State v. Skipwith

 STATE OF CONNECTICUT v. JUSTIN SKIPWITH
(SC 19608)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
Robinson and D’Auria, Js.*
Syllabus
Pursuant to the victim’s rights amendment set forth in the state constitution
(Conn. Const., amend. XXIX [b]), in a criminal prosecution, the victim
has the right to make a statement to the court objecting to or supporting
any plea agreement prior to the court’s acceptance of that plea, and to
make a statement to the court at sentencing.
The plaintiff in error, whose daughter had died as a result of the defendant’s
criminal conduct, filed a writ of error in this court, claiming that the
trial court had improperly dismissed her motion to vacate the defendant’s
sentence. The plaintiff in error had not been afforded an opportunity
to object to the plea agreement between the defendant and the defendant
in error, the state’s attorney for the judicial district of Waterbury, or to
make a statement at the defendant’s sentencing. After learning that the
defendant had been sentenced, the plaintiff in error filed her motion to
vacate the defendant’s sentence on the ground that her rights under the
victim’s rights amendment had been violated. The trial court concluded
that the defendant’s sentence was not illegal and dismissed the motion
for lack of jurisdiction. After this court transferred the writ of error to
the Appellate Court, that court dismissed the writ of error, concluding
that the rule of practice (§ 43-22) providing that a court may correct an
illegal sentence or a sentence imposed in an illegal manner did not
authorize the trial court to vacate the defendant’s sentence. The Appel-
late Court reasoned that the plaintiff in error provided no authority
supporting the proposition that the defendant’s sentence was imposed
in an illegal manner because it had violated of the victim’s constitutional
rights. On the granting of certification, the plaintiff in error appealed
to this court, claiming that she was entitled to have the defendant’s
sentence vacated due to the fact that it was imposed in an illegal manner
because she had not been afforded her rights under the victim’s rights
amendment. The defendant in error claimed, inter alia, that this court
lacked jurisdiction over the writ of error because there was no express
constitutional or statutory provision granting either this court or the
Appellate Court jurisdiction over a writ of error seeking to enforce the
victim’s rights amendment. Held that this court had jurisdiction over
the writ of error and had the authority to transfer it to the Appellate
Court but upheld the Appellate Court’s dismissal of the writ of error
because it sought a form of relief that was barred by the victim’s rights
amendment: because a writ of error is a common-law remedy, the lack
of any express constitutional or statutory authorization for a victim to
file a writ of error from a ruling of the trial court implicating his or her
rights under the victim’s rights amendment did not affect this court’s
jurisdiction, as long as the victim fell within the class of persons entitled
to file a writ of error and no constitutional or statutory provision deprived
this court of jurisdiction; furthermore, the clauses in the victim’s rights
amendment providing that the legislature shall provide by law for its
enforcement and that it shall not be construed as creating a basis for
vacating a conviction or ground for appellate relief in any criminal case
did not deprive this court of jurisdiction, as the legislative history of
the amendment indicated that the legislature contemplated that victims
would be able to seek relief in the courts and that appellate courts
would have a role in interpreting and implementing the amendment,
and the bar on appellate relief did not deprive this court of jurisdiction
but, rather, prohibited this court from granting any relief that would
directly affect the judgment in a criminal case or otherwise abridge the
substantive rights of a defendant; moreover, although the plaintiff in
error had standing to file the writ of error to enforce her constitutional
rights, because she sought a form of relief that was barred by the
prohibition on appellate relief contained in the victim’s rights amend-
ment, specifically, an order requiring the trial court to vacate the defen-
dant’s sentence, this court upheld the Appellate Court’s dismissal of the
writ of error on this alternative ground.
(One justice concurring separately)
Argued April 5—officially released August 15, 2017
Procedural History
Writ of error from the decision of the Superior Court
in the judicial district of Waterbury, Fasano, Js., dis-
missing the plaintiff in error’s petition for a writ of
error coram nobis and dismissing the plaintiff in error’s
motion to vacate the defendant’s sentence, brought to
this court, which transferred the matter to the Appellate
Court, Gruendel, Alvord and Mullins, Js.; judgment dis-
missing the writ or error, from which the plaintiff in
error, on the granting of certification, appealed to this
court. Affirmed.
