State v. McCoy , 331 Conn. 561 ( 2019 )

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STATE v. MCCOY—CONCURRENCE AND DISSENT
D’AURIA, J., with whom, PALMER and McDONALD,
Js., join, concurring in part and dissenting in part. A
jury found the defendant, Kenneth Lee McCoy, guilty
of murder. The defendant filed a motion for a new trial
within the time prescribed by Practice Book § 42-54,
raising grounds that the trial court described as ‘‘color-
able . . . .’’ The court scheduled its consideration of
the motion for the same day as the defendant’s sentenc-
ing. Upon beginning to hear argument on the motion,
however, the court determined that a trial transcript
was necessary and, therefore, continued the hearing on
the motion to allow for the transcript’s preparation and
for the state to file a brief. Both parties consented.
However, to avoid inconveniencing the victim’s fam-
ily, which was in court that day, the trial court con-
ducted the defendant’s sentencing proceeding. This, in
the words of the Appellate Court, was a ‘‘collective
mistake’’; State v. McCoy, 171 Conn. App. 311, 328 n.6,
157 A.3d 97 (2017); because it implicated the rule that
‘‘the trial court loses jurisdiction upon sentencing
. . . .’’ (Citations omitted.) Id., 327. The import of this
rule was not raised until the state, with a further exten-
sion of time, filed its brief opposing the defendant’s
motion for a new trial. Upon discovering this collective
mistake, the trial court agreed with the state that it
lacked jurisdiction to rule on the motion and denied it.
Like the Appellate Court, the majority today con-
cludes that nothing can be done about what it concedes
was an ‘‘unintentional’’ or ‘‘inadvertent’’ loss of jurisdic-
tion over a timely filed motion for a new trial. I find
the court’s application of this rule in the present case
to prevent a ruling on the defendant’s motion so illogical
that I cannot believe our law compels this result. In
fact, it does not. Rather, there are in my view exceptions
to this rule that permitted—in fact, required—the trial
court to retain jurisdiction over the defendant’s motion
for a new trial, which was timely filed prior to sentenc-
ing. These exceptions fall within the scope of our
existing case law. To the extent that they do not, I
believe that under this court’s inherent authority to
develop the common law, this court should adopt a
sensible exception to avoid such an illogical result.
Finally, even in the absence of any exception, I would
conclude that it was plain error for the trial court not
to have ruled on the motion for a new trial before
sentencing, and I would reverse the judgment of the
Appellate Court and remand the case to that court with
direction to remand the case to the trial court with
direction to rule on that motion—a simple solution that
I cannot fathom our law does not permit. I therefore
respectfully dissent.1
I
This court has articulated the rule at issue in the
present case in this way: ‘‘It is well established that
under the common law a trial court has the discretion-
ary power to modify or vacate a criminal judgment
before the sentence has been executed . . . [but] the
court loses jurisdiction over the case when the defen-
dant is committed to the custody of the commissioner of
correction and begins serving the sentence.’’ (Citations
omitted.) State v. Luzietti, 230 Conn. 427, 431–32, 646
A.2d 85 (1994). The parties and the majority take it as
a given that this rule, which the trial court concluded
prevented it from ruling on the defendant’s timely filed
motion for a new trial, implicates the trial court’s subject
matter jurisdiction. Although our case law is not clear
that this rule implicates subject matter jurisdiction, for
purposes of this discussion I will not quarrel with
that proposition.2
Most of our case law concerning the subject matter
jurisdiction of the courts concerns the interpretation
of statutes, i.e., whether the legislature has conferred
jurisdiction on the courts or limited the jurisdiction of
the courts. When a statute seeks to create or expand
the court’s jurisdiction, we narrowly construe the stat-
ute. See Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d
37 (2003) (statute that creates cause of action that was
not available at common law is strictly construed); H-
K Properties, LLC v. Planning & Zoning Commission,
165 Conn. App. 488, 500, 139 A.3d 787 (‘‘to substantially
expand appellate jurisdiction, we must construe the
statute strictly in accordance with its terms’’), cert.
granted on other grounds, 322 Conn. 902, 138 A.3d 932
(2016) (appeal withdrawn August 5, 2016). When a stat-
ute seeks to limit the court’s common-law jurisdiction,
however, we strictly construe that statute as well so as
to limit jurisdiction only to the extent expressly and
explicitly stated by the legislature. See Sastrom v. Psy-
chiatric Security Review Board, 291 Conn. 307, 324–25,
968 A.2d 396 (2009) (explaining that legislature knows
how to expressly limit scope of jurisdiction and if no
intent to limit is expressed, then statute does not divest
court of jurisdiction). This latter rule of construction
is consistent with the general rule that the court’s com-
mon-law general jurisdiction is broad and that ‘‘there
is a strong presumption in favor of jurisdiction . . . .’’
(Citations omitted.) State v. Ramos, 306 Conn. 125, 134–
35, 49 A.3d 197 (2012). If we interpret a court’s statutory
jurisdiction too broadly or too narrowly, the legislature
can direct the judiciary differently. See Hall v. Gilbert &
Bennett Mfg. Co., 241 Conn. 282, 297, 695 A.2d 1051
(1997) (‘‘the legislature [may instruct] us that we have
misconstrued its intentions’’ [internal quotation marks
omitted]).
The rule under consideration in the present case,
however, does not implicate the legislative creation,
exclusion, or limitation of the court’s jurisdiction—sub-
ject matter or otherwise. Rather, as the majority
acknowledges, we grapple with a principle of common-
law jurisdiction, and specifically, a rule concerning
when a court loses common-law jurisdiction it indisput-
ably had—here, the jurisdiction to rule on a timely filed
posttrial motion for a new trial, a motion which derives
from the common law. See Zaleski v. Clark, 45 Conn.
397, 404 (1877). In a situation such as this, it is the
courts that define the contours of their common-law
jurisdiction over a common-law motion, not the legisla-
ture. See State v. Parker, 295 Conn. 825, 834, 992 A.2d
1103 (2010) (‘‘The Superior Court is a constitutional
court of general jurisdiction. . . . In the absence of
statutory or constitutional provisions, the limits of its
jurisdiction are delineated by the common law.’’ [Inter-
nal quotation marks omitted.]). Therefore, the contours
of this jurisdictional rule are defined by the decisions
of this court, based on experience and sensibility, rather
than by a mechanical application of rules without rea-
son. See O. Holmes, The Common Law (P. Pereira &
D. Beltran eds., 2011) p. 5 (‘‘The life of the law has not
been logic: it has been experience. . . . The law . . .
cannot be dealt with as if it contained only the axioms
and corollaries of a book of mathematics.’’).3
As is obvious from our most recent case law, this
court has struggled with defining the sensible contours
of this common-law jurisdictional rule. Any rule, how-
ever, must account generally for the ‘‘strong presump-
tion in favor of jurisdiction’’; State v. Ramos, supra, 306
Conn. 133–35;4 and specifically for the courts’ broad
common-law jurisdiction to preside over criminal cases.
