STATE OF CONNECTICUT v. ZACHARY JAY ELSON
AC 31511
Appellate Court of Connecticut
Argued May 26—officially released December 7, 2010
125 Conn. App. 328
DiPentima, C. J., and Bishop, Gruendel, Harper, Lavine, Beach, Robinson, Alvord and Dupont, Js.
(Two judges concurring separately in two opinions; two judges concurring and dissenting in one opinion)
The judgment is reversed and the case is remanded with direction to grant the defendant‘s motion to open and set aside the judgment and for further proceedings according to law.
In this opinion the other judges concurred.
Timothy J. Sugrue, assistant state‘s attorney, with whom, on the brief, were Stephen J. Sedensky III, state‘s attorney, and Warren C. Murray, supervisory assistant
Opinion
HARPER, J. The defendant, Zachary Jay Elson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of
The facts underlying the judgment of conviction, as they reasonably could have been found by the jury, were set forth in State v. Elson, supra, 116 Conn. App. 196. “On September 3, 2004, the female victim was a
“Several minutes after this encounter, the defendant returned to the classroom. The defendant stated that he had forgotten to look on the floor for his telephone. The victim remained seated while she worked but soon sensed the defendant approach her. The victim turned her attention to the defendant and observed him holding a knife near her neck. The victim grabbed the knife and tried to pull it away from the defendant. In the struggle that ensued, the victim fell to the floor and attempted to crawl away. The defendant pursued the victim. He positioned her so that she was lying on her back and then positioned himself on top of her. He straddled her such that each of his knees was on either side of her body and, as the victim continued to resist, punched the victim in her face with his fist. For a brief period of time, the defendant prevented the victim from fleeing. Ultimately, the victim freed herself from the defendant and obtained assistance from others on campus.
“Several days into their investigation, police detectives located and questioned the defendant. The defendant initially told the detectives that he had never been
“In a written statement that the defendant voluntarily provided to the detectives, he admitted that he had driven to the campus on September 3, 2004, emptied garbage from his automobile and began walking to ‘see what was going on around campus.’ The defendant stated that earlier that day he had consumed vodka and that after walking about the campus he returned to his automobile, where it is possible that he passed out for several minutes. The defendant stated that he then entered a classroom building to use a restroom and that at that time he was ‘very, very drunk.’
“The defendant recalled entering a classroom in which he observed a young female who was working on a sketch. He intended to initiate a conversation with her and recalled speaking with her. The defendant stated that when he began to walk away from her, the tip of a knife that he carried in the pocket of his pants poked his leg. According to the defendant, he removed the knife from his pocket, and, at that moment, the female turned to him, observed the knife and began yelling. The defendant stated that ‘everything went from a thick haze to a fearful blur’ and that he ‘must have reached out to try to stop her but accidentally hurt her.’ The defendant stated: ‘I remember an overpowering feeling of fear; things speeding by, and [I] punched her in her head—she had fallen, and in doing so, maybe knocked the knife out of my hand—I had to pick it up. I punched her again, and my hands were bloody, I never said a word. I think she whimpered when I had rushed to pick up the knife and ran.’ The defendant stated that he returned to his automobile and quickly drove away
“The victim sustained numerous physical injuries. Those injuries included lacerations on the fingers of her right hand; one of her fingers required surgery to repair a severed tendon. The victim also sustained lacerations on her chin, near her left eye and on her left arm. At the time of trial in 2006, the physical effects of those injuries were still evident in that the victim experienced a limited degree of flexibility in her surgically repaired finger and exhibited scars on her fingers, right hand, arm and face.” Id., 199-202.
With regard to the claim under reconsideration, the defendant argues that the court deprived him of his right to due process when it considered improper factors at the time of sentencing.3 Specifically, the defendant asserts that the court, in imposing sentence, improperly was affected by (1) the fact that he proceeded to trial rather than accept a plea bargain extended by the state and (2) a full exhibit, namely, a knife that the state offered in evidence during the trial.4
Thereafter, the court stated that it would “make some introductory remarks before [proceeding] to formal sentencing.” At that time, the court indicated that it had considered a letter submitted to the court from the defendant‘s mother and the statement of the defendant‘s father. The court then stated: “We‘ve all heard the defendant‘s apology. I don‘t know how sincere it is, but it is certainly unfortunate that it comes so late
The court discussed the victim‘s “credible” trial testimony, noting that “[t]here is no reason in my mind to doubt her testimony that the defendant came at her from behind with a knife to her throat.” The court stated: “A person intends the natural consequences of his acts. And the natural consequences of that act is to cause serious physical injury. [The] [d]efendant came about six inches away from killing this young woman or completely ruining her life; for that, I suppose, the victim and the defendant should both consider themselves fortunate.
“As the state correctly points out, the victim was totally blameless. This is not a case in which the victim knew the defendant, provoked the defendant, enticed the defendant or did anything to threaten the defendant. The victim bears no part of the blame for this incident. Despite that, the defendant threatened to rob [the victim] of the prime of her life. He threatened to rob the victim of being a wife, a mother, an adult daughter, a college educated artist or a person with some other promising career. Thus, it is fully appropriate that I takе away the defendant‘s liberty during the prime of his life.
“The defendant‘s defense was intoxication. There is no question that the defendant had been drinking to an excess on September 3, 2004. But the defendant is responsible for his own actions. He had been through a well-known alcohol rehabilitation program, undoubtedly paid for by his caring parents, and thrown away all the good that this program had done him.
“On the day in question, the defendant put a . . . knife with a six inch blade in his pants as he walked
“Even if the defendant had drunk to an excess, there must be some deep-seated anger within the defendant that explains this act of rage and violence, which the state aptly points out appears to be part of a pattern. This, in my view, makes the defendant a dangerous person, one from whom the victim, [Western Connecticut State University], and society should be protected.
“It also points out, incidentally, the dangers of substance abuse. There‘s no evidence, I don‘t think, that the defendant was using drugs on the day in question, but he does have a history of drug and alcohol abuse and . . . it has long been clear to me that drug and alcohol abuse is not a victimless crime. And today‘s sentencing provides graphic evidence of that.
