This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
STONEBURNER, Judge
In these consolidated appeals, appellant challenges entry of a judgment of dissolution based on a stipulation of the parties and denial of his motion to vacate the judgment and reopen the dissolution action. We affirm.
FACTS
Prior to the final hearing in their dissolution-of-marriage action, appellant Philip R. Anderson (father) and respondent Ki Ok Anderson (mother), who were both represented by counsel, reached agreement on all of the issues relevant to this appeal. At the hearing, the entire agreement was placed on the record, along with Exhibits A and B. Exhibit A is an unsigned agreement relating to property and debt distribution, and Exhibit B sets out the custody and parenting-time agreement.
In relevant part, the parties agreed to joint legal and physical custody of their three children and a parenting schedule providing that father will drive to Baudette from his residence in Walker for exchanges in Baudette when mother resides on Flag Island. On the record at the February 5, 2010 hearing, mother's counsel reviewed the provisions in each exhibit, including the provision stating that when mother resides on Flag Island, exchanges will be in Baudette.
Both parties were questioned by the district court and counsel about their understanding and acceptance of the agreement. Each party stated that he or she had sufficient time to consult with counsel, understood the agreement and accepted the agreement. Father specifically stated that he had heard the agreement placed on the record and understood the implications of the agreement. Father's counsel asked "[Y]ou are of sound mind today?" Father replied, "[y]es," and added, "I took some medicine today, Your Honor." The district court then asked, "well, anything about the medicine that would make it difficult for you to understand?" Father replied, "no. It hasn't kicked in yet." The district court accepted the agreement, stated that the terms would be incorporated into the judgment, and asked mother's counsel to prepare Findings of Fact, Conclusions of Law and Order for Judgment.
Father terminated his counsel's representation by telephone on February 10, 2010. Father's counsel filed a notice of withdrawal on February 12, 2010. On the same day, father sought in forma pauperis status and sent a letter to the district court, stating that he never agreed to travel to Baudette twice per month. Father asserted that he had taken "two hydrocodones 500 mg" (Percocet) before the hearing and was "out of it," such that his attorney should have asked for a continuance. Father asked that the proceedings be stayed until March 5, 2010, to allow him to obtain other counsel and that the district court find that the attorneys engaged in deceptive-trade practices. By letter dated February 17, 2010, the district court informed father that he would have to make a proper motion with notice to mother before the district court could consider any action in the case. The letter also notified father of the district court's intent to sign final documents consistent with the stipulation entered on the record.
On February 18, 2010, the district court signed the findings of fact, conclusions of law and order for judgment prepared by mother's attorney, which were consistent with the stipulation placed on the record. Judgment was entered on the same date. Father then moved to stay and reopen the judgment. Father's motion was heard on March 17, 2010. At the hearing, father made numerous arguments, including that the district court had entered judgment prematurely in violation of court rules, that father had not received copies of Exhibits A and B until after the final hearing, that he was not competent at the hearing due to having taken medication, and that his counsel was incompetent. Father argued about subpoenas he had requested for the March 17 hearing. The district court asked father to specifically state the relief he was requesting. Father replied that he wanted the district court to "amend and correct the judgment" to state that (1) with mother's permission, he should only have to drive to Bemidji, not Baudette, except in the summer; (2) a bill from ACS should be corrected and each party be ordered to pay one-half of the amount owed; and (3) his attorney violated the Deceptive Trade Practices Act. Father also stated that he did not want mother to be liable for past child support owed to father. Mother's attorney objected to reopening the judgment but noted that mother was not liable for past support under the parties' agreement.
The stipulated judgment made father responsible for a $436.51 debt to ACS.
On the record, the district court found that issues relating to subpoenas served by father were moot and took the remaining issues under advisement. By order dated March 22, 2010, the district court denied father's motion to reopen the judgment, concluding that father "failed to show that there was fraud, excusable neglect, surprise, newly discovered evidence or any other basis under the rules which would justify reopening the judgment and decree." Attached to the order is the portion of the transcript of the February 5, 2010 hearing, in which father asserts that he understood and agreed to the stipulation as presented in open court and that he was of sound mind and not affected by the medicine he took.
Father's separate appeals challenging the terms of the judgment and the denial of his motion to reopen the judgment have been consolidated.
DECISION
On appeal, father's pro se brief and supporting documents assert, often by mere question, nearly twenty issues. Many of the issues asserted are inadequately briefed to permit appellate review. See Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n. 1 (Minn. App. 1994) (declining to address allegations unsupported by analysis or citation). And many of the issues asserted by father were not raised in the district court and therefore are not considered on appeal. See Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988) (stating that this court will generally not consider issues that were not argued to and considered by the district court). Some issues are not supported by anything in the record, or are beyond the scope of the dissolution action and will not be considered in this appeal. We will address the issues adequately raised to permit appeal.
For example, the following issues are without support in the record: (1) mother's attorney coerced father to settle; (2) an e-mail from the Court of Appeal's chief attorney somehow prejudiced father's case; (3) collusion existed between counsel and/or among court staff and counsel, to father's prejudice.
For example, the following claims are beyond the scope of the action: (1) claims that attorneys' misrepresentations violate the Deceptive Trade Practices Act; (2) the assertion that pro se dissolution litigants should have court-appointed counsel at trial and on appeal. See State ex rel. Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. App. 1985) (finding no statutory or constitutional right to counsel in dissolution proceedings); (3) claims that the district court violated father's rights under the Americans with Disabilities Act; (4) claims that Minn. Stat. § 563.01 (2008) (regarding in forma pauperis status) is unconstitutional as applied to pro se litigants; (5) assertions under 42 U.S.C. § 1983 (2006).
I. Challenges to district court's dissolution order.
Father asserts, in relevant part, that the district court's entry of judgment is "unlawful" because: (1) father was incompetent at the final hearing; (2) the district court failed to defer entry of judgment for 14 days as required by Minn. R. Gen. Pract. 307(b); (3) father's counsel was incompetent; and (4) the district court adopted verbatim the proposed order prepared by mother's counsel.
A. The record demonstrates that father was sufficiently competent to validate the stipulation.
Father first argues that he was not competent during the February 5, 2010 hearing because he had taken two Percocet pills before the proceeding. A district court judge's finding of competency will not be reversed unless it is a clear abuse of discretion. Ellington v. Great N. Ry. Co., 92 Minn. 470, 475, 100 N.W. 218, 220 (1904).
Father has made inconsistent statements about his own knowledge of the medication he took before the hearing. He has asserted that it was not until after the hearing that he discovered that he had taken Percocet rather than a different medication, but he has also asserted that both counsel were aware that father had taken Percocet before the hearing.
Father attempted to present the testimony of his treating physician as new evidence supporting his assertion that he was not competent to proceed due to the medication. Father provided a letter to the district court from this physician stating that father reported taking two doses of Percocet and "suffered some mental confusion that lasted approximately 6 to 8 hours." The letter states that the doctor "has been informed that [father] was involved in a legal matter during this period of time and [the doctor] feel[s] that [father] may not have been totally competent during that evaluation."
The district court's denial of father's motion to reopen the judgment constitutes an implicit ruling that father was sufficiently competent to proceed at the hearing. That determination is supported by the district court's attachment of the portion of the hearing transcript in which father asserts his understanding of the stipulation and that he was not affected by the medication he had taken at the time of the hearing.