State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992)
(‘‘[t]he Superior Court hearing a criminal matter
acquires subject matter jurisdiction from its authority
as a constitutional court of unlimited jurisdiction’’
[internal quotation marks omitted]). Also as a general
principle, the court has the inherent authority to modify
its own judgments. See State v. Dayton, 176 Conn. App.
858, 871 n.13, 171 A.3d 482 (2017) (‘‘[o]ur courts have
inherent power to open, correct and modify judgments’’
[internal quotation marks omitted]). Historically, this
includes the authority to grant a motion for a new trial,
which is a ‘‘common law power [that] the courts . . .
have the right to exercise in such a manner as shall best
promote justice.’’ Zaleski v. Clark, supra, 45 Conn. 404.
In State v. Wilson, 199 Conn. 417, 436–38, 513 A.2d
620 (1986), this court ruled that the trial court was
without jurisdiction to modify or correct a judgment,
in other than clerical respects, three years after the
defendant’s sentence. In determining the outside limits
of the timing by which a trial court could modify a
judgment, we recognized that ‘‘[n]either our General
Statutes nor our Practice Book rules define the period
during which a trial court may modify or correct its
judgment in a criminal case. On the civil side, however,
Practice Book § [17-4] provides that any civil judgment
or decree may be opened or set aside ‘within four
months succeeding the date on which [notice] was
[sent].’ ’’ (Emphasis omitted.) Id., 437. We therefore bor-
rowed this four month rule and extended it to judgments
in criminal cases, explaining that there was ‘‘no reason
to distinguish between civil and criminal judgments in
this respect, and we therefore hold that, for purposes
of the common law rule, a criminal judgment may not
be modified in matters of substance beyond a period
of four months after the judgment has become final.’’
Id. We concluded, however, in Wilson, that even with
an extension of the four month rule, the trial court
clearly had exceeded its jurisdiction by attempting to
amend the judgment three years after sentencing. Id.
Subsequently, in State v. Luzietti, supra, 230 Conn.
427, without overruling or even discussing Wilson, this
court held that in criminal cases, ‘‘once judgment has
been rendered and the defendant has begun serving the
sentence imposed, the trial court lacks jurisdiction to
modify its judgment in the absence of a legislative or
constitutional grant of continuing jurisdiction.’’ Id., 431.
In Luzietti, the defendant’s sentence had been stayed
pending the disposition of his motion for a judgment
of acquittal. Id., 429. The trial court denied the motion
and the defendant began serving his sentence. Id. Six
weeks after he had begun serving his sentence, the
defendant filed a motion to reargue the motion for a
judgment of acquittal, which the trial court granted and
then held a hearing. Id., 429–30. At the hearing, the state
argued that the trial court could not grant the motion
for a judgment of acquittal because it did not have
jurisdiction to vacate the judgment of conviction after
the defendant began serving his sentence. Id., 430. The
trial court disagreed and granted the motion. Id. The
state appealed to the Appellate Court, which held that
the trial court lacked jurisdiction to grant the defen-
dant’s motion for a judgment of acquittal because it
could not modify the judgment after the defendant had
begun serving his sentence. Id. In affirming the judg-
ment of the Appellate Court, this court relied on the
rule that ‘‘the [trial] court loses jurisdiction over the
case when the defendant is committed to the custody
of the commissioner of correction and begins serving
the sentence,’’ absent a statutory or constitutional grant
of jurisdiction. Id., 432.
Then, in State v. Myers, 242 Conn. 125, 698 A.2d 823
(1997), without even mentioning the common-law rule
at issue, this court held that the trial court retained
jurisdiction to rule on a motion for a new trial filed
before sentencing but considered and ruled on after
sentencing. Id., 136. In Myers, prior to sentencing, the
defendant had filed a motion for a new trial on the
ground of juror bias. Id., 129. Before ruling on the
motion, the trial court sentenced the defendant without
staying the sentence. Id., 131. Approximately five
months later, the trial court granted the motion for a
new trial; id.; but later vacated its order, determining
that it could not rule on the motion after the defendant
had been sentenced and that the juror bias claim should
have been raised in a petition for a new trial, not in a
motion for a new trial. Id., 136. Citing to Wilson, but
without more, this court reversed the judgment of the
trial court, explaining that ‘‘the trial court retained juris-
diction to entertain the motion for a new trial after
sentencing because it could have opened the judgment.’’
(Footnote omitted.) Id.
Consistent with our existing case law, there are in
my view at least two paths to concluding that the trial
court in the present case did not lack jurisdiction over
the defendant’s timely filed motion for a new trial: (1)
because our holdings in Wilson and Myers permit the
trial court to hear and rule on a timely new trial motion
filed before sentencing or (2) because the exception
for mutual mistake applicable in civil cases should apply
in this case.5 At any rate, I have heard no compelling
argument that should prevent this court from devel-
oping or modifying this common-law rule, which we
have the inherent power to do, to recognize an excep-
tion to the general axiom for timely motions for a new
trial filed before sentencing.
A
There is no dispute that the trial court in the present
case originally had jurisdiction to decide the motion
for a new trial: ‘‘The Superior Court hearing a criminal
matter acquires subject matter jurisdiction from its
authority as a constitutional court of unlimited jurisdic-
tion. . . . The Superior Court’s authority in a criminal
case becomes established by the proper presentment
of the information . . . which is essential to initiate a
criminal proceeding. . . . [U]pon the return to the
Superior Court of the indictment [or information]
against the accused, it obtained the sole and original
jurisdiction of the charge therein made . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Carey, supra, 222 Conn. 305–306; see State v. Ramos,
supra, 306 Conn. 133–34 (‘‘‘The Superior Court is a
constitutional court of general jurisdiction. In the
absence of statutory or constitutional provisions, the
limits of its jurisdiction are delineated by the common
law.’ ’’). Thus, this case does not in my view require
us to expand the court’s jurisdiction, as the majority
suggests. Rather, the question is whether the court inal-
terably lost jurisdiction it unquestionably had, pre-
venting it from ruling on the timely filed motion.
The rule at issue is the product of common law; it is
a common-law exception to the court’s inherent author-
ity to open, correct, and modify judgments. See State
v. Dayton, supra, 176 Conn. App. 871 n.13 (‘‘[o]ur courts
have inherent power to open, correct and modify judg-
ments’’ [internal quotation marks omitted]). The com-
mon law is judge made law. See Western Union
Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 102,
21 S. Ct. 561, 45 L. Ed. 765 (1901) (‘‘the common law
comprises the body of those principles and rules of
action . . . which derive their authority . . . from
the judgments and decrees of the courts’’ [internal
quotation marks omitted]). As such, this court has the
inherent authority to develop and adapt it to the circum-
stances at issue. State v. Lombardo Bros. Mason Con-
tractors, Inc., 307 Conn. 412, 436, 54 A.3d 1005 (2012)
(acknowledging that this court has ‘‘authority to adapt
the common law to the changing needs of society,’’
although not in sovereign immunity cases).6 Accord-
ingly, because the rule at issue is a common-law rule,
this court has the authority to clarify, develop, and adapt
the rule, including limiting its scope and applicability
through exceptions.
