State v. Henderson ( 2014 )

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STATE OF CONNECTICUT v. MITCHELL
HENDERSON
(SC 19213)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
Vertefeuille, Js.
Argued March 26—officially released July 22, 2014
Heather Golias, assigned counsel, for the appellant
(defendant).
Emily L. Graner Sexton, special deputy assistant
state’s attorney, with whom, on the brief, were Gail
P. Hardy, state’s attorney, and Anne Mahoney, senior
assistant state’s attorney, for the appellee (state).
Opinion
ROGERS, C. J. After the trial court, Espinosa, J.,
imposed an enhanced sentence on the defendant, Mitch-
ell Henderson, as a persistent dangerous felony
offender and a persistent serious felony offender, pursu-
ant to General Statutes (Rev. to 1993) § 53a-40 (f) and
(g),1 the defendant filed a motion to correct an illegal
sentence claiming that he was constitutionally entitled
to have a jury make the finding required by that statute
that an enhanced sentence would be in the public inter-
est. The trial court, Gold, J., dismissed that motion. The
defendant then filed a second motion to correct an
illegal sentence claiming that Judge Espinosa had failed
to make the required finding. The trial court, Dewey,
J., denied the second motion on the ground that it raised
the same claim as the first motion and, therefore, was
barred by the doctrine of res judicata. The defendant
appeals2 from that judgment, contending that the claims
that he raised in his first and second motions to correct
an illegal sentence were not identical for purposes of
the doctrine of res judicata. We affirm Judge Dewey’s
judgment on the alternative ground that Judge Espinosa
actually found that imposing an enhanced sentence on
the defendant would best serve the public interest.
The record reveals the following undisputed facts
and procedural history. The defendant was convicted
in 1993, after a jury trial, of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (3),
attempt to escape from custody in violation of General
Statutes (Rev. to 1991) §§ 53a-171, 53a-168 (2) and 53a-
49, assault in the third degree in violation of General
Statutes (Rev. to 1991) § 53a-61 (a) (1), and threatening
in violation of General Statutes (Rev. to 1991) § 53a-62
(a) (1). The defendant pleaded guilty to criminal mis-
chief in the third degree in violation of General Statutes
(Rev. to 1991) § 53a-117 (a) (1) (A). In addition, the
defendant pleaded guilty to being a persistent danger-
ous felony offender in violation of § 53a-40 (a) and to
being a persistent serious felony offender in violation
of § 53a-40 (b).
At the defendant’s sentencing hearing, the prosecutor
argued that, in light of his extensive criminal back-
ground, the defendant had ‘‘become a predator upon
society’’ and that he was ‘‘a gross danger to society every
time he’s at liberty.’’ The prosecutor further argued that
‘‘we’ve reached a point where society cannot be put in
risk of this defendant any longer.’’3 Accordingly, the
prosecutor asked the trial court to impose an enhanced
sentence of forty-seven and one-half years imprison-
ment. Immediately after the prosecutor made these
statements, Judge Espinosa made remarks regarding
the defendant’s history and character and the nature
and circumstances of his criminal conduct and con-
cluded that, in light of his ‘‘serious’’ criminal history
and ‘‘troubling . . . tendency toward violence,’’ she
had ‘‘no alternative or much of an alternative but then
to impose a lengthy sentence of incarceration.’’4 Judge
Espinosa sentenced the defendant to an enhanced sen-
tence of forty-five years imprisonment, execution sus-
pended after thirty-five years, with five years of
probation, pursuant to § 53a-40 (f) and (g).
On December 9, 2008, the defendant filed his first
motion to correct an illegal sentence pursuant to Prac-
tice Book § 43-22,5 in which he contended that, pursuant
to this court’s decision in State v. Bell, 283 Conn. 748,
810, 931 A.2d 198 (2007),6 he was constitutionally enti-
tled to have a jury determine whether extended incar-
ceration would ‘‘serve the public interest’’ for purposes
of § 53a-40 (f) and (g).7 The trial court, Gold, J., dis-
missed the motion for lack of subject matter jurisdic-
tion, reasoning that ‘‘the sentencing court did not
impose an illegal sentence or impose a sentence in
an illegal manner; accordingly, it lacked jurisdiction
because the defendant’s motion fell outside of the pur-
view of Practice Book § 43-22.’’ State v. Henderson, 130
Conn. App. 435, 440, 24 A.3d 35 (2011).8 The defendant
appealed from the judgment of dismissal to the Appel-
late Court, which concluded that the trial court improp-
erly had determined that it lacked subject matter
jurisdiction. Id., 446. The Appellate Court also con-
cluded, however, that the defendant’s motion should
be denied because Bell did not apply retroactively, and
that the defendant’s motion failed on its merits. Id., 448.
