Diaz v. Commissioner of Correction ( 2020 )

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RAUL DIAZ v. COMMISSIONER OF CORRECTION
(SC 20233)
Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.*
Syllabus
The petitioner, who had been convicted of the crime of home invasion,
sought a writ of habeas corpus, claiming, inter alia, that his trial counsel
had provided ineffective assistance of counsel. The habeas court denied
the petitioner’s habeas petition, concluding, inter alia, that the petition-
er’s trial counsel did not provide ineffective assistance by failing to file
a motion to dismiss the home invasion charge, to which the petitioner
had pleaded guilty pursuant to North Carolina v. Alford (400 U.S. 25).
On the granting of certification, the petitioner appealed from the habeas
court’s judgment to the Appellate Court, claiming that the habeas court
incorrectly concluded that his trial counsel’s failure to file a motion to
dismiss the home invasion charge did not constitute ineffective assis-
tance. In affirming the habeas court’s judgment, the Appellate Court
declined to address the merits of the petitioner’s ineffective assistance
claim, concluding, instead, that the petitioner had waived that claim by
virtue of the entry and acceptance of his Alford plea. On the granting
of certification, the petitioner appealed to this court. Held that the
Appellate Court improperly raised and decided the unpreserved issue
of waiver without first providing the parties an opportunity to be heard
on that issue, in contravention of this court’s decision in Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. (311
Conn. 123) (Blumberg), the record having reflected that the issue of
waiver was not raised by the parties in the habeas court or before the
Appellate Court, that the Appellate Court did not instruct the parties to
file supplemental briefs before or after oral argument or otherwise
instruct the parties to be prepared to discuss the waiver issue at oral
argument, and that the waiver issue served as the dispositive ground
on which the Appellate Court affirmed the habeas court’s judgment;
moreover, this court rejected the petitioner’s claim that, on remand to
the Appellate Court, that court should consider only his ineffective
assistance claim and not the waiver claim, as the Appellate Court has
discretion, within the parameters set forth in Blumberg, to determine
whether to raise and decide an issue that was never the subject of a claim
by the parties; accordingly, this court reversed the Appellate Court’s
judgment and remanded the case to that court with direction to deter-
mine, following briefing by the parties and in a manner otherwise consis-
tent with this court’s decision in Blumberg, whether it has discretion
to raise and decide the waiver issue sua sponte and whether it should
address the petitioner’s ineffective assistance claim.
Argued November 20, 2019—officially released April 7, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to the Appellate
Court, DiPentima, C. J., and Elgo and Bear, Js., which
affirmed the habeas court’s judgment, and the peti-
tioner, on the granting of certification, appealed to this
court. Reversed; further proceedings.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Matthew Gedansky, state’s attorney,
and Melissa Patterson and David M. Carlucci, assistant
state’s attorneys, for the appellee (respondent).
Opinion
PALMER, J. The petitioner, Raul Diaz, appeals, fol-
lowing our grant of certification, from the judgment of
the Appellate Court, which affirmed the judgment of
the habeas court denying his amended petition for a
writ of habeas corpus alleging ineffective assistance of
counsel. See Diaz v. Commissioner of Correction, 185
Conn. App. 686, 687, 691, 198 A.3d 171 (2018). The
petitioner asserts, and the respondent, the Commis-
sioner of Correction, agrees, that the Appellate Court
improperly raised and decided the unpreserved issue
of waiver without first providing the parties with an
opportunity to be heard on that issue in contravention
of Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 84 A.3d 840
(2014) (Blumberg). We agree and, accordingly, reverse
the judgment of the Appellate Court and remand the
case to that court for further proceedings in accordance
with this opinion.
The following facts and procedural history, as set
forth in the opinion of the Appellate Court, are relevant
to our resolution of this appeal. ‘‘On October 27, 2011,
the petitioner entered the Ellington home of the sev-
enty-seven year old victim when he was not there. While
the petitioner was still in the home, the victim returned.
The petitioner asked the victim to step aside so that
he could flee the home, but the victim refused. The
petitioner struck the victim with a jewelry box, resulting
in a laceration [to the victim’s] head and a broken nose
and cheekbone. After taking the victim’s wallet and car
keys, the petitioner fled in the victim’s car but was
later apprehended.