“Furthermore, intoxication simply does not explain his statement to the police and his testimony in court that this was an accident. Did the accident supposedly occur because of intoxication? I never understood that. But I do know that this was no accident. I do not believe the defendant‘s testimony that he just happened to get poked in the leg with his knife, that he just happened to pull the knife out at that time and that [the victim] just happened to turn around at that time. I believe the defendant gave a false explanation to the police, that he testified falsely in court and that he essentially obstructed justice in doing so. And this is an aggravating factor.”
The court observed that the defendant had committed the crimes at issue while he was released on bail after having been charged with other felony crimes. The court stated: “A judge in Norwalk trusted the defendant and released him. The defendant abused that trust in the worst way. No judge has a crystal ball. We cannot tell for certain when we make bail decisions who will
“By committing these crimes while out on bail, the defendant not only committed a crime against the victim but also committed a crime against the court. The defendant broke his word to the court and showed disrespect for the law. The only mitigating factor I can find in this situation is that the defendant at least admitted the bail status violations. . . . [I]n due course, it will be entirely up to the judge in Norwalk to decide how to sentence in those cases. . . . [T]he current convictions are separate offenses from the ones in the Norwalk [court] . . . .” Thereafter, the court sentenced the defendant on each count, imposing a total effective sentence of twenty-five years imprisonment, execution suspended after twenty years, followed by five years of probation with special conditions. The sentencing proceeding concluded without any additional comments by defense counsel.
On appeal, the defendant claims that the court‘s remarks concerning the defendant‘s apology indicate that, in imposing sentence, the court considered and, thus, punished him for exercising his fundamental right to stand trial. Also, the defendant claims that the court‘s remarks concerning his possession of a knife with a six inch blade indicate that the court believed that a knife in evidence was the knife used in his commission of the crimes against the victim. The defendant argues that “[t]his comment had no basis in the record, was materially unreliable, and substantially prejudiced [him] at sentencing.” The defendant further argues that the court‘s consideration of the knife in evidence was improper because the knife in evidence “was much
In his main brief, the defendant analyzes both aspects of the claim as being constitutional in nature, urges us to conclude that the court violated his due process right to a fair trial and, by way of a remedy, requests that this court vacate his sentence and remand the case for resentencing. Our careful review of the record, however, reveals that the defendant did not raise either aspect of this claim before the trial court. The defendant, in his main brief, does not acknowledge or address the fact that he failed to raise either aspect of this claim before the trial court. Thus, in his main brief, the defendant does not request any extraordinary review of either aspect of this claim. In its brief, the state argues that the claim is unpreserved and that this court should not afford it review. The state argues, in the alternative, that the claim is without merit.
In his reply brief, the defendant, for the first time, requests review of both aspects of the claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).5 The defendant states that, although he did not cite Golding in his main brief, he nonetheless “fully address[ed] [his] entitlement to such relief” therein. Also, the defendant observes that the state, after arguing in its briеf that the claim was not reviewable, did address the claim on its merits. In the alternative, the defendant asserts in his reply brief that this court should exercise its inherent supervisory authority over the administration of justice to review both aspects of the claim.6
I
REVIEW UNDER GOLDING
It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the
Application of this principle is a disincentive to parties who would, for strategic purposes, fail to raise a claim at trial and, following an adverse verdict, pursue the claim of error on appeal. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 730, 941 A.2d 309 (2008) (“[w]e have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal” [internal quotation marks omitted]); State v. Taylor, 153 Conn. 72, 86-87, 214 A.2d 362 (1965) (“This court is not bound to consider claims of law not made at the trial. . . . This rule
Our Supreme Court reaffirmed this principle in State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), noting
Sixteen years later, in State v. Golding, supra, 213 Conn. 239, our Supreme Court “articulate[d] guidelines designed to facilitate a less burdensome, more uniform application of the Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.” In clarifying the manner in which the Evans standard should be applied, the court set forth the now familiar Golding test: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant‘s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant‘s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.
Subsequently, our Supreme Court has characterized the nature of review under Golding as follows: ”Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Nevertheless, because constitutional claims implicate
To this day, absent a defendant‘s resort to anothеr extraordinary level of review, the analytical framework of Golding governs the analysis of claims of constitutional error raised for the first time on appeal. The proper application of Golding, however, has been the subject of subsequent appellate decisions. Those decisions reaffirm that it is the defendant who bears the burden of demonstrating an entitlement to review under Golding. “[D]efendants who seek consideration of
Furthermore, our Supreme Court and this court have stated that, as a prerequisite to Golding review, a party must affirmatively request review pursuant to Golding in its main brief.7 See, e.g., In re Jan Carlos D., 297 Conn. 16, 20 n.10, 997 A.2d 471 (2010) (“[a]s this court has recognized repeatedly, a party may seek to prevail on unpreserved claims under the plain error doctrine; see
It is inappropriate for a party to request review under Golding for the first time in its reply brief. See, e.g., Lebron v. Commissioner of Correction, supra, 274 Conn. 532 (declining to review claim under Golding when request appears for first time in reply brief); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (“[t]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis” [internal quotation marks omitted]); State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249 (declining to review claim under Golding because request for such review made for first time in reply brief), cert. denied, 291 Conn. 912, 969 A.2d 176 (2009); State v. Spiegelmann, 81 Conn. App. 441, 447, 840 A.2d 69 (same), cert. denied, 268 Conn. 921, 846 A.2d 882 (2004); Daniels v. Alander, 75 Conn. App. 864, 882-83, 818 A.2d 106 (2003) (same), aff‘d, 268 Conn. 320, 844 A.2d 182 (2004).
With regard to the present claim, the record reflects that the defendant did not bring the claim to the attention of the trial court during the sentencing proceeding or at any time thereafter. Rather, the defendant raised this claim for the first time on appeal. The defendant now argues that it was unnecessary for him to seek any type of extraordinary review of the claim because it would have been difficult for him to have raised an objection at trial and there was no remedy reasonably available to him at trial. Also, the defendant argues that, because our Supreme Court has ruled that other types of unpreserved constitutional claims are reviewable on appeal absent a party‘s resort to an extraordinary level of review, the present claim should be treated similarly.