As discussed, our cases have recognized an exception
to the common-law rule that a trial court loses jurisdic-
tion upon sentencing, and have done so in situations
that are logical and sensible. See State v. Wilson, supra,
199 Conn. 437; see also State v. Myers, supra, 242 Conn.
136. In my view, it requires no extension of our existing
case law to hold that such an appropriate and sensible
exception to the common-law rule applies in this case.
I would not hold that we have overruled those cases
sub silentio, or that we should overrule them explicitly
now. Rather, the case that the majority holds governs
the present situation, Luzietti, I find plainly distin-
guishable.
This court exercised its common-law authority in
Wilson, holding that the four month rule applicable in
civil cases applied equally in criminal cases. In doing
so, we created an exception to the general common-
law rule that courts lose jurisdiction upon sentencing.
See State v. Wilson, supra, 199 Conn. 437. Under this
exception, the trial court in the present case had juris-
diction to rule on the timely filed motion for a new
trial, despite the defendant’s having begun serving his
sentence, because the motion was filed and, even with
an extension of time for briefing, was to have been
ruled on within four months of the sentencing.7 Clearly,
if a court retains jurisdiction to modify a sentence for
up until four months after the judgment, a timely motion
for a new trial filed prior to sentencing falls within this
four month time frame. Accordingly, under the four
month rule espoused in Wilson, even after sentencing,
the trial court retained jurisdiction to rule on the timely
filed motion for a new trial because the motion’s filing
and the court’s ruling both occurred before four months
had passed after sentencing.
Then, in Myers, this court stated that ‘‘the trial court
retained jurisdiction to entertain the motion for a new
trial [that was timely filed prior to sentencing but not
decided until] after sentencing because it could have
opened the judgment.’’ (Footnote omitted.) State v.
Myers, supra, 242 Conn. 136. In Myers, we cited to
Wilson and acknowledged, in a footnote, that the four
month rule applied equally in criminal and civil cases.
See id., 136 n.16. Thus, as a result of the timely filing
of the motion prior to sentencing, the four month rule
applied to the defendant’s motion in Myers. The trial
court, in Myers, however, did not rule on the motion
for a new trial within four months of sentencing the
defendant. This possibly suggests that Myers not only
applied the four month rule, but determined that the
trial court retains jurisdiction over a motion for a new
trial as long as it was timely filed prior to sentencing,
even if the court did not rule on the motion within the
four month time frame.8 To the extent that the court
in Myers misapplied the four month rule in this regard,
such an error does not affect the applicability of the
four month rule to the present case, in which the trial
court did rule on the motion within four months of
sentencing. See footnote 7 of this concurring and dis-
senting opinion. In all other aspects, the procedural
posture of the present case is nearly identical to that
of Myers: a motion for a new trial filed before sentencing
and within the time permitted to file such a motion.9
Accordingly, pursuant to Myers, the trial court in the
present case retained jurisdiction to decide the defen-
dant’s motion for a new trial.
The majority counters that the four month rule does
not apply, in essence holding that Luzietti and subse-
quent cases overruled Wilson and Myers sub silentio.
In State v. Luzietti, supra, 230 Conn. 427, which ignores
the four month rule, the defendant timely filed his
motion for a judgment of acquittal, and the trial court
denied it prior to sentencing. Id., 429. Six weeks after
sentencing, the defendant filed a motion for reargu-
ment. Id. The trial court granted reargument but denied
relief, holding that it could not grant the underlying
motion for a judgment of acquittal because it did not
have jurisdiction to modify the judgment. Id., 429–30.
In Luzietti, however, this court was not faced with
determining whether the trial court retained jurisdiction
to decide a timely filed motion for a new trial that was
filed prior to sentencing, but rather was faced with a
motion for reargument filed after sentencing regarding
a motion for a judgment of acquittal that already had
been denied prior to sentencing.
Similarly, all the other post-Myers cases that the
majority relies on to reject the four month rule are
distinguishable because they involve motions or peti-
tions filed after sentencing. See State v. Ramos, supra,
306 Conn. 128–29 (motion to vacate filed more than
three years after judgment); State v. Parker, supra, 295
Conn. 830 (motion to correct illegal sentence filed after
sentencing); State v. Das, 291 Conn. 356, 360, 968 A.2d
367 (2009) (motion to vacate judgment filed after sen-
tencing); State v. Lawrence, 281 Conn. 147, 151, 913
A.2d 428 (2007) (motion to correct illegal sentence filed
after sentencing); State v. Reid, 277 Conn. 764, 771, 894
A.2d 963 (2006) (motion to withdraw guilty plea filed
after sentencing); Cobham v. Commissioner of Correc-
tion, 258 Conn. 30, 35, 779 A.2d 80 (2001) (petition for
writ of habeas corpus seeking to correct illegal sentence
filed after sentencing). Thus, even if the majority is
correct that Luzietti and its progeny overrule Wilson
sub silentio, making the four month rule inapplicable
in criminal cases in which a motion is filed after sen-
tencing, Luzietti does not affect the holding of Myers,
which permits a court to retain jurisdiction overly a
timely filed motion for a new trial filed prior to sentenc-
ing. I see no reason why this court’s decision in Luzietti
would or should have any effect on our decision in
Myers.
B
In the civil context, a circumstance such as the pres-
ent one—the ‘‘unintentional’’ loss of jurisdiction over
a timely filed motion—would very likely be called a
‘‘mutual mistake,’’ authorizing the court to open its judg-
ment to rule on the motion. See Kenworthy v. Kenwor-
thy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Carabetta
v. Carabetta, 133 Conn. App. 732, 735, 38 A.3d 163
(2012). A mutual mistake is a mistake ‘‘that is common
to both parties and effects a result that neither
intended.’’ (Internal quotation marks omitted.) Terry v.
Terry, 102 Conn. App. 215, 229, 925 A.2d 375, cert.
denied, 284 Conn. 911, 934 A.2d 931 (2007). In the pres-
ent case, as the Appellate Court accurately described
it, the parties and the trial court made the ‘‘collective
mistake’’ of believing that the court would retain juris-
diction over the new trial motion once the defendant
had been sentenced. State v. McCoy, supra, 171 Conn.
App. 328 n.6. In my view, even if the majority is correct
that Luzietti has thrown cold water on Wilson and
Myers, the trial court could have opened the judgment
to rule on the new trial motion under the related concept
of mutual mistake.