Jeffrey D. Brownstein, for the appellant (plaintiff in
error Tabatha Cornell).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Jason Germain, senior assistant state’s
attorney, for the appellee (defendant in error state’s
attorney for the judicial district of Waterbury).
Opinion
ROGERS, C. J. The question that we must answer in
this certified appeal is whether a crime victim who has
been deprived of her state constitutional rights to object
to a plea agreement between the state and the defendant
and to make a statement at the sentencing hearing is
entitled to have the defendant’s sentence vacated so
that she may attend a new sentencing hearing and give a
statement. The defendant, Justin Skipwith, was charged
with, inter alia, manslaughter in the second degree with
a motor vehicle after the vehicle that he was driving
struck and killed Brianna Washington, the daughter of
the plaintiff in error, Tabatha Cornell. Although the
plaintiff in error notified the defendant in error, the
state’s attorney for the judicial district of Waterbury
(state), that she was invoking her rights as a victim of
the crime pursuant to article first, § 8, of the Connecti-
cut constitution, as amended by articles seventeen and
twenty-nine of the amendments,1 she was not afforded
an opportunity to object to the plea agreement between
the defendant and the state or to make a statement
at the defendant’s sentencing hearing. Thereafter, the
plaintiff in error filed a motion to vacate the sentence,
which the trial court dismissed for lack of subject mat-
ter jurisdiction.2 The plaintiff in error then filed a writ
of error claiming that the trial court improperly dis-
missed her motion to vacate the defendant’s sentence,
naming the state as the defendant in error.3 See State
v. Skipwith, 159 Conn. App. 502, 503, 123 A.3d 104
(2015). The Appellate Court determined that the trial
court had properly concluded that it lacked jurisdiction
to entertain the motion to vacate and dismissed the
writ of error. Id., 512. We then granted the plaintiff in
error’s petition for certification to appeal.4 We affirm
the judgment of the Appellate Court on the alternative
ground that the writ of error must be dismissed on the
merits5 because it seeks a form of relief that is barred
by the victim’s rights amendment. Accordingly, we need
not reach the question of whether the Appellate Court
properly found that the trial court lacked jurisdiction
to entertain the plaintiff in error’s motion to vacate the
defendant’s sentence.
The undisputed facts of this case are set forth in the
opinion of the Appellate Court; see id., 503–506; and
need not be repeated here, as the state concedes that
the plaintiff in error was denied her right under article
first, § 8, as amended, to object to the plea and to give
a statement at the defendant’s sentencing. Conn. Const.,
amend. XXIX (b) (7) and (8). After learning that the
defendant had been sentenced, the plaintiff in error
filed a motion to vacate the sentence based on violations
of the victim’s rights amendment. The trial court con-
ducted a hearing on the motion, at which the plaintiff
in error and a family friend gave statements, and ulti-
mately dismissed the motion for lack of jurisdiction on
the ground that the sentence was not illegal. Id.,
505–506.
The plaintiff in error then filed this writ of error
challenging the decision of the trial court. The Appellate
Court concluded that the trial court properly had dis-
missed the motion to vacate the defendant’s sentence,
and then dismissed the writ of error on the merits. Id.,
512. The Appellate Court reasoned that Practice Book
§ 43-226 authorizes the trial court to ‘‘correct a sentence
imposed in an illegal manner,’’ and the plaintiff in error
had provided ‘‘no authority supporting the proposition
that a defendant’s sentence is imposed in an illegal
manner . . . when the sentencing proceeding was con-
ducted in violation of the victim’s constitutional right
to be present.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Id., 510–12. In addi-
tion, the Appellate Court observed that victims have
no statutory authority to seek to vacate a defendant’s
conviction. Id., 512. This certified appeal followed.