Father does not provide any analysis of the issue of competency. We conclude that, in this case, the level of competency required is the competence to enter into an agreement. "Mere mental weakness does not incapacitate a person from contracting. It is sufficient if he has enough mental capacity to understand, to a reasonable extent, the nature and effect of what he is doing." Timm v. Schneider, 203 Minn. 1, 4, 279 N.W. 754, 755 (1938) (quotation omitted). The physician's speculation that father may not have been "totally" competent at the time of the hearing is irrelevant to father's capacity to contract. There is no indication in the transcript that father was not able to understand, to a reasonable extent, the nature and the effect of the stipulation. Because the judge observed father at the hearing and questioned father to determine that he was sufficiently competent, in the absence of contrary evidence, we cannot conclude that the district court abused its discretion or that father is entitled to any relief based on his current assertion that he was impaired by the medication.
B. Premature entry of the judgment in violation of Minn. R. Gen. Pract. 307(b) is harmless error.
Father argues that the district court improperly entered judgment 13 days after the stipulation was entered on the record in violation of Minn. Gen. R. Pract. 307(b) which provides, in relevant part, that
At the hearing on father's motion to reopen the judgment, father cited Minn. R. Gen. Pract. 308 as requiring the 14-day delay. Mother's counsel correctly pointed out that there is no such requirement in rule 308, but incorrectly stated that no such requirement exists. Father's written submissions correctly identified rule 307(b).
[w]here a stipulation has been entered orally upon the record, the lawyer directed to prepare the decree shall submit it to the court with a copy to each party. . . . Entry of the decree shall be deferred for 14 days to allow for objections unless the decree contains the written approval of the lawyer for each party.
Interpretation and application of procedural rules are legal issues that are reviewed de novo. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 153 (Minn. 2001).
Because the proposed judgment did not contain the written approval of father, or father's attorney before that attorney withdrew, the district court violated the rule by entering the judgment 13 days, rather than 14 days after submission. But the purpose of rule 307(b) is to allow objections, and once objections are made, a timing defect is not fatal. See Clark v. Clark, 642 N.W.2d 459, 465 (Minn. App. 2002) (holding that failure to comply with rule 307(b) is harmless error when the litigant receives the review that he or she would have received had the rule been followed). In this case, father immediately objected to entry of judgment based on the stipulation and does not allege any prejudice from the violation. We therefore conclude that violation of rule 307(b) was harmless error. See Minn. R. Civ. P. 61 (requiring that harmless errors be ignored).
C. The record does not support father's allegations of attorney incompetence.
Father essentially asserts that his attorney was incompetent. The two allegations made by father in support of this argument are that his counsel lost the witness list before trial and therefore did not call any witnesses, and that his attorney failed to move for a continuance after father informed his counsel that he had taken Percocet before the hearing.
Father cites Shirk v. Shirk, 551 N.W.2d 504, 506 (Minn. App. 1996) (holding that "incompetent representation is by itself a sufficient basis for vacating" a stipulation in a dissolution matter). In Shirk, this court affirmed the order of the district court that set aside a stipulation in a dissolution matter based on a finding that counsel's sexual advances toward his client, coupled with counsel's haste to end the case due to counsel's own financial needs, precluded a finding of competency of counsel. But the facts of Shirk are distinguishable and, more importantly, Shirk has been reversed on this point of law. See Shirk v. Shirk, 561 N.W.2d 519, 523 (Minn. 1997) (overruling the Minnesota Court of Appeals' interpretation of Shirk, holding that the alleged "ethical violation does not constitute grounds for reopening the judgment and decree").
And father does not clarify how any prejudice resulted from counsel's alleged loss of the witness list in light of the parties' stipulation that eliminated the need for witnesses. The record does not support father's assertion that his attorney knew what medication father took before the hearing or that his attorney had any indication that father was not sufficiently competent to proceed. Father has failed to establish that he is entitled to reopen the judgment due to incompetent counsel.
D. The district court did not commit reversible error by adopting verbatim the proposed findings of fact, conclusions of law, and order for judgment prepared by mother's attorney.
At the close of the dissolution hearing, the district court asked mother's counsel to prepare the final documents. Father now challenges the district court's verbatim adoption of the documents prepared. This court has criticized the verbatim adoption of one party's proposed findings, conclusions and order in a contested matter, but even in contested matters, we have never held that such practice is reversible error per se. See Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (strongly cautioning that "wholesale adoption of one party's findings and conclusions raises the question of whether the district court independently evaluated each party's testimony and evidence," but reiterating that verbatim adoption is not reversible error per se). We are not aware of any authority discouraging verbatim adoption of documents prepared at the district court's direction and based on the stipulation of the parties. We find no merit in father's assertion that the district court committed any error by adopting the documents that accurately reflected the agreement submitted to the district court.
II. Challenges to the denial of father's motion to reopen the dissolution order.
Father challenges the denial of his motion to reopen the judgment, arguing that (1) the court should have appointed counsel to represent him; (2) his rights to substantive and procedural due process were violated when he was not allowed to present evidence or witnesses at the court's expense and when the court did not explain witness procedures to him; and (3) an e-mail from this court's chief staff attorney created some disadvantage during the hearing and illustrated collusion to disadvantage father. As noted above, most of these assertions are not addressed on appeal because they are outside the scope of the dissolution, unsupported by any evidence in the record and/or inadequately briefed.
The district court found that appellant did not establish grounds on which the judgment and decree could be reopened. A district court's findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966). A decision not to reopen the judgment and decree will not be disturbed absent an abuse of discretion. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989).
Father argues that at the hearing on his motion to reopen the judgment, the district court should have allowed him to call witnesses, that the district court should have explained the procedures for presenting witnesses, and that father was not properly notified when the district court granted him in forma pauperis status, which, father argues, would have allowed him to obtain the funds to properly secure his witnesses. Father argues that not allowing him to present live testimony violates his right to due process.
"[T]he use of oral testimony upon the hearing of a motion has been said to be discretionary with the district court and not a matter of right." Saturnini v. Saturnini, 260 Minn. 494, 496, 110 N.W.2d 480, 482 (1961). Hearings on family law motions are governed by Minn. R. Gen. Pract. 303.03(d), which provides, in relevant part, that "[m]otions . . . shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown." Father testified that his doctor and an unnamed detective were prepared to testify that on the day of the final divorce hearing, appellant was incompetent because he had taken medication. The information from father's doctor is discussed above. Because the district court personally observed father at the hearing and questioned him about his understanding of the agreement and effect of medication he had taken, the district court did not abuse its discretion by declining to allow the testimony of any other person who may have observed father.
III. Father's additional claims.
To the extent that father has made allegations and assertions on appeal that are not specifically mentioned in this opinion, we have declined to review such assertions as insufficiently articulated or analyzed to permit meaningful review. Despite father's dissatisfaction with the process and result of the dissolution action, we conclude that he has failed to present any basis to vacate, reopen, or amend the judgment. The district court retains jurisdiction over parenting issues, and the law permits modification of parenting agreements if the statutory bases for modification are met. See Minn. Stat. § 518.18 (2008) (governing modification of custody orders and parenting plans).
Affirmed.