After the Appellate Court issued its decision, the
defendant filed his second motion to correct an illegal
sentence in which he contended that Judge Espinosa
had failed to make the required finding pursuant to
§ 53a-40 (f) and (g) that an enhanced sentence would
‘‘best serve the public interest . . . .’’9 At a hearing on
that motion before the trial court, Schuman, J., the
defendant indicated that he wanted to withdraw the
motion and submit another one with the assistance
of an attorney. Judge Schuman agreed to adjourn the
hearing and allow the defendant to apply for the ser-
vices of a public defender. Thereafter, the defendant,
represented by counsel, filed a substitute motion mak-
ing the same claim. On May 10, 2012, the trial court,
Dewey, J., rendered judgment denying the motion.
Judge Dewey concluded, sua sponte, that the defen-
dant’s claim was barred by the doctrine of res judicata
because it was identical to the claim that he had raised
in his first motion to correct an illegal sentence.
This appeal followed. The defendant claims that
Judge Dewey improperly determined that his second
motion to correct an illegal sentence was barred by the
doctrine of res judicata because the claim that he raised
in that motion was distinct from the claim that he raised
in his first motion. The state contends that, to the con-
trary, the claims were identical. The state also claims
that Judge Dewey’s judgment may be affirmed on the
alternative ground that the defendant waived his claim
that Judge Espinosa had failed to make a public interest
finding when the defendant judicially admitted that
Judge Espinosa had made such a finding in his first
motion to correct. Specifically, the state points out that
the defendant stated in his first motion to correct an
illegal sentence that ‘‘Judge Espinosa, as part of the
sentencing of the defendant and pursuant to [§ 53a-40
(f) and (g)], concluded that the defendant’s ‘history and
character and the nature and circumstances of [the
defendant’s] criminal conduct indicate that extended
incarceration and lifetime supervision will best serve
the public interest.’ ’’
After oral argument, this court ordered the parties to
submit supplemental briefs on the question of whether
Judge Espinosa had ‘‘made a finding, pursuant to . . .
§ 53a-40 (f) and (g), that the defendant’s ‘history and
character and the nature and circumstances of his crimi-
nal conduct indicate that extended incarceration will
best serve the public interest . . . .’ ’’ The parties were
also ordered to address the question of whether, if this
court were to conclude that Judge Espinosa had made
the required finding, this court could affirm Judge Dew-
ey’s judgment denying the defendant’s motion to correct
an illegal sentence on this alternative ground even
though the state had not distinctly raised that claim on
appeal to this court.10 We conclude that the judgment
of the trial court should be affirmed on the alternative
ground that Judge Espinosa made the requisite public
interest finding.
We first address the question of whether this court
may raise, sua sponte, the question of whether Judge
Dewey’s judgment denying the defendant’s motion to
correct may be affirmed on the alternative ground that
Judge Espinosa made the required public interest find-
ing. This court has held that, when an appellant would
not be entitled to a directed judgment upon prevailing
on the claim raised on appeal, the reviewing court may
raise, sua sponte, an alternative ground for affirmance
that would be likely to arise on remand. Blumberg Asso-
ciates Worldwide, Inc. v. Brown & Brown of Connecti-
cut, Inc., 311 Conn. 123, 166, 84 A.3d 840 (2014) (citing
interests of judicial economy). In the present case, if
the defendant were to prevail on his claim that Judge
Dewey improperly denied his motion to correct an ille-
gal sentence on res judicata grounds, this court would
remand the case to the trial court for consideration of
the merits of the motion. In that event, the state would
be entitled to, and likely would, claim on remand that
the motion should be denied because Judge Espinosa
in fact made the public interest finding, as the state
already had made that claim in its memorandum of law
in opposition to the defendant’s motion to correct. In
addition, the record is adequate for consideration of
the issue and the defendant has identified no specific
prejudice that he will suffer if we consider it.11 Accord-
ingly, we conclude that we may address this alternative
ground for affirmance even though the state did not
distinctly raise it on appeal.