The plaintiff in error contends that, contrary to the
Appellate Court’s determination, because the defen-
dant’s sentence was imposed without affording her the
right under article first, § 8, as amended, to give a state-
ment at the defendant’s sentencing, the sentence was
‘‘imposed in an illegal manner’’ for purposes of Practice
Book § 43-22, and, therefore, she was entitled to have
the sentence vacated. The state contends that the Appel-
late Court correctly determined that the trial court had
properly dismissed the plaintiff in error’s motion to
vacate the defendant’s sentence and further claims,
essentially as an alternative ground for affirmance, that,
in the absence of any express constitutional or statutory
provision, both the Appellate Court and this court lack
jurisdiction to entertain a writ of error seeking to
enforce the provisions of the victim’s rights amend-
ment. We conclude that this court had jurisdiction over
the writ of error and, consequently, we had the authority
to transfer it to the Appellate Court.7 We also conclude,
however, that the writ of error must be dismissed on
the merits because it seeks a form of relief that is barred
by the victim’s rights amendment.8
Because it implicates this court’s appellate jurisdic-
tion, we first address the state’s claim that this court
lacks authority to entertain a writ of error seeking to
enforce the victim’s rights amendment because neither
the state constitution nor any statute expressly confers
such authority. This is a question of law over which
our review is plenary. See Pritchard v. Pritchard, 281
Conn. 262, 274–75, 914 A.2d 1025 (2007) (whether party
‘‘properly invoked the jurisdiction of the Appellate
Court is a question of law subject to plenary review’’).
In support of its contention that this court lacks juris-
diction over a writ of error seeking to enforce the vic-
tim’s rights amendment, the state relies primarily on
this court’s decision in State v. Gault, 304 Conn. 330,
39 A.3d 1105 (2012). In that case, the victim9 appealed
from an order of the trial court requiring that an affidavit
supporting the arrest warrant for the defendant, which
had been redacted to remove information that could
identify the victim, be unsealed. Id., 335–36. She con-
tended, among other things, that this order violated her
right under article first, § 8, as amended, to be treated
with fairness and respect throughout the criminal jus-
tice process. Id., 336; see also Conn. Const., amend.
XXIX (b) (1). The state claimed on appeal that, because
the victim was not a party to the criminal proceeding,
she had no standing to appeal. State v. Gault, supra,
333, 337–38. This court agreed with the state. Id., 338.
We observed in Gault that ‘‘except insofar as the consti-
tution bestows upon this court jurisdiction to hear cer-
tain cases . . . the subject matter jurisdiction of . . .
this court is governed by statute.’’ (Internal quotation
marks omitted.) Id., 339. We then noted that the victim’s
rights amendment did not contain a right to appeal from
a ruling by the trial court implicating the rights created
by that amendment. Id. We further noted that the statute
authorizing appeals, General Statutes § 52-263, pro-
vided that the remedy of appeal was available only to
parties to the case. Id., 342. Finally, we observed that,
although Public Acts 1998, No. 98-231, § 2, as amended
by Public Acts 2001, No. 01-211, § 12, codified at General
Statutes § 46a-13c (5), authorized the Office of the Vic-
tim Advocate to ‘‘[f]ile a limited special appearance in
any court proceeding for the purpose of advocating for
any right guaranteed [by the victim’s rights amendment
or] the general statutes,’’ the legislature did not intend
that victims would have full party status or the right to
appeal from rulings of the trial court. See State v. Gault,
supra, 347. Accordingly, we concluded that victims
were not parties with standing to appeal from an order
in a criminal case, and we dismissed the victim’s appeal.
Id., 348.
In the present case, the state contends that Gault
stands for the proposition that, because the victim’s
rights amendment contains no self-executing remedial
procedures; see id., 340–41; if the legislature has not
expressly provided a remedy by which the rights pro-
tected by that constitutional provision may be vindi-
cated, no such remedy exists.10 Our decision in Gault,
however, was premised on the principle that the right
of appeal is created purely by statute. See id., 339.
Because no statute provides victims with a right to
appeal from rulings of the trial court, no such right
exists. In contrast, a writ of error is a common-law
remedy. See, e.g., State v. McCahill, 261 Conn. 492,
499–500, 811 A.2d 667 (2002) (‘‘[t]he writ of error . . .
is a concept deeply rooted in our common law’’ and ‘‘the
right to bring a writ of error . . . exists independent of
[any] statutory authorization’’ [citations omitted; foot-
note omitted; internal quotation marks omitted]); State
v. Assuntino, 173 Conn. 104, 112, 376 A.2d 1091 (1977)
(‘‘The writ [of error] has long lain to this court . . .
in accordance with statutes which have been merely
declaratory of the common law. It is therefore con-
cluded that the writ, at common law, lies to this court
. . . .’’); State v. Caplan, 85 Conn. 618, 622, 84 A. 280
(1912) (‘‘[t]he writ of error is the common-law method
. . . of carrying up a cause from an inferior to a higher
court for the revision of questions of law’’). Thus, unlike
in Gault, the lack of any express constitutional or statu-
tory authorization for a victim to file a writ of error
from a ruling of the trial court implicating his or her
rights under the victim’s rights amendment does not
affect the victim’s right to file a writ of error or this
court’s jurisdiction to entertain it. Rather, in the absence
of any constitutional provision or statute depriving this
court of its common-law jurisdiction over writs of
error,11 this court has jurisdiction if a victim falls within
the class of persons who are entitled to file a writ
of error.