In civil cases, General Statutes § 52-212a permits par-
ties to file a motion to open or set aside the judgment
within four months from the date of judgment. There is
an exception, however, for cases in which the judgment
was based on fraud or mutual mistake: ‘‘It is a well-
established general rule that even a judgment rendered
by the court . . . can subsequently be opened [after
the four month limitation] . . . if it is shown that . . .
the judgment, was obtained by fraud . . . or because
of mutual mistake.’’ (Internal quotation marks omitted.)
In re Jonathan M., 255 Conn. 208, 238, 764 A.2d 739
(2001). This authority stems from the courts’ ‘‘intrinsic
powers, independent of statutory provisions authoriz-
ing the opening of judgments, to vacate any judgment
obtained by fraud, duress or mutual mistake.’’ In re
Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992);
see also In re Samantha S., 120 Conn. App. 755, 758
n.3, 994 A.2d 259 (2010) (‘‘[a] common-law motion to
open must be predicated on fraud, duress or mutual
mistake’’), appeal dismissed, 300 Conn. 586, 15 A.3d
1062 (2011).
‘‘Mutual mistake is an equitable principle that allows
for the court to work fairness, equity and justice.’’ (Inter-
nal quotation marks omitted.) In re Santiago G., 154
Conn. App. 835, 841 n.6, 108 A.3d 1184, aff’d, 318 Conn.
449, 121 A.3d 708 (2015). Fairness, equity and justice
are essential to the justice system as a whole, not just
to the civil side of that system. Although this court
never has applied the mutual mistake exception in a
criminal case, I can think of no policy reason that justi-
fies remedying mutual mistakes in civil cases but not
in criminal cases, especially in light of the greater liberty
interests at stake in criminal cases. The Appellate Court,
in fact, has noted that the exception should apply
equally in criminal cases. In State v. Dayton, supra, 176
Conn. App. 871 n.13, that court explained that in civil
cases, there is an exception to the four month rule if
the judgment was obtained by fraud or mutual mistake.
Citing to Wilson, the Appellate Court acknowledged
that there was no reason for either the four month rule
or the mutual mistake exception not to apply equally
to criminal cases. Id.10
This court can, and in my view should, exercise its
inherent authority to develop and adapt the common-
law rule at issue by extending the mutual mistake excep-
tion to criminal cases. See part I A of this concurring
and dissenting opinion. In exceptional circumstances,
as in the present case, where both parties and the court
did not realize that application of the rule at issue would
deprive the court of jurisdiction, such a mutual mistake
should not divest the court of jurisdiction to decide a
timely filed motion for a new trial. See State v. Brown,
8 Conn. App. 248, 251, 512 A.2d 965 (1986) (‘‘‘[W]hen
a court has acquired jurisdiction, no subsequent error
or irregularity will oust the jurisdiction thus acquired.
It does not lose jurisdiction because it makes a mistake
in determining either the facts or the law, or both, in
the case before it,’ ’’ quoting 22 C.J.S. 423–24, Criminal
Law § 165 [1961].). Such an application of the rule is
unfair, inequitable and unjust, and I would therefore
conclude that the court could have exercised jurisdic-
tion to rule on the motion for a new trial in this case
because of mutual mistake.
C
Even if, as the majority suggests, neither of these
exceptions apply and our current case law does not
permit a trial court after sentencing to rule on a timely
filed motion for a new trial, I believe we can and should
recognize such a sensible exception to what Holmes
would refer to as the ‘‘axioms and corollaries [akin to]
a book of mathematics.’’ O. Holmes, supra, p. 5. As
discussed previously, the rule at issue is a common-
law rule. As a common-law rule borne out of experience
and sensibility; see id.; this court has the inherent power
to define its contours to ensure that its application
does not lead to unsensible and unjust results, inherent
power that includes the ability to limit its scope and
applicability through exceptions to it, such as for timely
filed motions for a new trial.
Ultimately, it is a question of judicial policy for this
court to determine whether our common-law rule
should prevent a timely filed motion for a new trial
from being adjudicated when the trial court and the
parties mistakenly believed that the court could rule
on the motion after sentencing. See Dacey v. Connecti-
cut Bar Assn., 184 Conn. 21, 25–26, 441 A.2d 49 (1981)
(defining common law as ‘‘the prevailing sense of the
more enlightened members of a particular community,
expressed through the instrumentality of the courts
. . . in view of the particular circumstances of the
time’’ [internal quotation marks omitted]). I would hold
that our law should permit a trial court under these
circumstances to exercise jurisdiction to rule on the
timely filed motion for a new trial. If the trial court
denies the motion, the court’s judgment and sentence
remain the same. If the trial court were to find the
motion to have merit, I believe our law should permit
the court to ‘‘open, correct and modify’’ its judgment
by vacating the sentence and ordering a new trial, just
as our court could order if, on appeal, we were to find
error. Such an exception would be consistent with this
court’s holding in Myers, to the extent that Myers does
not rely on the four month rule. It may be unclear from
Myers whether the court relied solely on the four month
rule in holding that the trial court retained jurisdiction
over a motion for a new trial that was timely filed prior
to sentencing, but not ruled on until after sentencing.
See State v. Myers, supra, 242 Conn. 136. What is clear
from Myers, however, is that this court held that there
was an exception to the common-law rule at issue under
such circumstances. Just as in Myers, the trial court in
the present case originally had jurisdiction over a timely
filed motion for a new trial, and the issue is whether
the court then accidentally lost jurisdiction. As a matter
of law, Myers clarified that the common-law rule does
not deprive the court of jurisdiction in these circum-
stances. As a matter of judicial policy, such an exception
is necessary to protect a defendant’s ability to seek
review of his new trial claims from the court that pre-
sided over the trial and had the opportunity to view the
effect of any alleged improprieties.
The state argues that an unflinching application of
the general rule is necessary to ensure eventual finality
and to prevent trial judges from dawdling over motions
for too long. Both policies are laudable, but, in my view,
neither suffices to justify strict adherence to a supposed
general rule at such a cost to defendants.11
First, as the state admitted candidly in argument
before this court, finality is not achieved in this case:
it is an illusion. Namely, the issues raised in the timely
motion that the trial court accidentally lost jurisdiction
over can and will be raised in postjudgment petitions
for a new trial or habeas corpus or a motion to correct
an illegal sentence. See State v. Parker, supra, 295 Conn.
837, 839 (‘‘permitting correction of both illegal senten-
ces and sentences imposed in an illegal manner’’ and
noting that ‘‘[t]he defendant has a legitimate interest
in the character of the procedure which leads to the
imposition of sentence even if he may have no right to
object to a particular result of the sentencing process’’
[internal quotation marks omitted]). The state goes on
to argue that while that might be true, there is virtue
in moving the case along to the inevitable next step.