‘‘The petitioner was charged in a substitute informa-
tion with two counts of home invasion in violation of
General Statutes § 53a-100aa,1 two counts of burglary
in the first degree in violation of General Statutes § 53a-
101 (a) (1) and (2), one count of larceny in the third
degree in violation of General Statutes § 53a-124, one
count of larceny in the fourth degree in violation of
General Statutes § 53a-125, one count of assault in the
second degree in violation of General Statutes § 53a-
60b, and one count of robbery in the first degree involv-
ing a dangerous instrument in violation of General Stat-
utes § 53a-134 (a) (3). On April 26, 2013, after the peti-
tioner entered into a plea agreement with the state, he
pleaded guilty under the Alford doctrine2 to one count
of home invasion in violation of § 53a-100aa (a) (2).
After a thorough canvass, the court accepted the plea,
rendered a judgment of conviction and sentenced the
petitioner in accordance with the plea agreement to
twenty-five years imprisonment. The petitioner did not
appeal from the judgment of conviction.
‘‘Thereafter, the petitioner commenced this habeas
action. On February 25, 2016, the petitioner filed an
amended petition for a writ of habeas corpus, alleging,
[inter alia], that his trial counsel had rendered ineffec-
tive assistance by failing to file a motion to dismiss
the home invasion charge on the ground that it was
duplicative of the first degree burglary charge. After a
trial, the habeas court issued a memorandum of deci-
sion [and denied] the petition . . . [agreeing with the
respondent] that the petitioner had failed to establish
that his trial counsel deficiently performed by not filing
a motion to dismiss the home invasion charge. The
habeas court found that, although the petitioner’s trial
counsel agreed with the state’s assessment that the
petitioner violated the home invasion statute, he none-
theless argued, [albeit] unsuccessfully, to the [trial]
court and the prosecutor that the home invasion charge
should be dropped, and in any event that the petitioner
should be allowed to plead to the first degree burglary
charge instead of the home invasion charge. Moreover,
the habeas court agreed with his trial counsel’s testi-
mony . . . that there was no good faith basis on which
to bring a motion to dismiss the home invasion charge
in the trial court. The habeas court further concluded
that, even if the petitioner’s trial counsel had deficiently
performed, which he had not, the petitioner was not
prejudiced.’’ (Footnote added; footnote in original.)
Diaz v. Commissioner of Correction, supra, 185 Conn.
App. 687–89.
The petitioner thereafter filed a petition for certifica-
tion to appeal, which the habeas court granted, and the
petitioner then appealed to the Appellate Court. The
petitioner claimed on appeal that the habeas court
incorrectly concluded that his trial counsel’s failure to
file a motion to dismiss the home invasion charge did
not constitute ineffective assistance of counsel. Id., 689.
In response, the respondent renewed the argument that
he had made in the habeas court, namely, that the peti-
tioner’s claim of ineffective assistance lacked merit. In
its opinion affirming the judgment of the habeas court,
however, the Appellate Court did not address the merits
of the petitioner’s contention that his counsel had ren-
dered ineffective assistance. Rather, the Appellate
Court affirmed the habeas court’s judgment on an alto-
gether different ground, namely, that the petitioner had
waived his ineffective assistance claim by virtue of the
entry and acceptance of his Alford plea. Id., 691. The
Appellate Court resolved the appeal on the basis of
waiver even though the respondent had not raised a
claim of waiver, either in the habeas court3 or in the
Appellate Court, and without first affording the parties
the opportunity to be heard on the issue of waiver.
We thereafter granted the petitioner’s petition for
certification to appeal to this court, limited to the fol-
lowing issue: ‘‘Did the Appellate Court properly affirm
the judgment of the habeas court on a legal ground that
was not raised or decided in the habeas court and never
raised or briefed by the parties in the Appellate Court?’’
Diaz v. Commissioner of Correction, 330 Conn. 954,
198 A.3d 86 (2018). We answer that question in the
negative.
‘‘[T]he Appellate Court’s decision to raise an unpre-
served issue sua sponte in exceptional circumstances
is subject to review of abuse of discretion.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., supra, 311 Conn. 167–68. It is well settled
that ‘‘appellate courts generally do not consider issues
that were not raised by the parties . . . [because] our
system is an adversarial one in which the burden ordi-
narily is on the parties to frame the issues.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Connor, 321 Conn. 350, 362, 138 A.3d 265 (2016); see
also Murphy v. EAPWJP, LLC, 306 Conn. 391, 399, 50
A.3d 316 (2012) (claim must be distinctly raised at trial
to be preserved for appeal). ‘‘[O]nly in [the] most excep-
tional circumstances can and will this court consider
a claim, constitutional or otherwise, that has not been
raised and decided in the trial court. . . . The reason
for the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’’ (Citations omitted; internal quotations
marks omitted.) Blumberg Associates Worldwide, Inc.
v. Brown & Brown of Connecticut, Inc., supra, 142.