/case/state-v-rodriguez-547255 Conn. 928,
767 A.2d 103 (2001);
State v. Jones, 34 Conn. App. 807, 815,
644 A.2d 355 (same), cert. denied,
231 Conn. 909,
648 A.2d 158 (1994).
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 persuaded 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. Such objection would have alerted the court to the claim of error, afforded the court an opportunity to address the claim on the record and, if necessary, to take corrective action in advance of an appeal. On several occasions, this court has indicated that Golding applies in its review of sentencing claims similar to the sentencing claim at issue. See, e.g., State v. Bazemore, 107 Conn. App. 441, 459-60, 945 A.2d 987 (court rejects under Golding's third prong unpreserved claim that trial court improperly considered several uncharged crimes at sentencing), cert. denied, 287 Conn. 923, 951 A.2d 573 (2008); State v. Dudley, 68 Conn. App. 405, 425-26, 791 A.2d 661 (court rejects under Golding unpreserved claim that trial court considered improper factors at sentencing), cert. denied, 260 Conn. 916, 797 A.2d 515 (2002); State v. Middlebrook, 51 Conn. App. 711, 732-33,725 A.2d 351 (court declines to review unpreserved claim that trial court made improper remarks at sentencing because defendant did not request Golding or plain error review in connection with such claim), cert. denied, 248 Conn. 910, 731 A.2d 310 (1999); State v. Patterson, 23 Conn. App. 431, 432, 580 A.2d 548 (court concludes unpreserved claim that trial court considered improper testimony at sentencing not constitutional in nature and thereby rejects request for Evans-Golding review), cert. denied, 216 Conn. 831, 583 A.2d 131 (1990).
In his concurring and dissenting opinion, Judge Bishop states that "it would have been extraordinarily difficult and of no practical value under these particular circumstances for counsel to have interrupted the court during its sentencing comments in order to effect any change in the sentence imposed because the court's comments revealed that it had already formulated its view tying together the defendant's absence of remorse with his exercise of the fundamental right to a trial." See footnote 1 of Judge Bishop's concurring and dissenting opinion.
Respectfully, we disagree with these observations on several grounds. First, if the defendant's trial counsel had a good faith basis in the law to object to the trial court's comments at the time of sentencing, it was his immediate obligation to raise such objection before the court See, e.g., State v. Stewart, 64 Conn. App. 340, 352, 780 A.2d 209 (discussing general obligation of defense counsel to raise objections on behalf of defendant), cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). Second, we do not suggest 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 serve 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, 61L. 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."
In State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004), our Supreme Court concluded that it was unnecessary for a defendant to seek to prevail under Golding and for a reviewing court to engage in a Golding analysis of prosecutorial impropriety claims. The court explained: "The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . . Regardless of whether the defendant has objected to an incident of [impropriety], a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the [impropriety] is viewed in light of the entire trial. The application of the Williams factors, therefore, is identical to the third and fourth prongs of Golding. . . . Requiring the application of both Williams and Golding, therefore, would lead . . . to confusion and duplication of effort. Furthermore, the application of the Golding test to unchallenged incidents of [impropriety] tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of [impropriety] must be viewed in relation to one another and within the context of the entire trial. The object of inquiry before a reviewing court in claims involving prosecutorial [impropriety], therefore, is always and only the fairness of the entire trial, and not the specific incidents of [impropriety] themselves. Application of the Williams factors provides for such an analysis, and the specific Golding test, therefore, is superfluous." (Citations omitted.) State v. Stevenson, supra, 573-74. The court also noted: "In this regard, we assume, of course, that the defendant's claimed prosecutorial [impropriety] is in fact presented by an adequate record — essentially the first Golding requirement. We note also that a claim of prosecutorial [impropriety] will, by its very nature, be of truly constitutional magnitude — essentially the second Golding requirement." Id., 574 n. 11.
Unpreserved claims concerning the sufficiency of the evidence or prosecutorial impropriety, by virtue of their subject matter, are not reviewed under Golding. Additionally, both our Supreme Court and this court have concluded that, regardless of whether the claim raised on appeal is of constitutional magnitude, Golding review is unavailable if an appellant induced the error at issue. See, e.g., State v. Coward, 292 Conn. 296, 305, 972 A.2d 691 (2009) ("we have refused to review claims of induced error under Golding"); State v. Cruz, 269 Conn. 97, 107, 848 A.2d 445 (2004) ("the defendant is not entitled to [ Golding] review of his claim of induced impropriety because he requested the very jury instruction he now challenges"); State v. Coleman, 114 Conn. App. 722, 733-34, 971 A.2d 46 (concluding that defendant not entitled to review of induced error), cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). In a similar vein, both our Supreme Court and this court have routinely declined to afford Golding review to claims that have been waived. See, e.g., Mozell v. Commissioner of Correction, 291 Conn. 62, 70, 967 A.2d 41 (2009) ("when a right has been affirmatively waived at trial, we generally do not afford review under either Golding or the plain error doctrine"); State v. Hudson, 122 Conn. App. 804, 814, 998 A.2d 1272 (declining to afford Golding review to waived claim), cert. denied, 298 Conn. 922, A.3d (2010).
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, 45-46, 996 A.2d 259 (2010) (Appellate Court, as intermediate court of appeal, not at liberty to overrule, reevaluate or reexamine controlling precedent of Supreme Court). Accordingly, we conclude that this claim falls within the ambit of the Golding doctrine.
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. 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.
Recently, this court addressed the issue in State v. Wright, 114 Conn. App. 448, 969 A.2d 827 (2009), a decision we address in greater detail later in our analysis.
In interpreting the affirmative request requirement associated 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 which a party may request review pursuant to Golding. Rather, what is required in making an affirmative request for review, is that a party present an analysis consistent with the principles codified in Golding for the review of unpreserved claims of constitutional magnitude. As a starting point, a party seeking review of such claim must alert the reviewing court to the fact that the claim is unpreserved or that there is a possibility that the reviewing court may determine that the claim is not properly preserved for appellate review. Thereafter, the party must, in its main brief, present an analysis based in law and tailored to the unique circumstances surrounding the claim that, if the reviewing court determines that the claim is not preserved, the claim nevertheless is reviewable on appeal because (1) the record is adequate to review the claim and (2) the claim is of constitutional magnitude, alleging the deprivation of a fundamental constitutional right.
Such an acknowledgment may be made expressly or by reasonable implication. For example, a party's request for "review pursuant to Golding," or words to that effect, reasonably would alert a reviewing court to the fact that an issue of preservation exists with regard to the claim at issue. Obviously, a party may argue that a claim is preserved properly for review and, in the alternative, argue that, if the reviewing court concludes otherwise, review of the unpreserved claim is appropriate because the record is adequate for review and the claim is of constitutional magnitude. Such a method of argument commonly appears in briefs submitted to this court.
"The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail." (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). To demonstrate that a claim is reviewable under Golding, a party must demonstrate that, despite the fact that the claim was not raised at trial and, thus, the court did not have an opportunity to rule upon the claim, the record is adequate for review and the claim is of constitutional magnitude. See State v. Golding, supra, 213 Conn. 239.