The state has not claimed that any statute deprives
this court of its jurisdiction over writs of error seeking
relief for a violation of the victim’s rights amendment,
and we conclude that nothing in the state constitution
does so. Article first, § 8, as amended, provides in rele-
vant part: ‘‘The general assembly shall provide by law
for the enforcement of this subsection. Nothing in this
subsection or in any law enacted pursuant to this sub-
section shall be construed as creating a basis for vacat-
ing a conviction or ground for appellate relief in any
criminal case.’’ Conn. Const., amend. XXIX (b). With
respect to the first quoted sentence, that provision
merely authorizes the legislature to enforce through
legislation the rights created by the constitutional provi-
sion. It does not abrogate the basic constitutional obli-
gation of courts to interpret and implement
constitutional provisions.12 See Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) (‘‘[i]t is
emphatically the province and duty of the judicial
department to say what the law is’’). Indeed, to the
extent that there is any ambiguity as to whether the
constitutional provision deprives courts of their author-
ity to adjudicate claims arising from the victim’s rights
amendment, the legislative history reveals that the legis-
lature expressly contemplated that victims would be
able to seek relief both in the trial court and in the
appellate courts.13
The second quoted sentence, providing that the vic-
tim’s rights amendment shall not be ‘‘construed as creat-
ing a basis for vacating a conviction or ground for
appellate relief in any criminal case’’; Conn. Const.,
amend. XXIX (b); also does not deprive the appellate
courts entirely of their authority to interpret and imple-
ment the constitutional provision. First, as we have
indicated, the legislative history of the provision clearly
indicates that the legislature contemplated that both
the trial courts and the appellate courts would have a
role in interpreting and implementing it. See footnote
13 of this opinion. Second, in ordinary usage, the phrase
‘‘appellate relief’’ connotes relief granted on appeal
from a judgment disposing of the case, not relief pro-
vided to a nonparty in connection with a collateral issue
that will not directly affect the substantive issues or
the ultimate disposition of the case. See State v. Moore,
158 Conn. 461, 463, 262 A.2d 166 (1969) (‘‘[a]n appeal
lies only from a final judgment, and there can be no
judgment in a criminal case until sentence is pro-
nounced’’). Indeed, the legislative history indicates that
the purpose of the provision barring ‘‘appellate relief’’
was to ensure that any relief provided would not deprive
defendants of their existing substantive rights; its pur-
pose was not to deprive victims of any appellate redress
for a violation of their rights, even when providing relief
would not affect the judgment or the rights of the defen-
dant.14 Third, we can perceive no reason why, before
the victim’s rights amendment was adopted, a victim
could not have obtained relief by filing a writ of error
in this court to vindicate rights conferred by chapter
968 of the General Statutes governing victim services,
including the right to present a statement to the prose-
cutor and the trial court prior to the acceptance of a
plea and the right to submit a statement to the prosecu-
tor before sentencing.15 See General Statutes § 54-203
(b) (7) (B) and (C). There is no evidence, and it would
be anomalous to conclude, that the victim’s rights
amendment was intended to eliminate preexisting
mechanisms for obtaining such relief from this court.
Rather, it is reasonable to conclude that the bar on
appellate relief was intended to be the constitutional
equivalent to General Statutes § 54-223, which provides
that the ‘‘[f]ailure to afford the victim of a crime any
of the rights provided pursuant to any provision of
the general statutes shall not constitute grounds for
vacating an otherwise lawful conviction or voiding an
otherwise lawful sentence or parole determination.’’16
We conclude, therefore, that the bar on appellate
relief set forth in article first, § 8, as amended, merely
prohibits this court from granting any relief that would
directly affect the judgment in a criminal case or other-
wise abridge the substantive rights of a defendant.17
Accordingly, we conclude that this provision does not
deprive this court of its jurisdiction over writs of error
arising from the victim’s rights amendment.