As a preliminary matter, we are not persuаded that the defendant was in any manner hampered in his ability to raise before the trial court a proper objection to the court‘s statements.8 Such objection would have alerted
that defense counsel needed to have interrupted the court during its sentencing remarks to preserve the present claim for appellate review. Insofar as the comment challenged by the defendant was uttered during the court‘s lengthy remarks at the time of sentencing, the defendant‘s counsel may have raised his objection at an opportune time after the court had concluded its remarks. The record reflects that, when the court finished delivering its remarks, it invited counsel to address any relevant matters, stating: “Anything further from counsel?” To this inquiry, defense counsel stated, “No, Your Honor.” The record does not reveal anything unique to these circumstances that rendered the bringing of an objection an extraordinarily difficult undertaking. Third, we are perplexed by the reasoning that it would have been “of no practical value” to raise an objection because the court already had formulated an improper ruling. The court had a basic judicial duty to either sustain or overrule any objections with which it was presented and, in the interest of judicial economy, to take any corrective action warranted by law prior to the bringing of an appeal. This is why our case law and rules of practice encourage parties to raise claims of error before the trial court. Essentially, the concurring and dissenting opinion appears to suggest that raising a claim of error related to sentencing is a fruitless act because, once made, judges simply will not correct such errors. Objections to rulings, however, must follow the announcement of such rulings. Experience, as well as confidence in the operation of our judicial system and the judges who servе it, counsels us to expect that trial judges will take corrective action with regard to rulings that they deem to be improper.
Also, the defendant relies upon decisions of our Supreme Court that have expressly concluded that it is unnecessary for a criminal defendant to rely upon Golding to obtain review of certain types of unpreserved claims of constitutional magnitude and that it is unnecessary for a reviewing court to analyze such claims under Golding. The subject matter of these types of claims involves the sufficiency of the evidence and prosecutorial impropriety. In State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995), our Supreme Court concluded that it was appropriate to review the merits of a defendant‘s sufficiency of the evidence claim despite his failure to request review of that unpreserved claim under Golding. The court stated: “It is ‘an essential of the due process guaranteed by the [f]ourteenth [a]mendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.’ Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” State v. Roy, supra, 212-13. Likewise, in State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993), our Supreme Court held: ”Jackson v. Virginia, [supra, 316], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.”
As is apparent from our earlier discussion, Golding is a judicially created doctrine of reviewability. Our Supreme Court made Golding applicable to a broad class of claims, namely, “alleged constitutional violations that are raised for the first time on appeal.” State v. Golding, supra, 213 Conn. 239. Only in subsequent decisions has that court expressly announced exceptions to the rule by “disconnect[ing] the Golding rubric” from these distinct classes of unpreserved constitutional claims. State v. Stevenson, supra, 269 Conn. 574-75 n.11. In general, for this court to create additional exceptions to Golding would be inconsistent with its obligation strictly to adhere to the precedent of our Supreme Court. See Stuart v. Stuart, 297 Conn. 26,
Having concluded that the claim at issue falls within the class of claims to which Golding applies, we next address the defendant‘s contention that he affirmatively had requested such level of review in his main brief. It is not disputed that the defendant raised and addressed the constitutional claim at issue in his main brief; the issue is whether he affirmatively requested review of the claim pursuant to Golding. Our Supreme Court has not elaborated with regard to what a defendant must do, in his or her main brief, affirmatively to request such review.10 Nonetheless, guided by ample precedent concerning the nature and scope of Golding review as well as considerations of fundamental fairness to the court and to the parties, we may interpret that requirement.
In interpreting the affirmative request requirement associatеd with Golding, we readily eschew the notion that it necessarily includes the use of talismanic words or phrases, such as a citation to the Golding opinion or a recitation of any specific language from that opinion in an analysis of the reviewability of the claim. In a variety of contexts, “Connecticut courts have refused to attach talismanic significance to the presence or absence of particular words or phrases.” State v. Janulawicz, 95 Conn. App. 569, 576 n.6, 897 A.2d 689 (2006). Although a party‘s explicit reference to the Golding decision, or specific portions thereof, undoubtedly adds clarity to a reviewability analysis, it is not the only means by
Thus, we take this opportunity to define an affirmative request for review pursuant to Golding as nothing less than an explicit assertion and analysis in a party‘s
Before concluding our discussion of this issue, we must address the defendant‘s reliance, in his motion for reargument and reconsideration en banc, upon the majority opinion in State v. Wright, 114 Conn. App. 448, 455-64, 969 A.2d 827 (2009).13 The defendant in Wright raised a claim of constitutional magnitude for the first time on appeal. Id., 457. In his main brief, the defendant
We disagree with Wright‘s analysis of the affirmative request requirement associated with Golding. The majority in Wright recognized that an affirmative request is a prerequisite to review pursuant to Golding. Id., 460. After concluding, as do we, that such request need not encompass a citation to the Golding decision, however, the court in Wright effectively concluded that a defendant need not do anything to alert the reviewing court that review of a potentially unpreserved claim is requested and why such review is appropriate. Rather than requiring a defendant, at a minimum, to analyze affirmatively the issue of reviewability as a means of
Furthermore, in rejecting the approach set forth in Wright, we recognize that our Supreme Court, in Golding, expressly sought to facilitate a uniform method for the review of unpreserved claims of constitutional magnitude. State v. Golding, supra, 213 Conn. 239. The affirmative request requirement is a means of attaining uniformity in the manner that such claims are raised by litigants and, more importantly, addressed by reviewing courts and panels therеof. Under our interpretation of the affirmative request requirement, an appellant is entitled to consideration under Golding after he has analyzed his entitlement to that level of review in his main brief, thus putting the court and the opposing party on notice that such level of review has been requested. The approach in Wright, however, permits the reviewing court to determine whether consideration under Golding is warranted despite the fact that an
As has often been observed, “this court‘s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc.” Consiglio v. Transamerica Ins. Group, 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999); see also State v. DiFano, 109 Conn. App. 679, 687, 952 A.2d 848, cert. denied, 289 Conn. 937, 958 A.2d 1246 (2008); Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). Binding precedent from our Supreme Court, as well as precedent from this court, limits appellate review to that level of review requested on appeal and, specifically, requires that appellants affirmatively request review pursuant to Golding. In light of our interpretation of this precedent, we take this opportunity to overrule Wright insofar as it addresses the affirmative request requirement associated with Golding.