We conclude that Judge Espinosa in fact found that
the defendant’s ‘‘history and character and the nature
and circumstances of his criminal conduct indicate that
extended incarceration and lifetime supervision will
best serve the public interest . . . .’’ General Statutes
(Rev. to 1993) § 53a-40 (f); see General Statutes (Rev.
to 1993) § 53a-40 (g). As the state points out, whether
the defendant should receive an enhanced sentence
pursuant to § 53a-40 (f) and (g) was the only question
that was before Judge Espinosa at the sentencing hear-
ing. After the prosecutor argued for an enhanced sen-
tence on the basis of the defendant’s history and
character and the nature and circumstances of his crimi-
nal conduct, Judge Espinosa concluded that, in light
of the defendant’s ‘‘serious’’ criminal history and his
‘‘troubling . . . tendency toward violence,’’ she had no
alternative but to impose a lengthy sentence pursuant
to § 53a-40 (f) and (g). Although Judge Espinosa did
not expressly state that she was of the opinion that the
defendant’s serious and violent criminal history indi-
cated that extended incarceration would ‘‘best serve
the public interest,’’ this court has never required the
talismanic recital of specific words or phrases if a
review of the entire record supports the conclusion that
the trial court properly applied the law. See, e.g., State
v. Robinson, 227 Conn. 711, 731, 631 A.2d 288 (1993)
(‘‘[t]he fact that the trial court did not utter the talis-
manic words that the evidence was ‘more probative
than prejudicial’ does not indicate that it did not make
such a determination’’); see also State v. Elson, 311
Conn. 726, 752–53, A.3d (2014) (noting ‘‘this
court’s refusal in a variety of contexts to attach talis-
manic significance to the presence or absence of partic-
ular words or phrases’’ [internal quotation marks
omitted]). Rather, this court presumes that the trial
court properly applied the law in the absence of evi-
dence to the contrary. See Blumenthal v. Kimber Mfg.,
Inc., 265 Conn. 1, 9, 826 A.2d 1088 (2003) (‘‘the trial
court is presumed to have applied the law correctly,
and it is the burden of the appellant to show to the
contrary’’ [internal quotation marks omitted]). More-
over, regardless of whether the defendant’s statement
in his first motion to correct that Judge Espinosa had
made the public interest finding was a binding judicial
admission, as the state claims, the fact that he made that
statement supports our conclusion that such a finding
reasonably may be inferred from the record. Accord-
ingly, we conclude that it is implicit in Judge Espinosa’s
remarks regarding the defendant’s serious and violent
criminal history, and in her statement that she had no
alternative but to impose a lengthy sentence, that she
found that an enhanced sentence would best serve the
public interest.
In support of his claim to the contrary, the defendant
relies on the Appellate Court’s decisions in State v.
Kokkinakos, 143 Conn. App. 76, 66 A.3d 936 (2013), and
State v. Reynolds, 126 Conn. App. 291, 11 A.3d 198
(2011).12 In Reynolds, the Appellate Court held that,
under this court’s decision in State v. Bell, supra, 283
Conn. 812, when a defendant has pleaded guilty to being
a persistent serious felony offender, the trial court must
make the determination that an enhanced sentence will
best serve the public interest. State v. Reynolds, supra,
311–12. Because the state conceded in Reynolds that
the trial court had not made the requisite finding, the
Appellate Court held that the case had to be remanded
to the trial court so that it could make the finding. Id.,
312. In State v. Kokkinakos, supra, 78–79, the defendant
pleaded guilty to being a persistent felony offender. The
state contended that the trial court was not required
to make a public interest finding because, by pleading
guilty to the charge, the defendant had implicitly ‘‘admit-
ted to a finding that an enhanced sentence would be in
the public interest.’’ Id., 86. The Appellate Court rejected
this claim, holding that, under Reynolds, ‘‘there are two
ways in which the public interest factor can be satisfied
in the context of a guilty plea. The court can make an
express finding, or the defendant can expressly agree
to the determination.’’ Id., 87. Because neither of those
events had occurred, the Appellate Court held that the
case had to be remanded to the trial court to make a
public interest finding or for the defendant to acknowl-
edge that an enhanced sentence would best serve the
public interest. Id., 87–88.
We conclude that the defendant’s reliance on Rey-
nolds and Kokkinakos is misplaced. In both of those
cases, there was no dispute that the trial court had
failed to make the required public interest finding. Thus,
in both cases, the issue before the Appellate Court was
whether the trial court is required to make such a find-
ing when the defendant has pleaded guilty to being a
persistent felony offender, and not whether a public
interest finding can be inferred from the record even
though the trial court has not talismanically recited the
statutory language.13 For the reasons that we previously
have explained herein, we conclude that a recital of
the statutory language is not required. Accordingly, we
affirm Judge Dewey’s judgment denying the defendant’s
motion to correct an illegal sentence on the alternative
ground that Judge Espinosa made the necessary finding
that imposing an enhanced sentence on the defendant
would best serve the public interest, as required by
§ 53a-40 (f) and (g).