Although I cannot disagree with—and perhaps join
the state in—the cynical view on which this argument
is based (i.e., there will always be a postjudgment chal-
lenge), to me, this inevitability should not contribute
to the misapplication of a rule to a situation to which
it should not apply. Moreover, although this defendant
or any other might very well be able to add his new
trial claims to any other collateral challenge he brings,
as the state well knows, the obstacles to relief for a
convicted criminal defendant increase as the burdens
of proof heighten in collateral proceedings.12 Would it
not have been better for everyone if we had the consid-
ered views of the trial judge on these issues (issues the
trial judge called ‘‘colorable’’), whether on direct appeal
or on collateral review? In fact, we must defer to the
judge who sat through the trial and witnessed the
impact on the jury of the prosecutor’s actions and the
court’s rulings. See State v. Smith, 313 Conn. 325, 347,
96 A.3d 1238 (2014) (‘‘the trial [judge has a] superior
opportunity to assess the proceedings over which he or
she has personally presided’’ [internal quotation marks
omitted]). Ruling on the issue through a timely filed
motion for a new trial, reviewed on direct appeal with
deference, very likely removes the issue from among
any the defendant might seek to raise in a collateral pro-
ceeding.
Additionally, this court previously has rejected argu-
ments that the need for ‘‘finality’’ justifies upholding a
judgment obtained through mutual mistake or fraud.
In In re Baby Girl B., supra, 224 Conn. 265–66, the
commissioner of the Department of Children and Youth
Services (commissioner) filed a petition for termination
of parental rights on the ground of abandonment pursu-
ant to General Statutes (Rev. to 1991) § 17a-112 (b)
(1). Four months after the petition was granted, the
respondent mother moved to open the judgment pursu-
ant to § 52-212a. Id., 266. The trial court granted the
motion to open and denied the petition for termination
of parental rights. Id., 266–67. On appeal, the commis-
sioner argued that the trial court improperly granted
the motion to open because § 52-212a did not apply to
petitions for termination of parental rights and because
there was a public policy in favor of finality in cases
involving juveniles. Id., 281–82.
This court in In re Baby Girl B. rejected the commis-
sioner’s position, not only because it was in conflict
with the plain language of § 52-212a; id., 282; but also
because the commissioner’s argument for finality con-
flicted with the court’s statutory and ‘‘intrinsic powers’’
to open judgments. Id., 283. Although the court in In
re Baby Girl B., was required to interpret § 52-212a,
the court’s analysis established that a public policy in
favor of finality does not necessarily trump the court’s
inherent authority to open judgments.
Finally, even as the majority applies the jurisdictional
rule with exactitude, it tempers the rule with an obvious
work-around: the trial court can simply sentence the
defendant and stay the sentence until the court gets
around to ruling on the motion. See State v. Walzer,
208 Conn. 420, 424–25, 545 A.2d 559 (1988). In my view
this is no rule at all. Although I agree with the majority
that staying the proceedings is a ‘‘useful mechanism,’’13
it surely does not vindicate the policies the state offers
in support of the rule. This work-around undercuts not
only the finality of the judgment, but also the other
policy justification the state offers for the draconian
rule the majority adheres to, i.e., that trial judges will
take too long to rule on such motions. I am not aware
that this is a prevalent problem. If it is, perhaps it is
an issue the Rules Committee of the Superior Court can
address. But the sanction of the court losing jurisdiction
over a timely motion for a new trial that it characterized
as ‘‘colorable’’ seems to me to be a solution far out
of proportion to a potential problem that is so easily
overcome by other means. Better in my view to recog-
nize an exception to the rule than to pay lip service to
a rule so easily avoided, especially when an exception
would be an equally useful mechanism.14
As a result, I find neither of the state’s policy justifica-
tions persuasive. Rather, on the basis of judicial experi-
ence and sensibility; see O. Holmes, supra, p. 5; I believe
judicial policy, consistent with this court’s holding in
Myers, favors recognizing an exception under the cir-
cumstances at issue in this case. As a result of either
accident or the parties’ mutual oversight of controlling
law, a defendant should not be deprived of his opportu-
nity to have his properly filed common-law motion for a
new trial decided by the judge who oversaw his criminal
trial, and personally observed the jury and its reaction
to evidence and arguments.
II
Even if I were to accept the majority’s conclusion
that there is no exception under the common law that
would permit the trial court to rule on a timely filed
motion for a new trial after the defendant had been
sentenced, I have no trouble calling the trial court’s
‘‘unintentional’’ loss of jurisdiction what it clearly was:
plain error. As two erudite commentators have advised:
‘‘Plain error is most likely found where the trial court
and the parties have overlooked clearly controlling law,
be it a constitution, statute, rule, case law or ‘established
practice.’ ’’ C. Tait & E. Prescott, Connecticut Appellate
Practice and Procedure (3d Ed. 2000) § 8.7, p. 304. This
seems to me to be a textbook—perhaps hornbook—
example of plain error: the trial court and the parties
overlooked controlling case law when the court, with
the parties’ agreement, continued the new trial motion
and went on to sentence the defendant. More specifi-
cally, if both the state and the Appellate Court are cor-
rect that the ‘‘traditional rule’’ applies in the present
case, ending the trial court’s jurisdiction when the sen-
tence was pronounced and executed, with no exception
for a timely filed motion for a new trial or the parties’
and the court’s mutual mistake, in my view it was plain
error for the trial court to so pronounce and execute
sentence, leaving a properly filed motion to be lost in
the oblivion. At the very least, the court should have
stayed the defendant’s sentence while it considered the
motion, as the majority suggests trial courts do rou-
tinely.
I fully recognize that ‘‘[t]he plain error doctrine is
reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 812–13, 155
A.3d 209 (2017).
In my view, the trial court’s failure to rule on a timely
filed motion for a new trial—perhaps in any case, but
surely in a case in which the court has effectively pro-
nounced a life sentence on the defendant—clearly
‘‘affects the fairness and integrity of and public confi-
dence in the judicial proceedings.’’15 (Internal quotation
marks omitted.) Id., 812. Judges have an obligation to
rule on motions, certainly timely filed motions that raise
‘‘colorable’’ issues. See Amato v. Erskine, 100 Conn.
497, 499, 123 A. 836 (1924) (‘‘[it is the court’s] right and
duty to determine every question which may arise in
the cause’’ [internal quotation marks omitted]); Code
of Judicial Conduct, Rule 2.7 (‘‘[a] judge shall hear and
decide matters assigned to the judge’’). The trial court
in this case failed in that obligation by losing jurisdiction
over the motion. That it did so accidentally or inadver-
tently does not make it any more fair to the defendant
or impact public confidence any less. I do not read the
majority to contend otherwise. Rather, while acknowl-
edging that it was error for the trial court not to rule
on the pending motion, the majority concludes that
this error was neither so obvious nor so harmful as to
constitute ‘‘manifest injustice.’’ I do not agree.