II
REVIEW UNDER THIS COURT‘S SUPERVISORY AUTHORITY
The defendant, for the first time in his reply brief, asserts that it is “appropriate” for this court to exercise its inherent supervisory authority over the administration of justice to review his sentencing claim. The defendant‘s analysis in support of this request consists of a footnote in his reply brief in which he sets forth boilerplate language related to such authority. The reply
First, this request for review first appears in the defendant‘s reply brief. Although the defendant raised his sentencing claim in his main brief, he did not request in that brief that this court exercise its supervisory authority or analyze his claim accordingly by demonstrating that such level of review was warranted. By waiting until the time that he filed his reply brief to make such a request, he deprived the state of the opportunity to respond to the request in its brief. “Generally, this court does not consider claims raised for the first time in a reply brief.” Perry v. State, 94 Conn. App. 733, 740 n.5, 894 A.2d 367, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006); id. (applying principle to request for supervisory authority in defendant‘s reply brief).
Second, the defendant‘s requеst for this court to exercise its supervisory authority consists of little more than an assertion that such level of review is appropriate. The defendant quoted from one case that set forth boilerplate language concerning the exercise of supervisory authority generally. He did not, however, provide any analysis related to this authority or, by reference to the specific circumstances surrounding this claim, attempt to demonstrate why this court should exercise such authority with regard to the present claim. A request for review, like a claim raised on appeal, must be accompanied by an adequate analysis. “[W]e repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).
Our careful review of the parties’ briefs and the record of the trial leads us to conclude that neither aspect of the present unpreserved sentencing claim warrants the exercise of our supervisory powers. The defendant had an opportunity to raise the present claim before the trial court and, after failing to do so, to seek review of his unpreserved claim under the Golding doctrine. Under the circumstances apparent in the record, discussed more fully below, we do not deem it appropriate to exercise our supervisory powers to grant the defendant relief with regard to this unpreserved claim.
In the present case, the defendant couched his claim in broad terms, asking “[w]hether the trial court considered improper factors when sentencing [him], thereby depriving him of due process of law . . . .” At issue, of course, is whether, at the time of sentencing, the court improperly had considered his decision to proceed to trial. In State v. Kelly, 256 Conn. 23, 79-84, 770 A.2d 908 (2001), our Supreme Court addressed on its merits an identical type of claim. In Kelly, the defendant claimed “that the trial court violated his federal and state constitutional rights by improperly considering, at the sentencing phase of the proceedings, the defendant‘s decision to proceed to trial.” Id., 79-80. A closer examination of Kelly is warranted, as it strongly influences our decision not to exercise our supervisory authority with regard to this claim.
At the time of sentencing, the trial court in Kelly discussed the several sentencing factors it had considered. Id., 80 n.27. Within this discussion, the court stated: “The general factors which I have considered in this matter is whether or not there was a plea or a
Turning to the facts of the claim before it, our Supreme Court in Kelly rejected the constitutional claim raised after concluding that “the totality of the circumstances surrounding the defendant‘s sentencing gives no indication that the trial court improperly augmented the defendant‘s sentence based on his decision to stand trial.” Id. The court gave consideration to the fact that the trial court at sentencing explicitly referred to several other sentencing factors. Id. Thereafter, the court noted: “No fair reading of the record would permit the conclusion that the trial court‘s comment should be understood to mean that it was lengthening the defendant‘s sentence based on his choice to stand trial. Rather, we interpret the trial court‘s remark as a reminder to the defendant of the oft acknowledged truth that many factors favor relative leniency for those who acknowledge their guilt . . . and thus help conserve scarce judicial and prosecutorial resources for those cases that merit the scrutiny afforded by a trial. . . . There is a world of difference between that reminder and a clear showing that the defendant received a lengthier sentence because he chose to exercise his right to a jury trial.” (Citation omitted; internal quotation marks omitted.) Id., 84.
added.) Id., 352. Ultimately, this court concluded that no such impermissible augmentation had occurred and, on that ground, rejected the defendant‘s constitutional claim. Id., 353.
Thus, following our careful review of the totality of the circumstances as they are depicted in the entire record before us, we do not conclude that the defendant has made “a clear showing“; State v. Kelly, supra, 256 Conn. 84; that the court augmented his sentence based on his decision to proceed to trial. In Kelly, the trial court explicitly stated that it had considered whether the defendant had proceeded to a complete trial rather than entering a plea. Id., 80 n.27. Moreover, the court declared that such consideration was one of several “legal factors to consider” at sentencing; the court explicitly viewed that factor as relevant to the sentence imposed. (Internal quotation marks omitted.) Id. Our Supreme Court, however, concluded that the totality of the circumstances did not reveal that the court had augmented the defendant‘s sentence based on his decision to proceed to trial. Id., 83. The circumstances in the present case are far more ambiguous. The court did not threaten the defendant or state that the sentence imposed was based upon his decision to proceed to trial. Cf. id., 82. Rather, the court, in evaluating the defendant‘s apology, referred to the fact that the defendant had “put the victim through the trial.” Unlike the trial court in Kelly, the court in the present case did not state that the defendant‘s decision to proceed to trial, in and of itself, was a sentencing factor but discussed several other factors that were relevant to the sentence it imposed. Accordingly, the defendant has not met his burden of proof by providing this court with a record that justifies the exercise of our supervisory powers.15
It should be apparent that the analysis undertaken in the concurring and dissenting opinion differs from that undertaken in our opinion. In accordance with the analysis set forth in Kelly, our analysis is tailored to determining whether the court improperly augmented the defendant‘s sentence. In his concurring opinion, Judge Robinson follows Kelly‘s analysis, stating that “in order to review the defendant‘s claim, this court must consider the facts in the record to discern whether, based on the totality of the circumstances, the court improperly enhanced the defendant‘s sentence.” Ultimately, Judge Robinson concludes that this court should not exercise its supervisory authority “when the record before us only indicates that there is but the possibility that the trial court penalized the defendant for taking advantage of his constitutional right to trial by jury.” Furthermore, Judge Dupont followed Kelly‘s analysis when she reviewed the sentencing claim on its merits, concluding that “the totality of the circumstances surrounding the defendant‘s sentencing gives no indication that the court improperly augmented the defendant‘s sentence on the basis of the defendant‘s decision to stand trial.” State v. Elson, supra, 116 Conn. App. 245 (Dupont, J., concurring in part).