With this background in mind, we must address an
issue that we left unresolved in our decision in Gault.
Specifically, we stated in that case that it was unclear
whether the prohibition on appellate relief contained
in article first, § 8, as amended, ‘‘is intended to apply to
victims or only to criminal defendants.’’ State v. Gault,
supra, 304 Conn. 339–40 n.12. Our conclusion here that
the prohibition on appellate relief was intended to bar
any form of relief that would directly affect the judg-
ment or abridge the defendant’s rights makes it clear,
however, that the focus of the prohibition is on the
substance of the relief, not on the identity of the party
seeking the relief. Accordingly, we now conclude that
the prohibition was intended to apply to any person
seeking a prohibited form of relief, including victims.
Similarly, because the prohibition goes to the substance
of the relief sought, and not to the vehicle by which
the relief is sought, we conclude that, to the extent that
there is any doubt as to whether a writ of error is
technically a form of appellate relief in this context, the
constitutional prohibition imposes the same limitations
on writs of error that it would impose on appeals by
victims, if they were statutorily authorized. See State
v. Caplan, supra, 85 Conn. 622; see also State v. Salmon,
250 Conn. 147, 153–54, 735 A.2d 333 (1999) (writ of
error is proper vehicle for appellate review when party
is unable to appeal).
Thus, what our analysis also makes clear is that,
although the plaintiff in error has standing to file the
writ of error,18 she seeks a form of relief—an order
requiring the trial court to vacate the defendant’s sen-
tence—that is barred by the prohibition on appellate
relief contained in the victim’s rights amendment.
Although the victim’s rights amendment does not
deprive victims of their right to file a writ of error
to enforce their constitutional rights, it also does not
expand their rights to seek a form of appellate relief
that previously had been barred by statute. Because
victims were barred by § 54-223 from seeking to vacate
a criminal sentence for the violation of their rights when
the victim’s rights amendment was adopted; see foot-
note 16 of this opinion;19 we conclude that this form of
relief is barred, and, therefore, we affirm the judgment
of the Appellate Court on this alternative ground.20
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH, ESPINOSA,
ROBINSON and D’AURIA, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers, and Justices Palmer, Eveleigh,
McDonald, Espinosa, Robinson and D’Auria. Although Justice Espinosa was
not present when the case was argued before the court, she has read the
briefs and appendices, and listened to a recording of oral argument prior
to participating in this decision. The listing of justices reflects their seniority
status on this court as of the date of oral argument.
1
Article first, § 8, of the constitution of Connecticut, as amended by
articles seventeen and twenty-nine of the amendments, provides in relevant
part: ‘‘In all criminal prosecutions, a victim, as the general assembly may
define by law, shall have the following rights: (1) The right to be treated
with fairness and respect throughout the criminal justice process; (2) the
right to timely disposition of the case following arrest of the accused, pro-
vided no right of the accused is abridged; (3) the right to be reasonably
protected from the accused throughout the criminal justice process; (4) the
right to notification of court proceedings; (5) the right to attend the trial
and all other court proceedings the accused has the right to attend, unless
such person is to testify and the court determines that such person’s testi-
mony would be materially affected if such person hears other testimony;
(6) the right to communicate with the prosecution; (7) the right to object
to or support any plea agreement entered into by the accused and the
prosecution and to make a statement to the court prior to the acceptance
by the court of the plea of guilty or nolo contendere by the accused; (8)
the right to make a statement to the court at sentencing; (9) the right to
restitution which shall be enforceable in the same manner as any other
cause of action or as otherwise provided by law; and (10) the right to
information about the arrest, conviction, sentence, imprisonment and release
of the accused. The general assembly shall provide by law for the enforce-
ment of this subsection. Nothing in this subsection or in any law enacted
pursuant to this subsection shall be construed as creating a basis for vacating
a conviction or ground for appellate relief in any criminal case.’’ Hereinafter,
we refer to this provision as article first, § 8, as amended, or the victim’s
rights amendment.