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 main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude. It would render meaningless the requirement that an affirmative request be made were this court to conclude that a defendant could bear his or her burden of affirmatively requesting review under Golding simply by setting forth an unpreserved claim of constitutional magnitude. In In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009), the appellant raised an unpreserved constitutional claim on appeal before our Supreme Court. The court declined to review the claim, stating: "It is well established . . . that parties affirmatively seek to prevail under Golding, and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims. . . . In the present case, however, the [appellant] does not seek a review under Golding. Her brief makes no mention of, or request for Golding review. Consequently, we decline to review the [appellant's] constitutional claims." (Citation omitted.) Id. Certainly, In re Melody L. reinforces precedent that requires appellants affirmatively to request review under Golding and supports our conclusion that merely raising a claim of constitutional magnitude on appeal is insufficient to invoke Golding. Similarly, to provide a reviewing court only with an analysis of the merits of an unpreserved claim of constitutional magnitude, without any analysis of the reviewability of the claim, does not satisfy the requirement that such party affirmatively address its entitlement to review of the claim. Our case law makes clear that Golding is, and was intended to be, a narrow exception to the general prohibition against reviewing unpreserved claims on appeal. It is wholly consistent with this view of Golding that a party be required to request, in an affirmative manner, that such review be undertaken.
In the present case, insofar as it concerns the sentencing claim at issue in this appeal, the defendant, in his main brief, analyzes the claim under the federal constitution. The defendant's main brief does not identify or address any issues related to the reviewability of the claim; it does not state that any extraordinary level of review is requested, does not refer to the Golding opinion either by name or in substance and does not address the issue of the adequacy of the record to review the claim. In his main brief, the defendant did not present an analysis that, if the claim was not preserved, it nevertheless should be reviewed. In short, the defendant stated and analyzed the claim as though it were a properly preserved due process claim. We cannot conclude that such a briefing strategy satisfied the defendant's burden of affirmatively requesting review pursuant to Golding. In accordance with the authority cited previously in this opinion, the defendant's explicit request for review under Golding, contained in his reply brief, is of no consequence to our analysis. Under the circumstances present, we conclude that the defendant, in his main brief, did not affirmatively request review under the principles set forth in Golding. Accordingly, we decline to engage in such review of his unpreserved claim.
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). The defendant in Wright raised a claim of constitutional magnitude for the first time on appeal. Id., 457. In his main brief, the defendant in Wright did not cite to Golding but provided this court with a record that was adequate to review the claim and, by discussion of relevant authority, demonstrated that his claim was of constitutional magnitude. Id., 463-64. The state argued that the claim was not reviewable on appeal because it was unpreserved and the defendant had failed explicitly to request review under Golding. Id., 456. In a thorough analysis of the reviewability issue presented in Wright, this court reasoned that it was "[not] mandatory for a defendant to cite Golding to obtain review of an unpreserved claim of a constitutional deprivation at trial. . . ." Id., 463. The court equated such a requirement as inimical to the rationale of Golding and the equivalent of adding a "fifth prong" to the Golding test. Id., 460. The court, considering what steps a defendant must take to alert a reviewing court that Golding review is requested, concluded that a defendant is entitled to review under Golding if he "present[ed] a record that is adequate for review and affirmatively [demonstrated] that his claim is indeed a violation of a fundamental constitutional right." (Internal quotation marks omitted.) Id., 463. Thereafter, the court reviewed the unpreserved claim under Golding and disposed of the claim under Golding's third prong. Id., 469.
Wright was argued before a three judge panel of this court. The concurring judge in Wright disagreed with the majority's Golding analysis, concluding that "the defendant has failed to brief adequately the issue of whether he is entitled to Golding review." State v. Wright, supra, 114 Conn. App. 470 ( DiPentima, J., concurring).
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 requesting review, Wright leaves it to a reviewing court, sua sponte, to determine whether review of the claim under Golding is appropriate on the basis of the adequacy of the record and the nature of the claim raised on appeal. This, in our view, eviscerates the requirement established in our case law that a defendant, in an affirmative manner in his main brief, request review pursuant to the Golding doctrine. Such an interpretation of the affirmative request requirement contravenes precedent requiring defendants to "bear the burden of establishing their entitlement to . . . review under the guidelines enumerated in Golding." State v. Waz, supra, 240 Conn. 371 n. 11. To have any meaningful significance, the affirmative request requirement cannot be satisfied by a defendant's silence; he must alert the court as well as the adverse party that review of a claim that the reviewing court may determine is unpreserved is requested and, by competent analysis, why such review is appropriate in accordance with the principles set forth in Golding.
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 thereof. 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 appellant has not made a clear request for such level of review. In other words, the approach in Wright leaves it to the reviewing court to determine if Golding review is appropriate without, first, requiring that a party raise such reviewability issue in its brief. Certainly, such an interpretation of the affirmative request requirement risks an application of Golding that is, and likely may be perceived to be, less than uniform in nature.
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 brief is devoid of any analysis as to why such review is appropriate in light of the unique circumstances surrounding this claim. The defendant's request suffers from several infirmities.
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 request 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).
Third, even were we to consider, sua sponte, exercising our inherent supervisory authority to review the unpreserved claim, we conclude that the interests of justice do not require that we exercise our supervisory powers to grant the defendant relief. "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 those 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. Connor, 292 Conn. 483, 518-19n.23,973 A.2d 627 (2009). "Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n. 28, 859 A.2d 907 (2004). "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. State v. Ramos, [supra,261 Conn. 172 n. 16]. [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. . . . State v. Anderson, 255 Conn. 425, 439, 773 A.2d 287 (2001)." (Internal quotation marks omitted.) Smith v. Andrews, supra, 289 Conn. 79.
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 complete trial, and that is one of the legal factors to consider in sentencing." (Internal quotation marks omitted.) Id. In analyzing the defendant's claim that the trial court, at the time of sentencing, improperly had considered his decision to stand trial, our Supreme Court focused exclusively on whether the trial court had augmented the defendant's sentence because he had exercised such right. Id., 81-84. Thus, the court began its analysis by stating: "[A] trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb a trial court's sentencing decision only if that discretion clearly has been abused. . . . In spite of that discretion, however, the [a]ugmentation of sentence based on a defendant's decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty is clearly improper." (Citation omitted; internal quotation marks omitted.) Id., 80-81. Furthermore, our Supreme Court explicitly stated that, in determining whether the trial court's comments concerning the defendant's decision to proceed to trial had infringed upon his constitutional rights, a reviewing court must, based upon a totality of the circumstances apparent in the entire record, determine whether the court had "lengthened a defendant's sentence as a punishment for exercising his or her constitutional right to a jury trial. . . ." Id., 82. The court determined that it was the defendant who carried the burden of proof with regard to such claims. Id.
It is noteworthy that this court has applied Kelly's analytical approach to a claim that a court, at the time of sentencing in a revocation of probation hearing, improperly drew an adverse inference from a defendant's silence at the hearing. See State v. Fisher, 121 Conn. App. 335, 347-53, 995 A.2d 105 (2010). In Fisher, the defendant claimed that the court's remarks at sentencing reflected that it had drawn an adverse inference from his silence, thus violating his fifth amendment privilege. Id., 349. In analyzing the claim, this court asked whether "the totality of the circumstances surrounding the defendant's sentencing gives [any] indication that the court improperly augmented the defendant's sentence on the basis of his decision to exercise his privilege to remain silent throughout the revocation hearing." (Emphasis 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.
The Kelly court examined relevant precedent, observing that courts that have considered claims of a similar nature "generally have required remarks by a trial judge to threaten explicitly a defendant with a lengthier sentence should the defendant opt for a trial, or indicate that a defendant's sentence was based on that choice." Id. The court observed that "[w]here a trial court employed more ambiguous language, however, courts generally have rejected claims that the trial court infringed on the defendant's rights." Id., 83.