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes (Rev. to 1993) § 53a-40 provides in relevant part: ‘‘(a)
A persistent dangerous felony offender is a person who (1) stands convicted
of manslaughter, arson, kidnapping, sexual assault in the first or third degree,
aggravated sexual assault in the first degree, sexual assault in the third
degree with a firearm, robbery in the first or second degree, or assault in
the first degree, and (2) has been, prior to the commission of the present
crime, convicted of and imprisoned under a sentence to a term of imprison-
ment of more than one year or of death, in this state or in any other state
or in a federal correctional institution, for any of the following crimes: (A)
The crimes enumerated in subdivision (1) of this subsection, murder, or an
attempt to commit any of said crimes or murder; or (B) prior to October
1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78
of the general statutes, revision of 1958, revised to 1975, or prior to October
1, 1971, in this state, assault with intent to kill under section 54-117, or any
of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16,
inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86,
53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968,
or any predecessor statutes in this state, or an attempt to commit any of
said crimes; or (C) in any other state, any crimes the essential elements of
which are substantially the same as any of the crimes enumerated in subdivi-
sion (1) or (2) of this subsection.
‘‘(b) A persistent serious felony offender is a person who (1) stands
convicted of a felony, and (2) has been, prior to the commission of the
present felony, convicted of and imprisoned under an imposed term of more
than one year or of death, in this state or in any other state or in a federal
correctional institution, for a crime. This subsection shall not apply where
the present conviction is for a crime enumerated in subdivision (1) of
subsection (a) of this section and the prior conviction was for a crime other
than those enumerated in subsection (a) of this section. . . .
‘‘(f) When any person has been found to be a persistent dangerous felony
offender, and the court is of the opinion that his history and character and
the nature and circumstances of his criminal conduct indicate that extended
incarceration and lifetime supervision will best serve the public interest,
the court, in lieu of imposing the sentence of imprisonment authorized by
section 53a-35 for the crime of which such person presently stands convicted,
or authorized by section 53a-35a if the crime of which such person presently
stands convicted was committed on or after July 1, 1981, may impose the
sentence of imprisonment authorized by said section for a class A felony.
‘‘(g) When any person has been found to be a persistent serious felony
offender, and the court is of the opinion that his history and character and
the nature and circumstances of his criminal conduct indicate that extended
incarceration will best serve the public interest, the court in lieu of imposing
the sentence of imprisonment authorized by section 53a-35 for the crime
of which such person presently stands convicted, or authorized by section
53a-35a if the crime of which such person presently stands convicted was
committed on or after July 1, 1981, may impose the sentence of imprisonment
authorized by said section for the next more serious degree of felony. . . .’’
All references in this opinion to § 53a-40 are to the 1993 revision of
the statute.
2
The defendant appealed from the trial court’s judgment denying his
second motion to correct an illegal sentence to the Appellate Court and we
transferred the appeal to this court pursuant to Practice Book § 65-1 and
General Statutes § 51-199 (c).
3
In addition, the prosecutor argued: ‘‘[T]he defendant comes before this
court with an extensive past criminal record. He has a record of twenty-
two past convictions; ten felonies, twelve for misdemeanors. Of those prior
convictions, eleven involve weapons and violence, threat of violence or
some type of restraint. There are five prior robbery convictions, one prior
escape conviction. There’s a continuing pattern of criminal conduct which
goes back to 1976 . . . [that] [i]ncludes the same acts and the same types
of acts and the same modus operandi. The defendant has been sentenced
on a number of occasions and those sentences have not deterred [him
from] engaging in continued criminal activity. By my count, since 1976, the
defendant has been free and clear of the Department of Correction for only
approximately thirty-five months. He has been sentenced on those robberies
in the past. He received substantial jail sentences and it’s failed to deter him.
‘‘I note he has five prior robbery convictions and there’s a similarity in
many of those cases to this case. I would note that in three of the prior
cases there has been a use of weapons, as in this case. Two of the prior
cases involved the use of a knife. Two other prior occasions, the victim
suffered injuries. I note that in one of his prior robberies, he committed
that offense while either on supervised home release or on parole and finally,
in two of the prior cases, the defendant either escaped or attempted to flee
to avoid capture.