‘‘[W]ith respect to the propriety of a reviewing court
raising and deciding an issue that the parties themselves
have not raised . . . the reviewing court (1) must do
so when that issue implicates the court’s subject matter
jurisdiction, and (2) has the discretion to do so if (a)
exceptional circumstances exist that would justify
review of such an issue if raised by a party, (b) the
parties are given an opportunity to be heard on the
issue, and (c) there is no unfair prejudice to the party
against whom the issue is to be decided.’’ Id., 128.
Exceptional circumstances exist when ‘‘the interests of
justice, fairness, integrity of the courts and consistency
of the law significantly outweigh the interest in enforc-
ing procedural rules governing the preservation of
claims.’’4 Id., 160. To satisfy concerns of fundamental
fairness, ‘‘at a minimum, the parties must be provided
sufficient notice that the court intends to consider an
issue. It is implicit that an opportunity to be heard must
be a meaningful opportunity . . . . The parties must
be allowed time to review the record with that issue in
mind, to conduct research, and to prepare a response.’’
(Citation omitted; emphasis in original.) State v. Con-
nor, supra, 321 Conn. 372; see also CCT Communica-
tions, Inc. v. Zone Telecom, Inc., 327 Conn. 114, 126
n.9, 172 A.3d 1228 (2017) (‘‘Blumberg . . . calls for
supplemental briefing when a reviewing court raises an
unpreserved issue sua sponte’’ (emphasis in original)).
Additionally, ‘‘[p]rejudice may be found, for example,
when a party demonstrates that it would have presented
additional evidence or that it otherwise would have
proceeded differently if the claim had been raised at
trial.’’ Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 156–57.
In accordance with these principles, a reviewing
court has discretion to determine, on a case-by-case
basis, whether consideration of an unpreserved issue
sua sponte is appropriate. Moreover, ‘‘we will not
reverse the Appellate Court’s decision to raise [an
unpreserved issue] sua sponte simply because we might
have reached a different conclusion.’’ Id., 169. In other
words, we will not second-guess the Appellate Court’s
decision to raise an unpreserved issue, as long as that
decision is reasonable. Like this court, however, the
Appellate Court must articulate ‘‘specific reasons,
based on the exceptional circumstances of the case, to
justify a deviation from the general rule that unpre-
served claims will not be reviewed.’’ Id., 161.
The record reflects that the issue of waiver was not
raised by the parties in the habeas court or in the Appel-
late Court. The Appellate Court did not instruct the
parties to file supplemental briefs before or after oral
argument; nor did it direct the parties to be prepared
to discuss the waiver issue at oral argument. Cf. State
v. Connor, supra, 321 Conn. 371–72 (issuing order
instructing parties to be prepared to discuss certain
issue at oral argument may be sufficient to satisfy
requirement of meaningful opportunity to be heard).
The issue first arose in the opinion of the Appellate
Court and served as the dispositive ground on which the
Appellate Court affirmed the habeas court’s judgment.
Therefore, because the parties were not provided an
opportunity to be heard on waiver, it was improper for
the Appellate Court to raise and decide that issue. For
that reason, the judgment of the Appellate Court must
be reversed.
We briefly address the issue of the proper scope
of our remand order. The petitioner contends that we
should remand the case to the Appellate Court with
direction to consider only his ineffective assistance
claim because there are no exceptional circumstances
that would justify review of the unpreserved waiver
issue and also because he would be unfairly prejudiced
if that claim were considered for the first time on appeal.
