Bosque v. Commissioner of Correction ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
BOSQUE v. COMMISSIONER OF CORRECTION—DISSENT
ROBINSON, C. J., with whom MULLINS, J., joins,
dissenting. For the reasons stated in my dissenting opin-
ion in Banks v. Commissioner of Correction, 347 Conn.
335, 361–77, A.3d (2023) (Robinson, C. J., dis-
senting), also released today, I respectfully disagree
with the majority’s conclusion that General Statutes
§ 52-470 (g)1 permits appellate review of unpreserved
claims challenging a habeas court’s handling of a pro-
ceeding under either the plain error doctrine2 or State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015),3 despite a petitioner’s failure to
provide the habeas court with notice of the claims, so
long as those claims are nonfrivolous under Simms v.
Warden, 230 Conn. 608, 646 A.2d 126 (1994). Specifi-
cally, as I explained in detail in my dissenting opinion
in Banks, I believe that § 52-470 (g) bars appellate
review of unpreserved claims in uncertified appeals
under the plain error doctrine and Golding when a
petitioner fails to raise them before the habeas court
prior to or during the certification process. See gener-
ally Banks v. Commissioner of Correction, supra,
361–77 (Robinson, C. J., dissenting). Accordingly, I
respectfully dissent.
1
General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so cer-
tifies.’’
2
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party.’’ (Internal quotation marks omitted.) State
v. Blaine, 334 Conn. 298, 305, 221 A.3d 798 (2019).
3
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781(modifying third prong of Golding).