‘‘And going to those particular incidents which I have set forth in my
memoranda, he has a robbery third from 1980 in which the victim suffered
a serious physical injury. [In] 1981, robbery first degree and carrying a
dangerous weapon in which he was armed with a knife. Another robbery
in the first degree . . . which is a 1981 conviction at which time he was
armed with a pellet gun. He was involved in a substantial car chase with
various police departments, involved running a roadblock almost injuring
officers from the Enfield Police Department and was finally apprehended
after he crashed the car in the Commonwealth of Massachusetts.
‘‘He has another 1981 conviction for robbery third degree and assault in
the second degree in which he robbed an individual while being held at the
old Morgan Street lockup.
‘‘And finally, he has a 1987 robbery first degree conviction from the town
of East Hartford in which he committed this offense while armed with a
knife. He fled from the officers and had to be captured. He had just been
released on parole three days previously and after his arraignment at [geo-
graphical area number twelve], he escaped from the sheriff’s van and wasn’t
recaptured for a number of months.
‘‘And the instant case, the defendant, while armed with a knife, attempted
to kill his victim—threatened to kill the victim—pardon me. He grabbed
the victim, physically handled her. He attempted to escape from the police
car and caused substantial damage to it. At the time of this offense, he was
again on supervised home release and had only been released three months
prior to this offense.
‘‘This defendant is an out-and-out recidivist. His record makes it obvious.
He continues to be committed to the pursuit of violent crime.
‘‘Now, [the defendant] is not an unintelligent person. He is extremely
intelligent and articulate as he showed by defending himself in this trial.
This behavior is a commitment by this defendant to this type of activity
and I would respectfully submit to the court that [the defendant] is not a
person who’s going to be rehabilitated. The only option I believe that’s
available to this court to protect society is by incarcerating this defendant
for as long a period as possible and this is not something that I would
recommend rashly or ask the court to adopt rashly, but this is a gentleman
who, if he continues this behavior, is eventually going to kill someone and
it’s only by the grace of God that he hasn’t already.
‘‘It’s time that this defendant be placed somewhere where he won’t hurt
anyone. Therefore, the state will recommend, on the count of robbery in
the first degree as a persistent dangerous felony offender, a sentence of
twenty-five years to serve. On the count of criminal attempt to escape from
custody, as a persistent serious felony offender, a sentence of twenty years
to serve. On the counts of assault in the third degree, threatening, a sentence
of one year to serve on each and on the count of criminal mischief in the
third degree, to which the defendant entered a guilty plea, a [sentence] of
six months to serve. I would ask that all of those sentences run consecutively
for a total effective sentence of forty-seven and one-half years to serve,
Your Honor.’’
4
Judge Espinosa addressed the defendant, stating: ‘‘All right. . . . [Y]ou
are a puzzlement, to say the least. You conducted yourself very capably
during the trial of your case. Anyone who spends any limited time with you
realizes that you are an intelligent person. You are articulate. You have an
ability to communicate, which should have served you well in other pursuits.
‘‘Unfortunately, you’ve displayed all of these positive characteristics in a
courtroom as a defendant rather than on the outside helping yourself and
helping your family. As I said, you’re a wonderment and a curiosity because
someone of your potential and your ability doesn’t have to be here. I cannot
understand why you’re here given your background, given your noncrimi-
nal background.
‘‘Then we get to your criminal background. Your criminal history is very
serious and most troubling is your tendency toward violence.
‘‘You claim that you have a serious drug problem and I don’t doubt that
you use drugs. I find it interesting that although you say you have such a
serious drug problem, you’ve only one conviction for drugs and that was
in 1979, possession of drugs, six months. But after that time, you have no
convictions for drugs, which is different than we see with someone with a
serious drug problem. Usually, the convictions associated with serious drug
offenders tend to be associated with drugs. Yours [are] not. Your background
is that of independent crimes, at least convictions, and violent crimes and
repeat crimes—robberies, robberies with dangerous instruments, threats to
kill people. And we have here on a scale your good parts—your good aspects
and then on the other side, you have all of these crimes that, it’s the court’s
opinion, that really are not necessary.
‘‘You came from a good family. You have a wife whom I commend for
her loyalty. Her love for you must be something so profound that it has
maintained her on your side in spite of the pain that I’m sure you’ve caused
her. She was here with you during the trial. She spoke on your behalf. She
is an upstanding citizen of the community and you had this woman by your
side to help you and she couldn’t do anything.