The respondent disagrees with both of these conten-
tions and maintains that we should remand the case to
the Appellate Court with direction to allow the parties
to brief the waiver issue in that court. Although the
parties, in their briefs to this court, have addressed the
question of whether the waiver issue properly may be
raised sua sponte on appeal and, if so, whether the
petitioner’s Alford plea constituted a waiver of his inef-
fective assistance claim, we decline the petitioner’s invi-
tation to reach those issues. As we have explained, the
Appellate Court has discretion, within the parameters
set out in Blumberg, to determine whether to raise and
decide an issue that was never the subject of a claim
by the parties. Moreover, on remand, the Appellate
Court may elect simply to address the ineffective assis-
tance claim that the petitioner raised on appeal irrespec-
tive of any discretion it may have under Blumberg to
raise and decide the issue of waiver sua sponte. See
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 143 (‘‘a
reviewing court is not bound to consider claims that
were not raised at trial,’’ even if such review would be
in scope of reviewing court’s discretion [emphasis in
original]). Accordingly, we remand the case to the
Appellate Court so that it may decide, following briefing
by the parties and in a manner otherwise consistent
with our decision in Blumberg, how best to proceed.5
The judgment of the Appellate Court is reversed and
the case is remanded to that court for further proceed-
ings in accordance with this opinion.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Justices Palmer, McDonald, D’Auria, Mullins, Kahn and
Ecker. Although Justice McDonald was not present when the case was
argued before the court, he has read the briefs and appendices, and listened
to a recording of the oral argument prior to participating in this decision.
1
‘‘The second of the home invasion charges was added by the state immedi-
ately prior to the trial. All references herein to the home invasion charge
are to the first home invasion charge.’’ Diaz v. Commissioner of Correction,
supra, 185 Conn. App. 688 n.3.
2
‘‘See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970). A defendant who pleads guilty under the Alford doctrine
does not admit guilt but acknowledges that the state’s evidence against him
is so strong that he is prepared to accept the entry of a guilty plea.’’ (Internal
quotation marks omitted.) Diaz v. Commissioner of Correction, supra, 185
Conn. App. 687 n.1; accord State v. Simms, 211 Conn. 1, 3–4, 557 A.2d
914 (1989).
3
In his brief to this court, the respondent contends that he did not waive
or otherwise abandon a claim that the petitioner had waived his claim of
ineffective assistance because, in his return, which the respondent filed in
response to the petitioner’s amended habeas petition, he alleged that the
petitioner’s ineffective assistance claim should be dismissed for failure to
state a claim and on the basis of procedural default due to his Alford plea.
We express no view on this contention. Nevertheless, we do not understand
the respondent to be disputing that he did not distinctly raise a claim of
waiver in the habeas court.
4
In Blumberg, we provided a nonexhaustive list of circumstances that
may qualify as exceptional circumstances. See Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 158–60.
In doing so, we observed that the difficulty in formulating clear and consis-
tent rules governing the review of unpreserved claims ‘‘reflects the reality
that the decision to review an unpreserved claim is necessarily case specific,
and it is impossible to anticipate all of the circumstances that may frame
the presentation of an unpreserved claim.’’ Id., 160 n.31.
5
The petitioner, in reliance on State v. Connor, supra, 321 Conn. 350,
asserts that we should remand the case to the Appellate Court with direction
to consider only his claim of ineffective assistance because, as a matter of
law, he will be prejudiced if the Appellate Court considers the waiver issue.
That case is distinguishable from the present appeal. In Connor, we con-
cluded that the Appellate Court improperly decided the appeal against the
state on the basis of an unpreserved issue because it had failed to afford
the state an opportunity to be heard; id., 372; and we then remanded that
case to the Appellate Court with direction to consider only the issue that
the defendant raised on appeal before the Appellate Court. Id., 375. We
observed that, in accordance with Blumberg, ‘‘once [a] party makes a color-
able claim of . . . prejudice, the burden shifts to the other party to establish
that the first party will not be prejudiced by the reviewing court’s consider-
ation of the issue.’’ (Internal quotation marks omitted.) Id., 373–74. Because
the state made a colorable claim that it would be unfairly prejudiced by
consideration of the unpreserved issue and the defendant failed to advance
any rebuttal of that argument, we concluded that the defendant failed to
meet his burden of overcoming the presumption that the state was unfairly
prejudiced and, therefore, that it would be inappropriate for the Appellate
Court to have considered the unpreserved issue on remand. See id., 374.
By contrast, in the present case, although the petitioner claims that he will
be prejudiced by the Appellate Court’s consideration of the waiver issue on
remand, the respondent has offered counterarguments to that claim, and,
on remand, the Appellate Court will be able to assess whether review of
the waiver issue is appropriate. Furthermore, as we have noted, the Appellate
Court may choose to address the ineffective assistance claim that the habeas
court decided, regardless of whatever discretion it may have under Blumberg
to raise the waiver issue.