As to whether the error was ‘‘so clear’’ or ‘‘so obvi-
ous,’’ the majority appears to conclude that the error
falls in a sweet spot (or, for the defendant, a not so
sweet spot). Namely, we are told that the rule that
the trial court loses jurisdiction upon sentencing is a
‘‘generally accepted’’ and ‘‘well established’’ jurisdic-
tional and common-law doctrine. Yet, because of what
the majority considers to have been ‘‘anomalies in this
court’s case law’’ that ‘‘may have resulted in some confu-
sion,’’ the error was not sufficiently clear to fall within
the clear error test. This is a needle I have a hard
time threading.
The majority’s view might be persuasive if, when the
trial court sentenced the defendant without ruling on
his timely new trial motion, it had sorted among what
the majority finds to be anomalous or confusing prece-
dents. But, like the parties, the trial court missed alto-
gether the ‘‘loss of jurisdiction’’ issue, sorting among
the precedents only after the horse had left the jurisdic-
tional barn. Thus, the trial court’s error was not in
determining whether Luzietti applied, as opposed to
Wilson and Myers, but rather in not considering the
import of the ‘‘well established’’ rule at all, at a time
when it still could have ruled on the defendant’s motion,
as it was obliged to, including by putting off the sentenc-
ing proceeding or by pronouncing sentence and staying
its execution. Whether this error actually affected the
court’s subject matter jurisdiction was perhaps argua-
bly not clear or obvious, but the fact that the court
should have, but did not, rule on the new trial motion
prior to sentencing was clear and obvious. By not doing
so, the defendant was denied an opportunity to seek a
new trial pursuant to Practice Book § 42-53. This seems
to me exactly the kind of error that the plain error
doctrine was designed to address.
As to the second prong of the plain error test,
although I agree with the majority that unlike the situa-
tion for defendants in structural error cases, the defen-
dant in the present case was required to establish harm
that amounts to manifest injustice, I disagree that the
defendant failed to do so. The majority concludes that
there is no ‘‘manifest injustice’’ because the alleged
prosecutorial improprieties detailed in the motion for
a new trial are the same improprieties that this court
concludes lack merit on direct appeal. What the record
in this appeal lacks, however, is the ruling of the trial
judge who presided over the defendant’s trial. Today’s
majority essentially declares that that ruling was unnec-
essary. I do not agree, and I would conclude that the
defendant was harmed by not having his motion for a
new trial reviewed first by the trial judge who super-
vised his criminal trial, notwithstanding our conclusion
today affirming the judgment of the trial court on the
record presented. See footnote 1 of this concurring and
dissenting opinion.
It is well established that a trial judge is in a better
position to assess any error or prejudice that occurred
during trial. It is the trial judge who viewed the evidence,
heard the witnesses’ testimony and counsel’s argu-
ments, and viewed the jury’s reaction. Motions for a
new trial provide the best remedy when claims of prose-
cutorial impropriety are alleged because they permit
the trial court to rely on its personal experience at trial,
during which the court may have observed the effect
and prejudice, if any, the impropriety had on the jury.
It is because of this firsthand experience that trial courts
are afforded discretion in deciding motions for a new
trial, which we then review for abuse of that discretion.
See State v. Myers, 290 Conn. 278, 288–89, 963 A.2d 11
(2009). Thus, the manifest injustice in this case is not
necessarily that the defendant would have prevailed on
his claims, but rather that the parties and this court
have lost the benefit of the trial court’s considered views
of his claims, especially in light of the fact that the trial
judge deemed the defendant’s motion for a new trial
‘‘colorable . . . .’’ Even if the trial court would have
denied the motion, we would have had the benefit of
a record of its reasons for doing so, which potentially
could impact our review of the claims on direct appeal.
It is the significance of the trial court’s discretion
that distinguishes this case from the case cited by the
majority, State v. Myers, supra, 290 Conn. 278. In Myers,
defense counsel waived a trial on part B of the informa-
tion, which charged the defendant as a repeat offender,
and, thus, the trial court did not ‘‘accord him a hearing
regarding his jeopardy as a repeat offender and . . .
make a finding regarding his status as a repeat offender
in accordance with Practice Book § 42-2 . . . .’’ (Inter-
nal quotation marks omitted.) Id., 285. The Appellate
Court in Myers had held that the trial court’s failure
to abide by § 42-2 was plain error because ‘‘[a] court
commits plain error when it fails to implement properly
the mandatory provisions of clearly applicable rules of
practice.’’ (Internal quotation marks omitted.) Id. This
court reversed in part the judgment of the Appellate
Court, explaining that ‘‘apart from the trial court’s fail-
ure to comply strictly with the applicable rule of prac-
tice, which we do not condone, the defendant has failed
to raise any doubt with respect to the validity of his
prior conviction. A trial court’s failure to comply with
a rule of criminal procedure, without more, is insuffi-
cient to require reversal for plain error.’’ (Emphasis
omitted; footnote omitted.) Id., 290.
The present case is distinguishable from Myers
because the defendant in Myers did not request that
the trial court exercise its discretion. The sole issue in
Myers was the legal question of whether the defendant
could waive a hearing on the part B information and
bypass Practice Book § 42-2. In the present case, the
trial court was required to exercise its discretion to
determine whether to grant a new trial on the basis of
whether the alleged prosecutorial improprieties preju-
diced the defendant.
At great risk of being unduly practical, and under-
standing that the defendant must demonstrate preju-
dice, I fail to understand just what the state and the
majority fear here. If the trial court denies the defen-
dant’s motion, the court has vindicated the defendant’s
right to a ruling on his timely motion, respected its
authority and obligation to rule on that motion, and
prevented collateral litigation on the failure of the court
to rule on the motion and the failure of the parties to
recognize their oversight. If the trial court grants the
motion for a new trial, there is no need for this appeal,
unless the state seeks and obtains permission to appeal.
See General Statutes § 54-96 (state cannot appeal in
criminal case unless permitted to do so by trial court).
I further part company with the majority on the issue
of manifest injustice in that the majority already has
concluded that the trial court could not under any cir-
cumstances have granted the motion as a matter of
discretion. I reject that notion. It was the trial judge
who observed the questions the prosecutor posed, the
witnesses’ conduct and the jury’s reaction, and
expressed his own frustration with the prosecutor. See
State v. McCoy, supra, 171 Conn. App. 316. I do not agree
that our affirmance of the judgment on the prosecutorial
impropriety issues raised; see part I of the majority
opinion; means that the trial court’s own ruling on those
issues was preordained or ineluctable. It is not possible
to say that the court would have abused its discretion
if the record had been augmented by the court’s views
and the court had granted the motion for a new trial
on the basis of the issues the defendant sought to raise
in that motion. And if the trial court had granted the
motion, there could be no doubt that the defendant had
been so harmed as to amount to manifest injustice.