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.
The record in the present case is inherently ambiguous with regard to whether the court, in fact, augmented the defendant's sentence because he elected to stand trial. First, the court's comments reasonably can be interpreted as a mere assessment of the sincerity of the defendant's apology, not a criticism of his election to stand trial. Second, although the court made the comment at issue concerning the defendant's apology at the sentencing proceeding, it is not clear whether the court considered that sentiment when it actually imposed the sentence. Third, if anything, the transcript of the court's comments at sentencing reflects that the court imposed the sentence that it did because it viewed the defendant, by virtue of his criminal conduct, to be a dangerous person from whom society should be protected and stated that he had committed the present crimes while on pretrial release. Immediately prior to imposing sentence, the court did not discuss the defendant's apology or his decision to stand trial but only the evidence presented at trial concerning the crime and the manner in which the defendant committed it. On appeal, the rulings of the trial court are entitled to a presumption of correctness; a reviewing court does not presume error on the basis of an incomplete or ambiguous record. See State v. Crumpton, 202 Conn. 224, 231-32, 520 A.2d 226 (1987); State v. Tocco, 120 Conn. App. 768, 781 n. 5, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010); State v. Koslik, 116 Conn. App. 693, 704-705, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). Absent an articulation related to the factors actually considered by the trial court in imposing sentence, it would require this court to engage in speculation and conjecture to determine what the trial court meant by the comment at issue and whether such comment in any way affected the severity of the sentence imposed. It is well settled that "speculation and conjecture . . . have no place in appellate review." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009).
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.
In his concurring and dissenting opinion, Judge Bishop concludes that this court should exercise its supervisory authority and remand the case for resentencing. In so concluding, the concurring and dissenting opinion relies upon its underlying determination that "the [trial] court impermissibly tainted the sentencing process" because "the court's comments revealed that it had already formulated its view tying together the defendant's absence of remorse with his exercise of the fundamental right to a trial."
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 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, supra, 297 Conn. 45-46. Accordingly, we disagree that any departure from Kelly is warranted here.
The other aspect of the defendant's sentencing claim presents an even weaker case for the exercise of our supervisory authority. That aspect of the claim is that the court deprived him of his right to due process when it considered at the time of sentencing the knife that was a full exhibit at trial. On appeal, the defendant claimed that the court improperly admitted the knife into evidence, and this court rejected that evidentiary claim on its merits. State v. Elson, supra, 116 Conn. App. 212-19. This sentencing claim is not an opportunity to relitigate that evidentiary claim. Furthermore, it defies logic for the defendant to suggest that the court may not consider the evidence presented at trial in imposing its sentence. Simply put, the claim that the court improperly considered this properly admitted evidence at the time of sentencing does not, to any degree, implicate concerns related to the fairness of the defendant's trial, let alone the fair administration of justice in general. Accordingly, we decline the defendant's request that we exercise our supervisory authority with regard to either aspect of the sentencing claim.
The judgment is affirmed.
In this opinion DiPENTIMA, C. J., and GRUENDEL, BEACH and ALVORD, Js., concurred.
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 impropriety during proceedings. See id. ("[T]he trial judge should be cautious and circumspect in his language and conduct. . . . A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness. . . ." [Citation omitted; internal quotation marks omitted.]). To fulfill its duty as minister of justice, the court must act to safeguard a criminal defendant's constitutional rights during criminal proceedings. State v. Phidd, 42 Conn. App. 17, 33, 681 A.2d 310 ("The United States and Connecticut constitutions have afforded individuals certain minimum rights in criminal proceedings. The trial court safeguards these rights and ensures that none is violated during a criminal prosecution."), cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997). Therefore, the public's confidence in the judiciary directly correlates to the public's perception as to whether the court is fulfilling its duties. Consequently, any action by the court suggesting that it has strayed from these duties has the effect of undermining the public confidence in the judiciary.
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 a result, the criminal defendant becomes less willing to exercise his or her fundamental right and the public loses confidence in the integrity of the judiciary.
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, 567 A.2d 823 (1989)] or [the] plain error [doctrine]." (Emphasis added.) State v. Ramos, 261 Conn. 156, 172 n. 16, 801 A.2d 788 (2002). "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 those 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." (Citation omitted; internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 332-33, 715 A.2d 1 (1998). "Our 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." State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998).
"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) 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 defendant . . . 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 (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).
Our Supreme Court also has exercised its supervisory authority in other circumstances, such as to relax the strict application of the appellate rules; see State v. Reid, 277 Conn. 764, 778-79, 894 A.2d 963 (2006); and to reach a defendant's due process claim even though the claim fell outside the purview of the statute under which he was appealing. See State v. Revelo, 256 Conn. 494, 502-504, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001).
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 case relied on by the defendant for the proposition that this court may invoke its supervisory authority sua sponte to consider his claim is State v. Ramos, supra, 261 Conn. 156, a case very similar to the present case.
In Ramos, the defendant was convicted of, among other crimes, two counts of murder. State v. Ramos, supra, 261 Conn. 158. On appeal, the defendant argued that "the trial court improperly instructed the jury as to the provocation exception to the justification of self-defense." Id., 169. In the body of the opinion, our Supreme Court determined that the defendant had not properly preserved this claim and, furthermore, that he was not entitled to review under Golding or the plain error doctrine because he had not "affirmatively . . . request[ed] review under these doctrines." Id., 171. Notwithstanding this finding, the court stated, in a footnote, that "[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." Id., 172 n. 16. After extensive review of the jury instruction, however, the court held that "the interests of justice do not require that we review the defendant's claim regarding the provocation instruction." Id.
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 the [defendant's] burden to provide an adequate record for review. . . . It is, therefore, the responsibility of the [defendant] to move for an articulation . . . where the trial court has failed to state the basis of a decision. . . . In the absence of any such attempts, we decline to review [the] issue." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003).
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 days 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.
In reviewing the defendant's claim, our Supreme Court stated that "whether a particular [in-chambers] proceeding qualifies as a critical stage of the prosecution is a necessarily fact intensive inquiry. . . . [I]t is imperative that the record reveal the scope of discussion that transpired." (Internal quotation marks omitted.) Id., 412-13. Thereafter, the court found that the record was deficient and did not permit review of the claim because "the only evidence in the record regarding what transpired in chambers consist[ed] of two passing references by [the trial court] indicating merely that there had been such a meeting." (Emphasis in original.) Id., 413. The court noted that the defendant had the burden of providing an adequate record and that he had failed to request an articulation or rectification of the record. Id., 414. On the basis of the limited record, the court held that it would "not speculate about the constitutional significance of the in-chambers discussions or reverse the defendant's conviction on the basis of that speculation. Accordingly, irrespective of whether review is sought under Golding or pursuant to our supervisory authority, we conclude that the record is inadequate for us to review the defendant's constitutional challenge to his absence from that proceeding." 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.
Under the present facts, however, we are unable to evaluate the totality of the circumstances because the defendant did not provide this court with an adequate record upon which to review his claim. The only evidence provided in the record regarding the court's consideration of the defendant's choice to exercise his constitutional right is the statement set forth previously, which was made following the victim's statement and the defendant's statement to the court. As evidenced by the well reasoned opinions in this case, however, it is clear to me that reasonable minds can disagree as to whether the court's statement concerning the defendant's remorse actually was factored into the court's sentence. More specifically, the court's statement is simply ambiguous and does not disclose whether the court considered the defendant's exercise of his constitutional right as a sentencing factor or merely opined as to the defendant's sincerity. Consequently, I do not believe that we should exercise our 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, although it may have been awkward for the defendant, I do not agree that the defendant's preservation of the issue would have been extraordinarily difficult and would have served no useful purpose.