2
In addition, the plaintiff in error filed a petition for a writ of error coram
nobis, which the trial court also dismissed. The Appellate Court concluded
that the trial court properly dismissed that petition; see State v. Skipwith,
159 Conn. App. 502, 512, 123 A.3d 104 (2015); and that ruling is not at issue
in this certified appeal.
3
The plaintiff in error filed the writ of error in this court, and we transferred
it to the Appellate Court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
4
We granted the petition for certification to appeal on the following issue:
‘‘Did the Appellate Court properly determine that the trial court properly
dismissed the plaintiff in error’s motion to vacate the defendant’s sentence
because it was not an illegal sentence?’’ State v. Skipwith, 320 Conn. 911,
128 A.3d 955 (2015). Upon review of the record and the claims raised before
the Appellate Court, we now conclude that the certified question is not an
adequate statement of the issue properly before this court. Accordingly, we
reformulate the certified question as follows: ‘‘Could the Appellate Court
grant the relief requested by the plaintiff in error? If so, did the Appellate
Court properly determine that the trial court properly dismissed the plaintiff
in error’s motion to vacate the defendant’s sentence because it was not an
illegal sentence?’’ See State v. Ouellette, 295 Conn. 173, 183–84, 989 A.2d
1048 (2010) (court may reformulate certified question to conform to issue
actually presented and to be decided on appeal).
5
For some time, this court and the Appellate Court have dismissed writs
of error that lack merit. See, e.g., Hardy v. Superior Court, 305 Conn. 824,
827, 48 A.3d 640 (2012); State v. Ross, 272 Conn. 577, 613, 863 A.2d 654
(2005); Ullmann v. State, 230 Conn. 698, 724, 647 A.2d 324 (1994); Sowell
v. DiCara, 161 Conn. App. 102, 122, 133, 127 A.3d 356, cert. denied, 320
Conn. 909, 128 A.3d 953 (2015); State v. Peay, 111 Conn. App. 427, 428, 959
A.2d 655 (2008), cert. denied, 291 Conn. 915, 970 A.2d 729 (2009); Daniels
v. Alander, 75 Conn. App. 864, 883, 818 A.2d 106 (2003), aff’d, 268 Conn.
320, 844 A.2d 182 (2004). For purposes of clarity, in this opinion we use the
phrase dismissed on the merits to distinguish that disposition from one
where the writ of error is dismissed on a jurisdictional ground.
6
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.’’
7
See footnote 3 of this opinion.
8
We therefore need not resolve the question of whether the defendant’s
sentence otherwise was imposed in an illegal manner for purposes of Prac-
tice Book § 43-22. Even if we were to assume that it was, we conclude that
the victim’s rights amendment prohibits the form of relief that the plaintiff
in error is seeking, namely, an order requiring the trial court to vacate the
defendant’s sentence.
9
The victim in Gault was not identified in order to protect her privacy.
See State v. Gault, supra, 304 Conn. 333.
10
We emphasize that this court did not hold in Gault that the provisions
of article first, § 8, as amended, expressly conferring rights on victims, are
not self-executing in the sense that they are not effective until the legislature
passes implementing legislation. See State v. Gault, supra, 304 Conn. 340
(constitutional provisions that are not self-executing are not effective until
implementing legislation is passed). We held only that the victim’s rights
amendment contains no self-executing provision conferring on victims the
right to appeal from rulings in a criminal case. Id., 341, 347. Indeed, the
state in the present case does not dispute that prosecutors and trial courts
have regularly afforded victims their rights under the victim’s rights amend-
ment, including those that have not been expressly implemented by statute.
The state has also consistently and forthrightly conceded that the failure
to afford the plaintiff in error her rights in the present case was a rare and
unfortunate exception to that general practice and violated the plaintiff in
error’s state constitutional rights, despite the fact that those rights are not
the subject of any implementing legislation. The state claims only that the
state constitution contains no self-executing provisions providing a judicial
remedy for such violations. Thus, properly understood, the state’s contention
is not that the victim’s rights amendment is not self-executing in its entirety;
rather, its contention is that claims that the self-executing provisions of the
amendment have been violated are nonjusticiable. See Vieth v. Jubelirer, 541
U.S. 267, 277, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004) (claim of unlawfulness
is nonjusticiable when it ‘‘involves no judicially enforceable rights’’). We
conclude that such claims are justiciable, but that the scope of the relief
that the courts can provide is limited.