‘‘Now, both she and your pastor are asking the court to finally do something
about your drug problem. You’ve been on probation before and you’ve never
asked, apparently—it’s never been made a condition of your probation that
you get drug treatment but you’ve had plenty of opportunity to stay away
from drugs. You’ve had times when you were in jail and you came out, you
weren’t addicted to drugs. But you went back to it. At least, physically
addicted. I understand that there is a psychological addiction, as well, that
may have led you to some of these acts but you could have asked for help
earlier and you didn’t.
‘‘So, really, at this point in your life, having received all of the chances
that you’ve received, the court really has no alternative or much of an
alternative but then to impose a lengthy sentence of incarceration.’’
5
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
6
This court held in State v. Bell, supra, 283 Conn. 810, that § 53a-40 (h),
which in 1993 was codified as subsection (f), was ‘‘unconstitutional, to the
extent that it does not provide that a defendant is entitled to have the
jury make a required finding [that] expose[s] the defendant to a greater
punishment than that authorized by the jury’s guilty verdict.’’ (Internal quota-
tion marks omitted.)
7
The defendant previously had filed a direct appeal from the judgment
of conviction and two petitions for writs of habeas corpus that are not at
issue in this appeal. See Henderson v. Commissioner of Correction, 104
Conn. App. 557, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d
470 (2008); Henderson v. Commissioner of Correction, 66 Conn. App. 868,
786 A.2d 450 (2001); State v. Henderson, 37 Conn. App. 733, 658 A.2d 585,
cert. denied, 234 Conn. 912, 660 A.2d 355 (1995).
8
On October 4, 2011, this court granted the defendant’s petition for certifi-
cation to appeal from the Appellate Court’s decision in State v. Henderson,
supra, 130 Conn. App. 435. State v. Henderson, 302 Conn. 938, 28 A.3d 992
(2011). On June 4, 2013, this court dismissed the certified appeal on the
ground that certification had been improvidently granted. State v. Hender-
son, 308 Conn. 702, 706, 66 A.3d 847 (2013).
9
This court held in State v. Bell, supra, 283 Conn. 802, that, under the
clear language of the statute, ‘‘the public interest determination is . . .
an ultimate factual predicate to the imposition of a mandatory enhanced
sentence’’ that must be made by the trial court. Because the court’s decision
in Bell that this aspect of the statute is unconstitutional does not apply
retroactively, the statute is applied to the defendant in the present case
according to its express terms. See State v. Henderson, supra, 130 Conn.
App. 448.
10
In its supplemental brief, the state contends that this issue is encom-
passed by the claim that it made in its original brief to this court that the
defendant had judicially admitted in his first motion to correct an illegal
sentence that Judge Espinosa made the public interest finding. We disagree.
In its original brief, the state pointed out that it had argued to the trial
court that Judge Espinosa had made the required factual finding, but, aside
from one footnote quoting one sentence from Judge Espinosa’s remarks at
the sentencing hearing, the state provided this court with no citations to
the record and no legal analysis in support of that claim. Rather, the state
relied solely on the defendant’s statement in his first motion to correct that
Judge Espinosa had made the public interest finding and on this court’s
cases governing judicial admissions.
11
In his supplemental brief, the defendant states conclusorily that he will
suffer prejudice because the state did not raise this claim in its brief to this
court. We disagree. If the prejudice inherent in reviewing an alternative
ground for affirmance that was not raised by the appellee on appeal were
always sufficient reason, in and of itself, to refuse to consider such issues,
no such issue could ever be considered.
12
The statute at issue in both Reynolds and Kokkinakos was General
Statutes (Rev. to 2007) § 53a-40 (j). The pertinent language of that statute
is the same as the relevant language of General Statutes (Rev. to 1993)
§ 53a-40 (f) and (g).
13
To the extent that the Appellate Court’s holding in State v. Kokkinakos,
supra, 143 Conn. App. 87, that the trial court must make an ‘‘express finding’’
means that the trial court must actually consider a defendant’s history and
character and the nature and circumstances of his criminal conduct before
imposing an enhanced sentence, and cannot assume that the defendant
agreed to an enhanced sentence by pleading guilty, the state does not chal-
lenge that holding in the present case. To the extent that the Appellate
Court concluded that the trial court must talismanically recite the relevant
statutory language, however, any such holding is hereby overruled. We
emphasize, however, that it would be preferable for the trial court to recite
the statutory language in order to remove all doubt as to whether it made
the finding.