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.
DUPONT, J., concurring in part.
I concur in the majority opinion and agree that the judgment of the trial court should be affirmed. I write separately to express my disagreement with the majority's interpretation of the meaning of "affirmative request" as used by our Supreme Court in order to determine whether a defendant can obtain review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), of a claimed constitutional deprivation that was not preserved at trial, and with the majority's decision to overrule in part State v. Wright, 114 Conn. App. 448, 969 A.2d 827 (2009).
"[A] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . ." (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809,817, 960 A.2d 1027 (2008). Neither party in Wright petitioned our Supreme Court for review. I believe that Wright is logically and legally robust and does not contravene any Supreme Court or Appellate Court decision. See W. Horton K. Bartschi, "2009 Appellate Review," 84 Conn. B.J. 1, 13 (2010) (noting that "[i]n State v. Wright, [supra, 114 Conn. App. 448], the court held that the defendant need not cite Golding by name to invoke Golding review" but not commenting on soundness of that holding).
This appeal was first argued in the 2008-2009 court year before a three judge panel of this court and was the subject of a 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 as a factor in his sentencing, thereby impermissibly punishing him for exercising a constitutional right. The defendant raised and adequately briefed the constitutional claim in his main brief. In its brief, the state argued that the defendant's claim was not reviewable because he had failed to preserve it at trial and had failed to invoke any doctrine of extraordinary review of the claim on appeal. In its brief, the state, explicitly arguing in the alternative, also analyzed the defendant's constitutional claim on its merits. The defendant requested review of this claim pursuant to Golding in his reply brief. In my opinion, the question is whether the defendant had made in his main brief an "affirmative request for review" pursuant to Golding and its progeny in order to obtain such review based on Golding itself and subsequent Supreme Court cases.
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).
The third member of the original panel would have reached the issue by invoking our supervisory power over the administration of justice and would grant remand of this case to the trial court for resentencing. See State v. Elson, supra, 116 Conn. App. 246 ( Bishop, J., concurring in part and dissenting in part). My conclusion that the defendant failed to demonstrate that the alleged constitutional violation clearly deprived him of a fair trial should not be construed as my approval of the comments made by the judge at sentencing.
Upon a rehearing and a reconsideration of the reviewability of the sentencing issue, the majority has concluded that because the defendant did not "affirmatively request" Golding review of the unpreserved claim, he was not entitled to such review. The majority defines such an affirmative request as "nothing less than an explicit assertion and analysis in a party's main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude." See part I of the majority opinion. Our Supreme Court has not, in any case of which I am aware, defined precisely or amplified what it meant by the phrase "affirmative request" for appellate review of an unpreserved constitutional claim, as originally used in State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002) ("[a] party is obligated . . . affirmatively to request review under [ Golding]"). It is my hope that our Supreme Court will elucidate the phrase in order that this court and the Connecticut bar can know what may be needed, if anything, to implement that court's decision in Golding. Specifically, our Supreme Court has not yet decided whether the phrase is intended to expand or modify the original directions of Golding, namely, its first two prongs. I depart from the majority insofar as it interprets the "affirmative request" requirement as requiring anything more than satisfying the first two prongs of Golding itself. Accordingly, I would not overrule State v. Wright, supra, 114 Conn. App. 448.
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 by [an appellate] court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second `exceptional circumstance' may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." (Citation omitted.) Id.
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. 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), an approach that was cited favorably by our Supreme Court in State v. Bailey, 209 Conn. 322, 329 n. 4, 551 A.2d 1206 (1988), and was employed by this court in numerous decisions.
See S. Sellers, "State v. Golding: A Standardless Standard?," 65 Conn. B.J. 245, 246-51 (1991).
"We must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question. . . . The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review. . . .
"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.
See, e.g., State v. Robinson, 14 Conn. App. 40, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L Ed. 2d 233 (1988); State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988); State v. Arroyo, 13 Conn. App. 687, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988); State v. Vega, 13 Conn. App. 438, 537 A.2d 505 (1988); State v. Peterson, 13 Conn. App. 76, 534 A.2d 1237 (1987); State v. Griffin, 12 Conn. App. 221, 530 A.2d 210 (1987); State v. Day, 12 Conn. App. 129, 529 A.2d 1333 (1987); State v. Diorio, 12 Conn. App. 74, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988); State v. Foshay, 12 Conn. App. 1, 530 A.2d 611, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987); State v. McKenna, 11 Conn. App. 122, 525 A2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987); State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A2d 523 (1987).
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. 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 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." (Emphasis in original.) Id., 239-40. Case law is clear that "[t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail." (Internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002).
In State v. Golding, supra, 213 Conn. 233, our Supreme Court reversed a decision by this court. Our court had concluded that the defendant's claim was not reviewable under Evans because it failed to satisfy the second question of Thurman, as it was not "truly of constitutional proportions, but [was] simply characterized by her as such." State v. Golding, 14 Conn. App. 272, 279, 541 A2d 509 (1988), rev'd, 213 Conn. 233, 567 A2d 823 (1989). The issue was whether the amount obtained by fraud was an essential element of the crime charged, and the Supreme Court concluded that it was. State v. Golding, supra, 213 Conn. 238. The court stated: "[T]he Appellate Court erred by refusing to review the defendant's claim since she proffered a constitutional claim and the record was clearly adequate to review that claim." Id. Our Supreme Court thus admonished this court that review of an unpreserved constitutional deprivation should be granted if a defendant has made a constitutional claim and presented a record adequate for such a review.
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 associated an "affirmative request" requirement with a Golding review of unpreserved claims. Although the majority in the present case has cited numerous instances since Ramos in which our Supreme Court has reiterated that an appellant has a duty to "affirmatively request" Golding review, that court has not expressly defined what form such an "affirmative request" must take.
See In re Jan Carlos D., 297 Conn. 16, 20 n. 10, 997 A.2d 471 (2010) (declining to review respondent's unpreserved claim of constitutional due process violation because Golding review not requested); In re Melody L., 290 Conn. 131, 167, 962 A.2d 81 (2009) (declining to review unpreserved constitutional claim for trial by jury in termination of parental rights case when appellant "merely asserts in one sentence that her claim is subject to Golding review without providing any analysis of the four prongs"); State v. McKenzie-Adams, 281 Conn. 486, 533 n. 23, 915 A.2d 822 (declining to review unpreserved constitutional claim when defendant failed to brief entitlement to Golding review in main brief), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007); Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (declining to review unpreserved claim of constitutional due process violation when "the petitioner makes only a passing reference to Golding for the first time in his reply brief and fails to brief his entitlement to Golding review").
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, 296 Conn. 397, 410-11, 994 A.2d 1248 (2010), leave the phrase "affirmative request for review" undefined.