Judge Bishop does not conclude that the record adequately demonstrates that the court actually augmented the defendant‘s sentence improperly but bases his conclusion on other considerations, as set forth in his separate opinion. In an attempt to distinguish Kelly from the present case and justify a departure from Kelly‘s analysis, Judge Bishop‘s concurring and dissenting opinion states: “In Kelly, the focus was on whether the court lengthened a defendant‘s sentence as punishment for exercising the right to trial. Other cases, however, focus on whether the court impermissibly took the defendant‘s exercise into consideration at sentencing. Because the issue was framed in Kelly as a claim that the court actually elongated the defendant‘s sentence as a consequence of his having exercised his right to trial, the Supreme Court on review responded in like manner.” See footnote 8 of Judge Bishop‘s concurring and dissenting opinion. Respectfully, we conclude that that is an incorrect characterization of the issue framed by the defendant in Kelly. In his statement of the issues, the defendant in Kelly framed the issue as follows: “Whether the trial court erred in considering the fact that it was imposing a sentence following the defendant‘s exercise of his constitutional right to a trial rather than as a result of a plea bargain?” State v. Kelly, Conn. Supreme Court Records & Briefs, December Term, 1999, Pt. 6A, Defendant‘s Brief p. vi. In his brief, the defendant in Kelly did not base his claim solely upon a theory of sentence augmentation; he asserted unequivocally that the court‘s explicit consideration of his decision to proceed to trial was an infringement of his constitutional rights. Stated otherwise, he argued that the court‘s mere consideration of his decision constituted impermissible punishment. Id., pp. 64-67. Furthermore, it is misleading to suggest that, because our Supreme Court in Kelly required the defendant to prove that his sentence had been augmented impermissibly, the court did not recognize and resolve an issue squarely addressing whether the court impermissibly had considered the defendant‘s decision to proceed
The judgment is affirmed.
In this opinion DiPENTIMA, C. J., and GRUENDEL, BEACH and ALVORD, Js., сoncurred.
to trial. As set forth earlier in this opinion, the Supreme Court in Kelly framed the issue as whether “the trial court violated [the defendant‘s] federal and state constitutional rights by improperly considering, at the sentencing phase of the proceedings, the defendant‘s decision to proceed to trial.” State v. Kelly, supra, 256 Conn. 79-80. This statement of the issue precedes the court‘s analysis in Kelly and, in our view, plainly reflects that the court understood the issue to encompass whether the trial court improperly had considered the defendant‘s decision. This framing of the issue was entirely consistent with the issue presented to the Supreme Court by the defendant in Kelly. We reiterate that, in its analysis of this issue, our Supreme Court rejected this rationale and required the defendant to demonstrate that impermissible augmentation of the sentence had occurred. Id., 83-84.
Because the relevant claim in Kelly is remarkably similar to that presented here, we adhere to Kelly‘s analysis of the claim. The exercise of supervisory authority does not afford this court an opportunity to reexamine or reevaluate controlling precedent from our state‘s highest court. See Stuart v. Stuart,
ROBINSON, J., concurring. I concur with the majority that the trial court‘s sentencing of the defendant, Zachary Jay Elson, should be affirmed but write separately to emphasize the point that a trial court should never take into consideration whether a person exercised his or her constitutional right to trial by jury and also to dispel any suggestion that this court‘s decision represents tacit approval for such a practice. I share the same concern expressed by Judge Bishop in his concurring and dissenting opinion, namely, that such a practice by a court has the potential to chill a defendant‘s decision to exercise his or her fundamental right to trial by jury. Under the facts of the present case, however, I would not invoke our supervisory authority to reach the defendant‘s sentencing claim. Accordingly, I concur in the judgment of the majority.
At the outset, I believe it necessary to address why a trial court should not consider among its factors at sentencing whether a defendant chose to exercise his or her constitutional right to trial by jury. In our judicial system, the court plays a crucial role in promoting “public confidence in the integrity . . . of the judiciary.” (Internal quotation marks omitted.) Swenson v. Dittner, 183 Conn. 289, 297, 439 A.2d 334 (1981). This role requires the court to assume the duties both of “impartial and detached” decision maker; State v. Floyd, 10 Conn. App. 361, 369, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987); and “minister of justice.” Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982).
To fulfill its duty as impartial and detached decision maker, the court must avoid the appearance of bias or
When a court considers a defendant‘s exercise of a constitutional right in a nonneutral manner, such as a factor used at sentencing, it crosses that fine line that separates proper and improper administration of justice; see State v. Floyd, supra, 10 Conn. App. 369; and gives the impression that the court has strayed from its duty to safeguard the constitutional rights of the criminal defendant. By taking such factors into consideration during sentencing, a court can send a powerful message that a criminal defendant has the ability to exercise a constitutional right but the consequences may be less than favorable. In effect, by taking away the defendant‘s ability to decide freely whether to exercise a constitutional right, the court fails to safeguard the right and, thus, fails to fulfill one of its duties. As
With this being said, I agree with Judge Bishop that it “will have a chilling effect on a defendant‘s exercise of [his right to trial by jury]” if the trial court can consider the defendant‘s choice as “a significant sentencing factor. . . .” Judge Bishop and I reach the proverbial fork in the road, however, on the issue of whether we should review the defendant‘s claim in the present case. The main issue of contention centers on whether this court should exercise its supervisory authority to protect the integrity of the judiciary.
The defendant asks this court to exercise its supervisory power to review his sentencing claim because, as he contends, the trial court improperly considered “the fact that he proceeded to trial rather than accept a plea bargain extended by the state” as a significant factor during sentencing. In support of his contention, the defendant relies solely on the following statement made by the court during sentencing: “We‘ve all heard the defendant‘s apology. I don‘t know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn‘t have put the victim through the trial. To a large extent, it seems to me that the defendant‘s apology represents thinking of himself rather than the victim.”