11
We express no opinion here as to whether such a statute would pass
muster under the state constitution. See Banks v. Thomas, 241 Conn. 569,
585 n.16, 698 A.2d 268 (1997) (because court rejected claim that statute had
limited court’s jurisdiction over writs of error, court was not required to
‘‘determine whether such a bar would be a constitutionally impermissible
encroachment upon this court’s authority to entertain a writ of error’’); State
v. Assuntino, supra, 173 Conn. 110 (because legislature had not attempted
to abrogate common-law writ of error by statute, it was ‘‘unnecessary for
this court to consider whether the jurisdiction to hear such a writ is an
essential attribute of the constitutional role of this court’’); see also Moore
v. Ganim, 233 Conn. 557, 573, 660 A.2d 742 (1995) (‘‘article first, § 10, [of
the Connecticut constitution] prohibits the legislature from abolishing or
significantly limiting common law and certain statutory rights that were
redressable in court as of 1818’’ [footnote omitted]).
12
In this regard, we note that § 5 of the fourteenth amendment to the
United States constitution, providing that ‘‘[t]he Congress shall have power
to enforce, by appropriate legislation, the provisions of this article,’’ has
never been construed to deprive the courts of their authority to interpret
and implement that amendment.
13
See 39 H.R. Proc., Pt. 9, 1996 Sess., p. 2833, remarks of Representative
Ellen Scalettar (proposed constitutional amendment ‘‘really gives the courts
the ability to be the primary interpreter of what the obligations of the state
are, and in certain ways we are giving up our power to do that and giving
it to the courts’’); id., p. 2837, remarks of Representative Michael P. Lawlor
(explaining that remedy for victim who was deprived of right created by
proposed amendment ‘‘would be for an appellate court or a trial court to
decide what the state’s obligation is under the terms of the constitutional
amendment’’); id., p. 2872, remarks of Representative Dale W. Radcliffe (‘‘[i]t
is naturally left to a court to interpret sections of a constitution’’); id., p.
2873, remarks of Representative Marie L. Kirkley-Bey (‘‘we’re passing a piece
of paper onto a judicial system that can therefore incorporate and determine
the law’’).
14
See 39 S. Proc., Pt. 6, 1996 Sess., p. 1991, remarks of Senator Martin M.
Looney (rights created by proposed amendment ‘‘directly conflict with those
of the defendant and fashioning a remedy for one without affecting the
rights of the other would be extremely difficult’’); 39 S. Proc., Pt. 10, 1996
Sess., p. 3247, remarks of Senator Thomas F. Upson (clarifying that purpose
of provision prohibiting vacation of conviction and barring appellate relief
was to ensure that no right of defendant was abridged); 39 H.R. Proc., Pt.
9, 1996 Sess., p. 2817, remarks of Representative Michael P. Lawlor (proposed
amendment ‘‘is not intended to deprive any person of any liberty right that
they have under the federal or state constitution’’); 39 H.R. Proc., Pt. 9,
1996 Sess., p. 2840, remarks of Representative Michael P. Lawlor (proposed
amendment ‘‘doesn’t deprive any liberty or due process rights of any person
who is a citizen of the state who might be accused of a crime’’).
15
General Statutes § 54-224 provides that the state and its agents cannot
be held liable for damages for the failure to afford a victim any rights
protected by the General Statutes. That statute does not bar victims, how-
ever, from seeking to enforce their rights.
16
Indeed, the legislative history of the victim’s rights amendment indicates
that the intent of the amendment was to give constitutional status to the
statutory rights that victims already had. See 39 H.R. Proc., Pt. 9, 1996 Sess.,
p. 2817, remarks of Representative Michael P. Lawlor (‘‘[the amendment]
only provides rights to victims of crime as they’re defined in our statute[s]’’);
id., p. 2830, remarks of Representative Michael P. Lawlor (‘‘everything in
the amendment is something that’s already law in the state of Connecticut’’).
Section 54-223 was enacted in 1986, ten years before the victim’s rights
amendment was adopted. See 1986 Public Acts, No. 86-401, §§ 3, 7.