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, 213 Conn. 239-40]." (Internal quotation marks omitted.) Immediately after these words, the court quotes Ramos as follows: "A party is obligated . . . affirmatively to request review under these doctrines. State v. Ramos, supra, 171. . . ." (Citation omitted; internal quotation marks omitted.) State v. Bowman, supra, 815. It would appear that the word "doctrines" relates to the plain error doctrine or the rule set forth in Golding. Furthermore, after stating that a party is obligated affirmatively to request review, the court, citing Waz, explains that "defendants 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. . . ." (Internal quotation marks omitted.) Id. The plain meaning of these words appears to equate "affirmatively" with establishing a right to review under the guidelines of Golding. Furthermore, if "affirmative" is equated with a specific reference to Golding or an explicit plea for review pursuant to Golding, I believe that the philosophy underlying the case would be compromised.
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 kudzu in our appellate system. Because of the ubiquitous presence of Golding review in our jurisprudence, it would be difficult for the state or the reviewing court to fail to perceive that such a review of an unpreserved constitutional issue is sought. If the defendant has provided an adequate record for review and has demonstrated through adequate briefing in his main brief that his unpreserved claim alleges a claim of constitutional magnitude, that is, the violation of a constitutional right, it is my belief that the defendant has alerted opposing counsel and the reviewing court sufficiently to be equated with and tantamount to a request for Golding review.
Kudzu (pueraria montana) is generally defined as a rapid growing vine, native to Japan and China, with dense foliage consisting of woody, hairy stems and large, compound leaves. Once established, kudzu plants grow rapidly, extending as much as sixty feet per season at a rate of about one foot per day. It is considered an invasive vine present in the southern and eastern portions of the United States. See United States Dept. of Agriculture, Forest Service, "Weed of the Week," October 12, 2004, available at http://na.fs.fed.us/fhp/invasive_plants/weeds/kudzu.pdf (last visited November 16, 2010).
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.) Id., 458. This court held in Wright: "[It is not] mandatory for a defendant to cite Golding to obtain review of an unpreserved claim of a constitutional deprivation at trial, [but] we do require that a defendant present a record that is adequate for review and affirmatively [demonstrate] that his claim is indeed a violation of a fundamental constitutional right." (Internal quotation marks omitted.) Id., 463.
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. 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. I do, however, concur in the result reached by the majority opinion for the reasons stated in State v. Elson, supra, 116 Conn. App. 240-46 ( Dupont, J., concurring in part).
The saga of Golding begins with Evans and is interspersed with many other decisions since Golding over the past twenty years, but the saga has not yet ended, and cannot end until our Supreme Court provides additional guidance.
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 unpreserved 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). Unlike the majority, however, I would reach the issue by invoking our supervisory power over the administration of justice in resolving the present appeal. And because I believe that the defendant's constitutional rights were violated, I would remand this case to the trial court for resentencing.
I am constrained to agree with the majority that the issue is unpreserved. I believe, however, that it would have been extraordinarily difficult and of no practical value under these particular circumstances for counsel to have interrupted the court during its sentencing comments in order to effect any change in the sentence imposed because the court's comments revealed that it had already formulated its view tying together the defendant's absence of remorse with his exercise of the fundamental right to a trial.
Although our Supreme Court has made it clear that Golding may not be invoked for the first time in a reply brief, the rationale behind those rulings is to prevent unfair surprise and to give the state the opportunity to fully respond to the defendant's claims. See State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997); State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). In each of those cases, however, as in the present case, the defendant briefed the constitutional issue in his main brief, and the state, properly and thoroughly, briefed both the reviewability issue and the merits of the constitutional issue, fairly putting the rationale for this line of cases into question.
I note, as does Judge Dupont, that the Golding opinion, itself, does not impose a procedural requirement that an appellant specifically request Golding-type review on appeal, but rather that any unpreserved constitutional claim, to be reviewable, must meet the requirements elucidated in Golding. However, as the majority has noted, our Supreme Court later added a gloss to Golding that an appellant's entitlement to Golding review must be argued in the main brief. Thus, although I find Judge Dupont's approach to the review of unpreserved constitutional claims completely sensible, I am bound to conclude, as does the majority, that we must follow the Supreme Court's gloss on Golding, which added procedural requirements for reviewability unstated in Golding itself.
It is noteworthy, in this regard, that in Johnson v. Commissioner of Correction, 288 Conn. 53, 951 A.2d 520 (2008), two justices concurred in the result while writing that they would have reviewed the defendant's unpreserved constitutional claim because the state was aware of the issue and had briefed and argued it, and the defendant made all of the same arguments he would have made if he had used the talismanic term Golding in his brief.
I believe that we should exercise our supervisory authority to review only the defendant's claim that the court improperly equated his exercise of his right to trial to his sense of remorse. I agree with the majority that the defendant's claim that the court impermissibly considered at sentencing the knife that was a full trial exhibit does not warrant extraordinary review.
"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 those 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 violation. Id., 503-504. Third, the Appellate Court had indicated in dictum that the challenged practice was permissible, which needed to be refuted by the Supreme Court, "lest it be construed by our trial judges as approval of a practice that violates principles of due process." Id., 504.
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 absence 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."
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.
The defendant claims that these comments reveal that the court improperly considered at sentencing his decision to go to trial as evidence of his lack of remorse and that his sentence was improperly elongated by this consideration. In response, the state argues that the court did not improperly consider the defendant's election to go to trial as a sentencing factor and that, even if the court did so, the defendant has not met the burden of persuasion enunciated by our Supreme Court in State v. Kelly, 256 Conn. 23, 770 A.2d 908 (2001), that the court's improper consideration did, in fact, elongate his sentence.
The defendant was convicted of assault in the first degree and unlawful restraint in the first degree. He was found not guilty of attempt to commit assault in the first degree. He was also charged, in a part B information, with the commission of these crimes while out on bond for unrelated charges. He was sentenced on the assault conviction to a period of incarceration of twenty-five years, suspended after twenty years. On the unlawful restraint conviction he received a concurrent five year sentence. The total effective sentence of twenty-five years suspended after twenty years incarceration represented an enhancement of five years due to the part B conviction. Because Connecticut does not have sentencing guidelines and, to my knowledge, the judicial branch does not maintain comparative sentencing statistics, one cannot say with any accuracy whether the substantial sentence received by the defendant is outside the norm.
Except in the most blatant case, I do not think that a defendant could ever demonstrate that the court actually lengthened a sentence because he or she elected a trial. Although decisional law is not uniform in this regard, some courts have taken the view that where the record is equivocal as to whether the sentencing court considered a defendant's decision to go to trial, the matter should be remanded for resentencing. For example, in United States v. Hutchings, 757 F.2d 11, 13 (2d Cir.), cert. denied, 472 U.S. 1031, 105 S. Ct. 3511, 87 L. Ed. 2d 640 (1985), resentencing was ordered where the court commented, after trial, that the trial had been a "total waste of public funds and resources . . . there was no defense in this case. This man was clearly and unquestionably guilty, and there should have been no trial." (Internal quotation marks omitted.) And in Johnson v. State, 679 So. 2d 831, 832 (Fla. App. 1996), the panel voted two to one for resentencing where the trial court stated during sentencing, "I will be very candid, what I see is an absolutely indefensible case by someone who has a felony record that stretches off into the distance, who had an indefensible case and put us through going through a whole trial, I guess so he could talk about it. When there was an offer on the table he decided to turn down. Now it's time to pay the piper." (Internal quotation marks omitted.)