Nor can I agree with the state that the defendant has
suffered no manifest injustice because he can always
raise his claims in a petition for a new trial or for a
writ of habeas corpus. As the state well knows, the
burdens of demonstrating prejudice are much steeper
in such collateral proceedings. See footnote 12 of this
concurring and dissenting opinion. In addition, the
defendant would suffer prejudice by virtue of any delay
he would endure if he were entitled to prevail, and
would have prevailed, on his timely filed motion. In
fact, being consigned to having to raise his claims in a
collateral proceeding because of the trial court’s acci-
dental and inadvertent loss of jurisdiction is the mani-
festation of prejudice that in my view warrants invoking
the plain error doctrine. Accordingly, because the error
in this case was clear and harmful, I would reverse the
judgment of the Appellate Court and remand the case
to that court with direction to remand the case to the
trial court to rule on the motion for a new trial.16
I therefore respectfully concur in part and dissent
in part.
1
I concur, however, with the conclusion in part I of the majority’s opinion
that the Appellate Court properly concluded that the alleged prosecutorial
improprieties detailed in the motion for a new trial did not deprive the
defendant of a fair trial.
2
Neither Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779
A.2d 80 (2001), State v. Myers, 242 Conn. 125, 698 A.2d 823 (1997), State v.
Luzietti, supra, 230 Conn. 427, nor State v. Wilson, 199 Conn. 417, 436, 513
A.2d 620 (1986), refer to the rule as one of subject matter jurisdiction, but
rather merely of ‘‘jurisdiction.’’ Although this court has stated on numerous
occasions that a criminal trial court’s jurisdiction ends with the sentencing
of the defendant, this rule just as easily can be explained as implicating the
court’s personal jurisdiction over the defendant, rather than subject matter
jurisdiction over the case. In fact, although not relied on by the majority, one
of the justifications advanced in support of the rule is that upon execution
of sentence, the custody of the defendant is transferred from the court
to the Commissioner of Correction, which arguably implicates the court’s
jurisdiction over the defendant’s person. See State v. Luzietti, supra, 432.
Of course, if this rule does not implicate subject matter jurisdiction, the
parties could have waived any objection to the court’s ruling on the motion.
Compare General Statutes § 52-212a (providing that civil judgments may be
opened or set aside only within four months following judgment, but further
providing that ‘‘parties may waive the provisions of this section or otherwise
submit to the jurisdiction of the court’’).
3
‘‘As this court previously has observed, ‘[t]he common law is generally
described as those principles, usage, and rules of action applicable to the
government and security of persons and property which do not rest for
their authority [on] any express and positive declaration of the will of the
legislature.’ . . . Moore v. McNamara, 201 Conn. 16, 24, 513 A.2d 660 (1986);
see also Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92,
102, 21 S. Ct. 561, 45 L. Ed. 765 (1901) (‘[a]s distinguished from law created
by the enactment of legislatures, the common law comprises the body of
those principles and rules of action relating to the government and security
of persons and property, which derive their authority solely from usages
and customs of immemorial antiquity, or from the judgments and decrees of
the courts recognizing, affirming and enforcing such usages and customs’).’’
State v. Courchesne, 296 Conn. 622, 674 n.36, 998 A.2d 1 (2010).
4
Although the majority is correct that the strong presumption in favor of
jurisdiction must be considered in light of the common-law rule at issue;
State v. Ramos, supra, 306 Conn. 134–35; it is this court that defines the
scope of this rule. See part I C of this concurring and dissenting opinion.
5
To be clear, my view that the trial court was mistaken that it lost jurisdic-
tion concerns only the grounds raised in the defendant’s timely filed motion
for a new trial. I do not suggest that the defendant can bootstrap his claim
of nondisclosure of evidence pursuant to Brady v. Maryland, 373 U.S. 83,
87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which was untimely raised for
the first time in his amended motion for a new trial three months after
sentencing, to his timely filed motion for a new trial. Thus, in my view,
although the trial court should retain jurisdiction to decide the timely filed
motion for a new trial, the defendant’s untimely amendment to the motion,
filed after sentencing, would not be properly before the court.
6
The court’s inherent authority to develop and adapt the common law is
consistent with the nature of the common law: ‘‘The common law is not
static, but is a dynamic and growing thing and its rules arise from the
application of reason to the changing conditions of society. . . . [T]his
flexibility and capacity for growth and adaptation is the peculiar boast and
excellence of the common law . . . .’’ (Citations omitted; internal quotation
marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188
Conn. 107, 127, 448 A.2d 1317 (1982).
7
The defendant was found guilty on March 11, 2013. Because the five day
deadline for filing his motion for a new trial fell on a Saturday, the defendant
had until Monday, March 18, 2013, to file his motion, and he filed it on that
day. See Practice Book § 7-17. He was sentenced on June 6, 2013. Under
the four month rule, the trial court had until at least October 6, 2013, to
open or modify the judgment. The trial court denied the motion for a new
trial on September 20, 2013, within the time frame of the four month rule.
8
The state argues that Practice Book § 42-54 limits a court’s ability to
entertain such a motion to only prior to sentencing. I disagree. Section 42-
54 does not limit the time frame in which the court may rule on a motion
for a new trial; it limits only the time within which such a motion may be
‘‘made.’’ Once a defendant timely makes a motion for a new trial, nothing
in the language of § 42-54 prevents a court from ruling on the motion
after sentencing.
9
To the extent that Myers does not rely on the four month rule, but rather
recognizes its own exception to the common-law rule at issue, see part I C
of this concurring and dissenting opinion.
10
It is noteworthy that in Dayton, in which the state claimed to have
improperly nolled the case, it was the state that argued that both the four
month rule and the mutual mistake exception should apply equally to civil
and criminal cases. See State v. Dayton, supra, 176 Conn. App. 862 n.7,
871 n.13.
11
The majority admits that the policy of double jeopardy that originally
animated the general rule no longer applies.
12
To prevail on a motion for a new trial, the defendant must establish
that ‘‘an occurrence at trial has so prejudiced a party that he or she can no
longer receive a fair trial.’’ (Internal quotation marks omitted.) State v.
Smith, 313 Conn. 325, 348, 96 A.3d 1238 (2014). ‘‘[A] motion for a new trial
is addressed to the sound discretion of the trial court and is not to be
granted except on substantial grounds.’’ (Internal quotation marks omitted.)
Id., 347–48. Thus, the standard for a motion for a new trial already creates
a difficult hurdle to overcome. This difficultly is exacerbated in this case
if the defendant is required to bring his claim by means of a petition for a
writ of habeas corpus, which requires him to establish prejudice; Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
or by means of a petition for a new trial, which requires him to establish
that there will be ‘‘a different result in a new trial’’; Jones v. State, 328 Conn.
84, 92, 177 A.3d 534 (2018); or by means of direct appeal, in which the
appellate courts are deprived of the trial court’s views on the matter, espe-
cially in light of the fact that it is unknown if the trial court would have
granted the ‘‘colorable’’ motion in the present case.