Determining whether this court should exercise its supervisory power to review the defendant‘s claim requires us to take a closer look at the doctrine of supervisory authority. “In certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)] or [the] plain error [doctrine].” (Emphasis
“Ordinarily, our supervisory powers are invoked to enunciate a rule that is not constitutionally required but that we think is preferable as a matter of policy. . . . As our Supreme Court explained, [s]upervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . At the same time, [a]lthough [w]e previously have exercised our supervisory powers to direct trial courts to adopt judicial procedures . . . we also have exercised our authority to address the result in individual cases . . . because [certain] conduct, although not rising to the level of constitutional magnitude, is unduly offensive to the maintenance of a sound judicial process.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 533, 955 A.2d 667 (2008). Thus, the supervisory power has been invoked in at least two circumstances:1 (1) to announce a new rule of procedure that the court believes is necessary to protect the integrity of the judiciary; see, e.g., State v. Gore, 288 Conn. 770, 787-88, 955 A.2d 1 (2008) (supervisory power invoked to adopt rule that “when a dеfendant . . . indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily“); State v. Ledbetter, 275 Conn. 534, 575-80, 881 A.2d 290 (2005) (supervisory power invoked to adopt rule requiring jury instruction where identification procedure fails to provide adequate warning to witness, unless no significant risk of misidentification), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006); and (2) to reverse a judgment of conviction in the interest of justice. See, e.g., State v. Ubaldi, 190 Conn. 559, 572, 575, 462 A.2d 1001 (1983) (supervisory power invoked to reverse judgment of conviction on basis of prosecutorial impropriety), cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).
In the present case, the defendant asks this court to reverse the judgment and remand his case for resentencing in the interest of justice. Although the defendant did not preserve his claim at the trial court level, he nevertheless argues that this court may invoke its supervisory authority sua sponte to consider his claim. The
Although Ramos found that an appellate court may exercise its supervisory power sua sponte to reverse a judgment of conviction in the interest of justice, it does not change the requirement that, in order to consider an alleged error, whether preserved or unpreserved, the court must have an adequate record before it upon which to base its decision. See State v. Chambers, 296 Conn. 397, 414, 994 A.2d 1248 (2010). As this court has long recognized: “Speculation and conjecture have no place in appellate review. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant‘s claim] would be entirely speculative.” (Internal quotation marks omitted.) Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005); see also State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). Furthermore, “it is
Our Supreme Court‘s recent decision in State v. Chambers, supra, 296 Conn. 397, is instructive as to whether this court should invoke its supervisory powers in the present case. In Chambers, the defendant was charged with one count of assault in the first degree, one count of robbery in the first degree and one count of conspiracy to commit robbery in the first degree. Id., 400-401. Six dаys after the start of a jury trial, defense counsel requested that the defendant be permitted to testify in the narrative, if the defendant elected to testify, because of ethical concerns. Id., 401. The following day, the trial court held an in-chambers meeting regarding the request at which only defense counsel and the prosecutor were present. Id. Afterward, the trial court held a hearing, at which the defendant was present, and granted defense counsel‘s motion to allow the defendant to testify in the narrative. Id., 401-402. The defendant testified in the narrative and subsequently was convicted of all three charges. Id., 406-407, 409-10.
On appeal, the defendant claimed that he was denied due process of law when he was excluded from the in-chambers meeting, arguing that the meeting was a critical stage of the proceeding at which he had a constitutional right to be present. Id., 410-11. Because the defendant had not raised the issue at the trial court level, he sought review under both Golding and the court‘s supervisory authority. Id.
Similarly, in the present case, pursuant to State v. Kelly, 256 Conn. 23, 82, 770 A.2d 908 (2001), review of claims that a trial court augmented the defendant‘s sentence “as a punishment for exercising his or her constitutional right to a jury trial [is] . . . based on the totality of the circumstances. . . . [T]he burden of proof in such cases rests with the defendant.” Therefore, in order to review the defendant‘s claim, this court must consider the facts in the record to discern whether, based on the totality of the circumstances, the court improperly enhanced the defendant‘s sentence.
In light of the uncertainty, it was incumbent on the defendant to seek an articulation from the court that set forth the factors it considered when it imposed the sentence. In the absence of such articulation, any attempt on our part to discern what weight, if any, the court accorded to the defendant‘s exercise of his fundamental right would require us to speculate, a practice in which this court will not engage.
For the foregoing reasons, I respectfully concur in the majority opinion.
This appeal was first argued in the 2008-2009 court year before a three judge panel of this court and was the subject of а published opinion, State v. Elson, 116 Conn. App. 196, 975 A.2d 678 (2009). This court granted en banc reargument and reconsideration of the original Elson decision. The same briefs of the parties used in the original case were used in this case on reconsideration. On appeal, the defendant, Zachary Jay Elson, claimed in his main brief that the court considered improper factors at the time of his sentencing, thereby depriving him of his right to due process of law afforded by the federal constitution. He provided an excerpt of the transcript of the sentencing with citation to the specific statements that he claimed demonstrated that the trial court considered his decision to stand trial
The author of the original Elson decision declined to review the unpreserved claim because the defendant did not cite Golding, or assert that his claim was not preserved for appellate review or otherwise “affirmatively request” review pursuant to Golding in his main brief. State v. Elson, supra, 116 Conn. App. 239-40. In a concurring opinion, I determined that the unpreserved claim was reviewable under Golding but that the claim failed to satisfy the third prong of Golding because the defendant failed to demonstrate that the alleged constitutional violation clearly existed and clearly deprived him of a fair trial. Id., 245 (Dupont, J., concurring in part).2
Golding followed the case of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). In Evans, our Supreme Court established review for unpreserved claims that constituted “‘exceptional circumstances’ . . . .” Id., 70. The court recognized “two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered
These exceptional circumstances were intended to strike the proper balance between protecting the constitutional rights of defendants and the court‘s interest in reviewing only properly preserved claims, thus avoiding trial by ambuscade of the trial court. Claimed constitutional violations normally should be brought to the attention of the trial court, where they can be addressed and remedied. See State v. Canales, 281 Conn. 572, 581, 916 A.2d 767 (2007). Over time, the second “exceptional circumstance” came to be relied on in so many cases that it ceased to be exceptional. The rule in Evans made it difficult for the court to address the reviewability issue without actually reviewing the claim on its merits, thus resulting in a variety of approaches.3 This court, for example, attempted to disentangle the issue of reviewability from the merits of the claim by adopting a four part approach in State v. Thurman, 10 Conn. App. 302, 305-306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987),4 an approach that was cited
In 1989, our Supreme Court acknowledged that the methodologies used under the Evans standard were inconsistent and, in Golding, “articulate[d] guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.” State v. Golding, supra, 213 Conn. 239.6 The court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are
