrest warrant on a defendant in custody under the circumstances as they existed. In the absence of such evidence, we are unwilling
to speculate on that issue. Moreover, we consistently have declined to ‘‘adopt
a per se approach as to what period of time to execute an arrest warrant is
reasonable.’’ State v. 

; see State v. 

 (rejecting state’s claim that ‘‘some delays in the execution of an
arrest warrant . . . are so brief as to require no justification on the part
of the state’’).