13
The majority attempts to distinguish the ‘‘useful mechanism’’ of staying
the defendant’s sentence from the exception that I suggest our case law
permits, or should permit, on the ground that it ‘‘is expressly rooted in case
law . . . .’’ Rather than distinguish, the history of staying proceedings bol-
sters my view that this court has inherent power to develop the common law,
including through the creation of exceptions to a common-law jurisdictional
rule. A court’s power to stay the execution of a sentence derives not from
a statute or a constitutional provision. It is an inherent common-law power:
‘‘The common law has long recognized a court’s ability to stay the execution
of a criminal sentence in a variety of contexts. . . . [T]he power to stay
the execution of a sentence, in whole or in part, in a criminal case, is
inherent in every court having final jurisdiction in such cases, unless other-
wise provided by statute. . . . Absent an abuse of discretion or a limiting
statute, therefore, a trial court has the ability to stay the execution of a
criminal sentence in order to fulfill its duty to implement the penalties
dictated by the legislature for criminal offenses and to promote the ends
of justice.’’ (Citations omitted; internal quotation marks omitted.) Copeland
v. Warden, 225 Conn. 46, 49–50, 621 A.2d 1311 (1993) (permitting court
to stay execution of sentence until after defendant finished psychiatric
treatment); see also State v. Leak, 297 Conn. 524, 537, 998 A.2d 1182 (2010)
(trial court had inherent common-law power to impose on defendant consec-
utive terms of commitment following insanity acquittals of multiple offenses
by staying execution of one term of commitment until expiration of another
term of commitment).
It is true that the exception I suggest involves the trial court fulfilling its
duty to decide a motion for a new trial after the sentence has been executed,
as in Myers, while the mechanism of staying the execution of the sentence
occurs after sentencing but before execution. This distinction, however,
does not justify the majority’s conclusion that the court loses subject matter
jurisdiction under the former circumstance but not the latter. Under both
circumstances, the defendant has been sentenced. The only difference is
whether the defendant is in the custody of the Department of Correction.
Such a difference appears to implicate personal jurisdiction, not subject
matter jurisdiction. See footnote 2 of this concurring and dissenting opinion.
As such, both mechanisms are the product of the common law, which this
court develops pursuant to its inherent authority.
14
The majority makes a very fair point in questioning whether the excep-
tion that I suggest exists (or should exist) can extend ‘‘in perpetuity.’’ I have
the same question about the mechanism that the majority says should have
been employed. Can the trial court stay the defendant’s sentence ‘‘in perpetu-
ity’’ while considering the new trial motion? I imagine that at some point
under either scenario an appellate court could be called on to exercise its
supervisory authority over the administration of justice to compel a ruling
on the motion. See Practice Book §§ 60-2 (‘‘[t]he supervision and control
of the proceedings shall be in the court having appellate jurisdiction from
the time the appellate matter is filed, or earlier, if appropriate’’ [emphasis
added]) and 66-6 (permitting this court to modify trial court order concerning
stay upon motion for review).
15
The state objects even to our considering this issue as plain error,
although it admits that this court may raise an issue as plain error on its
own. See Practice Book 60-5. I do not find it a particularly close question
that this case involves an exceptional circumstance that justifies raising
plain error on our own, i.e., the ‘‘unintentional’’ or ‘‘inadvertent’’ loss of
jurisdiction over a motion that is the last step before the trial court was to
sentence the defendant to sixty years imprisonment. Given this unique and
exceptional circumstance, I see very little risk that significant violence will
befall our plain error jurisprudence if we invoke the doctrine in this case.
Additionally, even accepting, as I do, the state’s representation before
the trial court that its agreement ‘‘to continue the motion for briefing and
argument’’ was ‘‘not meant to deceive either the defendant or the [trial]
court,’’ I fail to understand how the state’s position opposing plain error
review contributes to ‘‘ ‘public confidence in the judicial proceedings.’ ’’
State v. McClain, supra, 324 Conn. 812. Like the trial court and the defendant,
the state quite apparently overlooked controlling law, leading to a loss of
the defendant’s opportunity to press his ‘‘colorable’’ new trial motion. This
collective inadvertence, I believe, quite clearly ‘‘affects the fairness and
integrity of and public confidence in the judicial proceedings.’’ (Internal
quotation marks omitted.) State v. McClain, supra, 812.
16
Although I have been unable to find a case with a procedural posture
identical to that of the present case, in other unique cases in which the trial
court failed to rule on a motion or failed to conduct a hearing, this court
has remanded the case to the trial court to rule on the motion or conduct
the hearing and then, based on the outcome of those further proceedings,
either this court or the trial court has been permitted to vacate the sentence
and order a new trial. See State v. Pollitt, 199 Conn. 399, 416–17, 508 A.2d
1 (1986) (remanding case to trial court to conduct evidentiary hearing in
order to have sufficient record to determine claims on appeal, but waiting
on whether to vacate conviction and order new trial until court has full
record to decide claims); see also Tough v. Ives, 159 Conn. 605, 607, 268
A.2d 371 (1970) (in case in which trial court refused to rule on motion to
set aside verdict, case was ‘‘remanded to the Superior Court with direction
that it be referred to the judge who presided at the trial, and he is directed
forthwith to either grant or deny the March 15, 1968, motion to set aside
the verdict and thereafter, forthwith, in accordance with the result of his
decision on that motion, to order either that the verdict be set aside or that
judgment be rendered on the verdict’’); Alderman v. Hanover Ins. Group,
155 Conn. 585, 590, 236 A.2d 462 (1967) (‘‘the proper judgment in . . . a
situation [where the court failed to decide an issue] is to remand the case
in order that the court may decide the issue [unless the question is one
of law]’’).
The idea that this court cannot fix a problem of the judiciary’s own making
makes no sense. This court has the ability to craft a remand order as justice
requires, even in the face of unique circumstances. See In re Final Grand
Jury Report Concerning the Torrington Police Dept., 197 Conn. 698, 717,
501 A.2d 377 (1985) (‘‘[i]n the interests of justice, we have the power to
remand a case for further proceedings even in the absence of reversible
error by the trial court’’). In fact, I have no doubt that under any of several
provisions of our rules of practice the majority could have returned this
matter to the trial court for its views on the motion for a new trial, in aid
of our review of the prosecutorial impropriety claim. See Practice Book
§§ 60-1 (‘‘[t]he design of these rules being to facilitate business and advance
justice, they will be interpreted liberally in any appellate matter’’); 60-3 (‘‘for
. . . good cause shown, the court in which the appellate matter is pending
may suspend the requirements or provisions of any of these rules’’); 60-5
(‘‘[i]f the court deems it necessary to the proper disposition of the cause,
it may order a further articulation of the basis of the trial court’s factual
findings or decision’’); 64-1 (a) (requiring trial court to file a memorandum
of decision if it has failed to do so).