In the present matter, the majority concludes that our Supreme Court later added a gloss to Golding that an appellant‘s entitlement to a Golding review must be requested affirmatively in the main brief. This gloss is traced to State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997), in which the court admonished: “[D]efendants who seek consideration of unpreserved constitutional claims [on appeal] . . . bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding.” In Waz, the court addressed the defendant‘s unpreserved constitutional claim, despite the defendant‘s failure to make an express reference to the guidelines specified in Golding. In State v. Ramos, supra, 261 Conn. 170-71, the court concluded that the defendant had not preserved his objection to a particular jury instruction. The court declined to review the claim, relying in part on State v. Waz, supra, 371 n.11, stating: “[A] defendant may prevail on an unpreserved claim under Golding or the plain error doctrine. . . . A party is obligated, however, affirmatively to request review under these doctrines.” (Citations omitted.) State v. Ramos, supra, 171. This was the first time our Supreme Court expressly
Our Supreme Court has come close, however, to equating an affirmative request with compliance with the first two prongs of Golding. In State v. Bowman, 289 Conn. 809, 815, 960 A.2d 1027 (2008), the court stated: “[I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra,
Regardless of the meaning of the phrase “affirmative request,” Connecticut case law has remained essentially unchanged. The rationale underlying both Evans and Golding remains that fundamental constitutional rights are of such importance that appellate courts should review claims of alleged constitutional violations even when a defendant fails to take an exception to the alleged violation at the trial court level. Much like requests for review pursuant to Evans, requests for Golding review of unpreserved claims of constitutional magnitude have proliferated like kudzu8 in our appellate
This is the approach employed in State v. Wright, supra, 114 Conn. App. 448. In that case, the defendant claimed a constitutional violation in his main brief and provided an adequate record for review. Id., 456. The state in its brief argued that the claim was unreviewable because it was not preserved at trial and the defendant did not request review pursuant to Golding. Id. The state in its brief argued in the alternative that if the court found the claim to be reviewable, the claim failed on its merits. Id., 456-57. Wright is indistinguishable from Elson in these respects. As noted in Wright: “This court‘s ability to review a claim, and the defendant‘s ability to prevail on his claim, are two entirely different concepts. . . . As the Supreme Court stated in Golding, the defendant bears the responsibility for providing a record that is adequate for review of his claim and demonstrating that his claim is indeed a violation of a fundamental constitutional right, thereby satisfying the first and second prongs. . . . Should the defendant do so, [an appellate court] will [then] review [the claim] and arrive at a conclusion as to whether . . . the third and fourth prongs [are satisfied].” (Citations omitted; emphasis in original; internal quotation marks omitted.)
http://na.fs.fed.us/fhp/invasive_plants/weeds/kudzu.pdf (last visited November 16, 2010).
Nothing in the approach in Wright is contrary to established Supreme Court precedent. The approach is wholly consistent with State v. Waz, supra, 240 Conn. 371 n.11, as it properly places on appellants who seek consideration of their unpreserved claims of constitutional magnitude the burden “of establishing their entitlement to such review under the guidelines enumerated in Golding.” In addition, this approach promotes judicial economy, as it provides a lessened need for future habeas corpus petitions and other cases, both civil and criminal, that allege ineffective assistance of appellate counsel for failure to obtain appellate review of an unpreserved constitutional claim because counsel failed to “affirmatively request” Golding review, when counsel did provide an adequate record for review and adequately briefed an unpreserved claim of constitutional magnitude.
Our Supreme Court has not yet expressly defined an “affirmative request” as anything other than satisfying the first two prongs of Golding.9 For these reasons, I do not believe that this court should overrule in part State v. Wright, supra, 114 Conn. App. 448, or should decline to review an unpreserved constitutional claim because of a lack of an “affirmative request” for review.
BISHOP, J., with whom LAVINE, J., joins, concurring in part and dissenting in part. Although I concur with the majority‘s affirmation of this court‘s earlier opinion affirming the judgment of conviction; see State v. Elson, 116 Conn. App. 196, 975 A.2d 678 (2009); I write separately because I believe the sentencing claim of the defendant, Zachary Jay Elson, raises a troubling issue warranting resentencing. The state claims, and the majority agrees, that we should not review the defendant‘s sentencing claim because the issue was unpreserved1 and he did not seek review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in his main brief. I agree with the majority that this court is bound by our Supreme Court‘s holdings regarding a party‘s obligation to affirmatively request extraordinary review and to do so in its main brief. Therefore, I concur with the majority opinion insofar as it overrules the analysis in State v. Wright, 114 Conn. App. 448, 455-64, 969 A.2d 827 (2009).2 Unlike the majority, however, I
“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of thоse minimal historic safeguards for securing trial by reason which are summarized as due process of law . . . . Rather, the standards are flexible and are to be determined in the interests of justice. . . . [O]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [O]ur supervisory powers are invoked only in the
rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000); see also Practice Book §§ 60-1 and 60-2. Additionally, “[i]n certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the Golding or plain error doctrines.” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 618 n.5, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).
In State v. Revelo, 256 Conn. 494, 504, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001), our Supreme Court held that supervisory review is sometimes necessary if disposing of a touchstone due process claim on procedural grounds would be construed as tacit approval of the alleged constitutional violation. In Revelo, the trial court announced a plea offer of eight years, then withdrew that offer when the defendant asserted his right to a judicial determination of his then pending motion to suppress. The court informed the defendant that if the motion was denied and he decided to plead guilty, he would be sentenced to nine years, which is what occurred. Id., 497-99. On appeal, the defendant claimed that his constitutional right to due process was violated because the court increased his sentence on the basis of his decision to seek adjudication of his motion to suppress. After this court declined to review the claim, our Supreme Court reversed, exercising its supervisory power for three reasons. First, it held that the significance of the due process claim transcended the particular case because it concerned the proper role of trial judges in plea bargaining. Id., 503. Second, the undisputed facts of the case bore out the defendant‘s claim of a constitutional
The criteria enunciated in Revelo apply in the present case. Here, the defendant contends that the trial court impermissibly equated the exercise of his constitutional right to trial with the absеnce of remorse. Given the precedential impact of appellate decision making, our tacit acceptance of this practice likely could have the effect of fettering the right of a criminal defendant to require the state to prove guilt beyond a reasonable doubt lest that exercise later be viewed by a sentencing court as evidence that the defendant lacked remorse. Thus, I believe this claim transcends the circumstances of this case, “present[ing] one of the rare exceptions to the general rule of unreviewability.” Id., 503. Accordingly, I believe that this is an appropriate case to invoke our supervisory power to address the defendant‘s claim.