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 Court: "Although some are prone to overlook it, an accused's right to trial by a jury of his fellow citizens when charged with a serious criminal offense is unquestionably one of his most valuable and well-established safeguards in this country." Green v. United States, 356 U.S. 165, 215, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958). Accordingly, it is impermissible to penalize a defendant for standing trial instead of pleading guilty. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort"). Because this right is a fundamental one, we must be particularly vigilant in circumstances in which the right may be in peril. One such circumstance may arise at sentencing. One court has commented, "courts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice." United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948, 93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973).
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.
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 rationale behind the principle is that the coercion or the inducement casts a chill over the exercise of guaranteed fundamental constitutional rights." Fermo v. State, 370 So. 2d 930, 932 (Miss. 1979). Many courts have a "per se" rule that it is impermissible to give this factor any weight at sentencing. For example, the Supreme Court of Iowa has concluded that "the fact a defendant has exercised the fundamental and constitutional right of requiring the state to prove at trial his guilt as charged and his right as an accused to raise defenses thereto is to be given no weight by the trial court in determining the sentence to be imposed after the defendant's guilt has been established." (Emphasis added.) State v. Nichols, 247 N.W.2d 249, 255 (Iowa 1976). Similarly, the Court of Appeals of Maryland, in reviewing a claim that the court may have given impermissible consideration to a defendant's exercise of his right to trial, stated that "[a]ny doubt in this regard must be resolved in favor of the defendant. Accordingly, our part in the administration of justice requires that we find that a consideration of [the defendant's] failure to plead guilty was impermissible because a price may not be exacted nor a penalty imposed for exercising the fundamental and constitutional right of requiring the [s]tate to prove, at trial, the guilt of the [defendant] as charged." Johnson v. State, 274 Md. 536, 543, 336 A.2d 113 (1975); see also State v. Hass, 268 N.W.2d 456, 463-65 (N.D. 1978); People v. Mosko, 190 Mich. App. 204, 211, 475 N.W.2d 866 (1991), aff'd, 441 Mich. 496, 495 N.W.2d 534 (1992).
In place of a "per se" test, our Supreme Court, in Kelly, adopted a more flexible "totality of 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 exercise of the right actually elongated the sentence. In Kelly, for example, the record reflected that the sentencing court commented that it took into consideration "whether or not there was a plea or a complete trial. . . ." (Internal quotation marks omitted.) Id., 80. On review, our Supreme Court found that the comments under scrutiny did not, by themselves, demonstrate that the court elongated the defendant's sentence because he elected to go to trial. Rather, the Supreme Court opined, the trial court's comments served only as a reminder to the defendant that the court could have shown leniency if the defendant had acknowledged guilt before the trial, but, instead, the defendant had forgone that opportunity in electing to go to trial. Id., 83-84.
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. In fairness, I believe it would be nearly impossible to prove, except in the most blatant of circumstances, that a court actually elongated a sentence because the defendant put the state to its proof. On the other hand, the trial record may often be adequate to demonstrate whether the court improperly considered a defendant's election as a factor at sentencing. Because I view the defendant's claims herein as more the latter than the former, I do not believe we are bound by the outcome determination approach fashioned by Kelly in response to the particular claim made in that case.
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 that the court impermissibly considered, as a factor, the defendant's exercise of a fundamental right as proof of lack of remorse, that factor alone sufficiently taints the sentencing process to warrant resentencing.
See, e.g., State v. Ambriez, 2004-Ohio-5230, Docket No. L-03-1051 (Ohio App., September 24, 2004) (where trial court stated that "`there's no genuine remorse, because we had to proceed to trial; and obviously with your statement there's no genuine remorse, all of which makes recidivism more likely, thus would tip the scales on the side of [a] prison term,'" Court of Appeals found that "the inference that [the] appellant's sentence was augmented because he chose to stand trial is unavoidable").
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 dangerous, and that he had little prospect for rehabilitation. . . . [T]hese conclusions properly may bear on sentencing." [Citation omitted.]). Given the significance of remorse as a sentencing factor, there is a heightened risk that the court's view of the defendant's decision to put the state to its proof was detrimental to the defendant at sentencing.
To guard against this risk, the United States Sentencing Guidelines Manual (2010) (Sentencing Manual) for federal courts has drawn a bright line between the exercise of rights and lack of remorse. The section titled "Acceptance of Responsibility" allows a downward adjustment for remorse. U.S.S.G. § 3E1.1. Although this downward adjustment is not available to defendants who denied their guilt at trial, and thereby did not accept responsibility; id., commentary (2); the Sentencing Manual emphatically states that the trial judge may not make an inverse upward adjustment: "This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than . . . perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. . . ."U.S.S.G. § 3C1.1, commentary (2).
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. In making this determination, I believe, the court impermissibly tainted the sentencing process, thereby entitling the defendant to be sentenced anew.
I am not insensitive to the trauma realized by victims who must often relive the experiences of criminal acts inflicted upon them. To give consideration to a defendant who pleads guilty and thus saves the victim from having to testify is a hallmark of our plea bargaining system. See, e.g., State v. Farnham, 479 A.2d 887, 892 (Me. 1984) ("[The] defendant and others on his behalf were perfectly justified in seeking leniency on the basis of his claimed repentance and remorse; but at the same time the sentencing justice could fully evaluate the sincerity of those claims only by considering [the] defendant's whole course of conduct. . . . Although [the] defendant had an absolute right to a trial . . . he cannot escape the fact that his exercise of those rights are probative of his attitude towards the victim and society.") State v. Tiernan, 645 A.2d 482, 487 (R.I. 1994) ("[i]n the face of [the] defendant's plea for leniency, the trial justice's consideration of [the] defendant's false testimony and the impact of the trial upon the victim was proper as these factors related to his prospects for rehabilitation"). But the coin is not exactly two-sided. In a just system, elongation of a sentence from the norm cannot be the flip side of leniency from the norm.
Ensuring the integrity of such a system is no simple task. Obviously, any chilling effect may be reduced if the trial court articulates the difference between denying leniency and increasing punishment. See, e.g., State v. Farnham, supra, 479 A.2d 890 (sentence upheld in Maine where trial court considered impact of trial on victim but clarified, "I do not punish people for having trials" [internal quotation marks omitted]). Some even more cautious appellate courts require an affirmative statement from the trial court to this effect. See, e.g., State v. Fritz, 178 Ohio App. 3d 65, 70, 896 N.E.2d 778 (2008) ("If an inference of sentencing impropriety exists . . . an appellate court must determine whether the record contains an unequivocal statement as to whether the decision to go to trial was not considered in fashioning the sentence. . . . Absent such an unequivocal statement, the sentence will be reversed and the matter remanded for resentencing." [Internal quotation marks omitted.]); State v. Fitzgibbon, 114 Or. App. 581, 587, 836 P.2d 154 (1992) ("[t]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty" [internal quotation marks omitted]). Still, the Court of Appeals of South Carolina recognizes that such disclaimers can be disingenuous. See State v. Brouwer, 346 S.C. 375, 388, 550 S.E.2d 915 (App. 2001) ("[a]lthough the court herein also stated it had never, and never would, `punish someone for exercising their right to a jury trial.' we believe the mere disavowal of wrongful intent cannot remove the taint inherent in the court's commentary, especially since the record fails to reflect an otherwise appropriate basis for [the defendant's] disparate sentence").
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 constitutional system, that result cannot be tolerated. Accordingly, I respectfully dissent from that portion of the majority opinion dealing with the sentencing claim. I would remand the matter for resentencing. In all other respects, I concur.