17
We recognize that this conclusion severely limits the relief that is avail-
able to victims for violations of their constitutional rights. Because it is not
clear, however, that the bar on appellate relief that would affect the judgment
or abridge a defendant’s rights effectively bars all appellate relief, we cannot
conclude at this juncture that it deprives this court of jurisdiction over writs
of error arising from the victim’s rights amendment. Accordingly, we leave
it for another day to resolve the question of whether, if a trial court failed
to comply with the provisions of article first, § 8, as amended, the victim
could file an interlocutory writ of error before the plea was entered or the
defendant was sentenced, seeking an order requiring the trial court to com-
ply, provided that the victim could establish that the criteria for an appealable
interlocutory order under State v. Curcio 191 Conn. 27, 31, 463 A.2d 566
(1983), were met and that granting relief would not abridge any of the
defendant’s existing rights, including the right to a speedy trial. See, e.g.,
Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 755–56,
48 A.3d 16 (2012) (this court had jurisdiction over writ of error challenging
interlocutory discovery order that satisfied criteria for appealable final judg-
ment under Curcio).
18
The common-law requirements for standing to file a writ of error are
now codified in Practice Book § 72-1 (a). See State v. Rupar, 293 Conn.
489, 501–502, 978 A.2d 502 (2009) (concluding that plaintiff in error who
had satisfied requirements of § 72-1 had standing to file writ of error). Section
72-1 provides in relevant part: ‘‘(a) Writs of error for errors in matters of
law only may be brought from a final judgment of the superior court to the
supreme court in the following cases: (1) a decision binding on an aggrieved
nonparty . . . and (4) as otherwise necessary or appropriate in aid of its
jurisdiction and agreeable to the usages and principles of law.
‘‘(b) No writ of error may be brought in any civil or criminal proceeding
for the correction of any error where (1) the error might have been reviewed
by process of appeal, or by way of certification, or (2) the parties, by failure
timely to seek a transfer or otherwise, have consented to have the case
determined by a court or tribunal from whose judgment there is no right
of appeal or opportunity for certification.’’
The plaintiff in error in the present case meets these requirements because
she has raised a pure question of law from a final judgment of the Superior
Court that is binding on her and by which she is aggrieved, namely, the
ruling of the trial court dismissing her motion to vacate the defendant’s
sentence. In addition, under State v. Gault, supra, 304 Conn. 347, she has
no right to appeal from that decision, and she did not consent to have the
issue finally decided by the trial court.
19
See also 39 H. R. Proc., Pt. 9, 1996 Sess., p. 2819, remarks of Representa-
tive Michael P. Lawlor (‘‘[i]t is certainly not the intent [of the proposed
amendment] to provide a veto power to a victim of a crime’’).
20
But see Kenna v. United States District Court, 435 F.3d 1011, 1017 (9th
Cir. 2006) (when trial court denied victim his right to give statement at
defendant’s sentencing hearing and victim filed writ of mandamus as author-
ized by federal law, reviewing court concluded that trial court ‘‘must avoid
upsetting constitutionally protected rights, but it must also be cognizant
that the only way to give effect to [the victim’s] right to speak . . . is to
vacate the sentence and hold a new sentencing hearing’’); State v. Barrett,
350 Or. 390, 406–407, 255 P.3d 472 (2011) (when victim was denied right to
be heard at defendant’s sentencing and appealed as authorized by statute
from trial court’s ruling that there was no remedy for violation, reviewing
court concluded that vacating defendant’s sentence and conducting new
sentencing hearing at which defendant could receive harsher sentence did
not violate defendant’s double jeopardy rights); State v. Casey, 44 P.3d 756,
765–66 (Utah 2002) (when victim was denied right to make statement at plea
hearing, trial court properly determined that remedy was to ‘‘ ‘informally’ ’’
reopen the plea hearing at sentencing and accept testimony from victim).
These cases, however, are distinguishable from the present case. Neither
Kenna nor Barrett involved constitutional provisions barring appellate relief
that would affect the judgment. The constitutional provision at issue in
Casey barred ‘‘relief from any criminal judgment’’; see State v. Casey, supra,
761 n.5; but relief was granted in that case before the defendant was sen-
tenced. Because we conclude in the present case that an order vacating the
defendant’s sentence would affect the judgment in violation of the state
constitutional prohibition on appellate relief, we need not determine whether
doing so would violate the defendant’s double jeopardy or other substan-
tive rights.