Turning to the merits of the defendant‘s claim, the record in the case at hand reveals that, at sentencing, the court stated: “We‘ve all heard the defendant‘s apology. I don‘t know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn‘t have put the victim through the trial. To a large extent, it seems to me that the defendant‘s apology represents thinking of himself rather than the victim.”4
The defendant claims that these comments reveal that the court improperly considered at sentencing his
I begin with the elementary principle that a defendant‘s right to trial is among the most cherished constitutional rights. As noted by the United States Supreme
In the majority of jurisdictions, a criminal defendant may not receive a harsher sentence solely or even partially because he exercised his right to trial. “The ratio-
In place of a “per se” test, our Supreme Court, in Kelly, adopted a more flexible “totality of the circumstances” test. State v. Kelly, supra, 256 Conn. 83. Under this test, the mere inference that the exercise of the right to trial will not trigger a remand; rather, the totality of the circumstances must demonstrate that the exer-
I believe there are significant differences between the circumstances the court faced in Kelly and those we confront. In the present case, the court did not simply note that the defendant had forgone an opportunity for leniency. Rather, the court equated the defendant‘s exercise of the right to trial with the absence of remorse. Although the teaching of Kelly is that we must assess all of the circumstances, no part of Kelly requires us to give equal weight to the factors considered by the court. Thus, as in this case, I believe that if it is apparent
Clearly, a court may take a defendant‘s remorse or lack of it into consideration in imposing sentence. Indeed, it is the importance of remorse as a sentencing factor that heightens the risk that equating the exercise of a right to trial to a lack of remorse that may negatively affect a defendant‘s willingness to exercise this fundamental right. Our Supreme Court has stated: “Among the factors that may be considered by a court at a sentencing hearing are the defendant‘s demeanor and his lack of veracity and remorse as observed by the court during the course of the trial on the merits. See, e.g., United States v. Grayson, 438 U.S. 41, 47-48, 50-52, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978); United States v. Rosenberg, 806 F.2d 1169 (3d Cir. 1986), cert. denied, 481 U.S. 1070, 107 S. Ct. 2465, 95 L. Ed. 2d 873 (1987); United States v. Roland, 748 F.2d 1321, 1327 (2d Cir. 1984); McClain v. United States, 676 F.2d 915, 919 (2d Cir.), cert. denied, 459 U.S. 879, 103 S. Ct. 174, 74 L. Ed. 2d 143 (1982) . . . .” (Citation omitted.) State v. Anderson, 212 Conn. 31, 47-48, 561 A.2d 897 (1989). A trial court not only may mitigate the sentence of a truly remorseful defendant but also may aggravate the sentence to deter a remorseless defendant from reoffending. See, e.g., State v. Eric M., 271 Conn. 641, 653-54, 858 A.2d 767 (2004) (“From the statements . . . the trial court reasonably could have drawn the inferences that the defendant was guilty, remorseless and
Here, rather than assessing the sincerity of the defendant‘s remorse by reference to his demeanor as a witness or other behaviors, the court discounted his expression of remorse at sentencing on the basis of its timing, commenting that if he had been truly apologetic, he would not have put the victim through a trial. In doing so, I believe that the court impermissibly conflated the question of remorse with the exercise of a fundamental constitutional right. In arriving at this conclusion, I do not suggest that it is always impermissible for a court to consider, as a sentencing factor, the impact on a victim of being required to testify at trial, but, here, the court went beyond that consideration to conclude that the defendant‘s exercise of a fundamental constitutional right, itself, demonstrated a lack of remorse.11 In
If a defendant‘s election for a trial can be considered, itself, as evidence of the absence of remorse, a significant sentencing factor, it does not take a leap of logic to conclude that such a determination by a sentencing court will have a chilling effect on a defendant‘s exercise of this most fundamental constitutional right. In a
FIBRE OPTIC PLUS, INC. v. XL SPECIALTY INSURANCE COMPANY ET AL.
(AC 30366)
Gruendel, Alvord and Sullivan, Js.
Notes
“First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? . . . Second, is the defendant‘s constitutional claim adequately supported by the record? . . . Third, was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? . . . Fourth, did the deprivation deny the defendant a fair trial, thereby requiring that his conviction be set aside?” (Citations omitted; internal quotation marks omitted.) State v. Thurman, supra, 10 Conn. App. 306-307. It is noteworthy that immediately preceding the defendant‘s allocution, the victim made an impassioned and moving statement to the court in which she discussed how the trial had further traumatized her by causing her and her loved ones to relive the events of the defendant‘s criminal behavior.
But see Johnson v. Commissioner of Correction, 288 Conn. 53, 68-69, 951 A.2d 520 (2008) (Palmer, J., concurring), in which two justices would have reviewed the defendant‘s unpreserved constitutional claim under Golding because the state had briefed and argued the issue and the defendant made all of the same arguments he would have made had he cited Golding in his main brief. See also State v. Alvarez, 216 Conn. 301, 315-16, 579 A.2d 515 (1990) (court presumed defendant sought Evans-Golding review); State v. Moye, 214 Conn. 89, 97-98, 570 A.2d 209 (1990) (same).
Two recent cases, State v. Tomas D., 296 Conn. 476, 496 n.28, 995 A.2d 583 (2010), and State v. Chambers, supra, 296 Conn. 410-11, leave the phrase “affirmative request for review” undefined. This admonition has particular applicability to a system that is almost completely reliant on the plea bargaining process for the disposition of criminal cases. The biennial report of the judicial branch reveals that in the 2004-2005 fiscal year, the Superior Court disposed of 3323 part A criminal cases, only 173 (5.2 percent) by trial, and in the 2005-2006 fiscal year, there were 3049 criminal dispositions, 165 (5.4 percent) by trial. In 2006-2007, there were 3382 criminal dispositions, 137 (4.1 percent) by trial and, in 2007-2008, 2843 criminal dispositions, 146 (5.1 percent) by trial. Where disposition by trial is relatively rare, it is even more important to public confidence in our judicial system, if not to due process itself, that the court not take into consideration at sentencing the rare exercise of the right of the defendant to require the state to prove its case at trial.