State v. Elson

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STATE OF CONNECTICUT v. ZACHARY JAY ELSON
(SC 18737)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and
Espinosa, Js.*
Argued September 24, 2012—officially released June 3, 2014
Hubert J. Santos, with whom, on the brief, were Hope
C. Seeley, Benjamin B. Adams and Jessica M. Santos,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Warren C. Murray, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
NORCOTT, J. This certified appeal raises several sig-
nificant issues concerning the review of unpreserved
claims under both State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), and our supervisory author-
ity over the administration of justice, in connection with
the well established constitutional principle that ‘‘the
[a]ugmentation of sentence based on a defendant’s deci-
sion to stand on [his or her] right to put the [g]overn-
ment to its proof rather than plead guilty is clearly
improper.’’ (Internal quotation marks omitted.) State
v. Kelly, 256 Conn. 23, 81, 770 A.2d 908 (2001). The
defendant, Zachary Jay Elson, appeals, upon our grant
of his petition for certification,1 from the judgment of
the Appellate Court affirming the judgment of the trial
court, rendered after a jury trial, convicting him of
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1), unlawful restraint in the first
degree in violation of General Statutes § 53a-95 (a),
and committing an offense while on pretrial release in
violation of General Statutes § 53a-40b (1).2 State v.
Elson, 125 Conn. App. 328, 331, 9 A.3d 731 (2010) (en
banc). The defendant claims, inter alia, that: (1) the
Appellate Court improperly declined to review, under
Golding, his unpreserved claim that the trial court
improperly penalized him for exercising his right to
a jury trial, as indicated by the court’s comments at
sentencing; and (2) given the adverse effect of such
comments on the public perception of our criminal
justice system, this court should exercise its supervi-
sory authority to vacate his sentence and remand the
case for resentencing. Because we overrule the require-
ment, articulated in, inter alia, State v. Ramos, 261 Conn.
156, 171, 801 A.2d 788 (2002), that a party must ‘‘affirma-
tively request’’ Golding review in its main brief in order
to receive appellate review of unpreserved constitu-
tional claims, we conclude that the Appellate Court
improperly declined to review the defendant’s constitu-
tional claims on that ground. We then reach the merits
of the defendant’s constitutional claims and conclude
that under State v. Kelly, supra, 81–82, the defendant
has not established that the trial court penalized him
for exercising his right to a jury trial. Finally, however,
we agree with the defendant that the use of our supervi-
sory authority is warranted in order to prevent the
adverse implications on the public’s perception of the
procedural fairness of the criminal justice system that
arise when a trial judge refers to, and could appear to
have considered, a defendant’s decision to exercise his
right to a trial. Accordingly, we reverse in part the
judgment of the Appellate Court.
The record and the Appellate Court opinion set forth
the following relevant facts and procedural history. On
September 3, 2004, the defendant, who was intoxicated,
entered a classroom at Western Connecticut State Uni-
versity and made a romantic overture toward the victim,
who was a student working alone on an art project.
State v. Elson, supra, 125 Conn. App. 331–33. After the
victim rebuffed him, the defendant left the classroom,
only to return shortly thereafter, threaten her with a
knife and then physically assault her, causing numerous
physical injuries to her fingers, right hand, arm and face,
some of which required surgical treatment.3 Id., 332–34.
The state subsequently charged the defendant with
assault in the first degree in violation of § 53a-59 (a)
(1), attempt to commit assault in the first degree in
violation of General Statutes §§ 53a-49 and 53a-59 (a)
(1), unlawful restraint in the first degree in violation of
§ 53a-95 (a), and committing an offense while on pretrial
release in violation of § 53a-40b (1). After trial, the jury
returned a verdict of guilty on the charges of assault
in the first degree and unlawful restraint in the first
degree.4 After the jury returned its verdict, the defen-
dant entered a plea of guilty on the charge of committing
an offense while on pretrial release. The trial court
subsequently rendered judgment in accordance with
the jury’s verdict and the defendant’s plea.
Thereafter, the trial court conducted a sentencing
proceeding, which forms the basis for the claims in
this certified appeal. ‘‘At the commencement of the
proceeding, the prosecutor addressed the court, ulti-
mately recommending a total effective sentence of
thirty-five years incarceration, suspended after twenty-
five years, followed by five years probation with special
conditions. Thereafter, the victim read an impact state-
ment she had written.5 The defendant’s attorney
addressed the court, suggesting that the court consider
factors that supported a lenient sentence. The court
listened to statements made by a family friend of the
defendant as well as the defendant’s father. The defen-
dant exercised his right of allocution, expressing
remorse for the criminal conduct underlying his convic-
tions. He stated in relevant part: ‘I’d like to apologize
to [the victim] and her family . . . . I’ve hurt you, I’ve
terrified you, and I’ve destructed your sense of security,
viciously. What I did was horrible, and from the bottom
of my heart I’m so sorry for what I did to you and your
family. I know I probably can’t make it okay right now,
but I’m going to do my best. And, again, I’m just so
sorry. I’d also like to apologize to the court and also [to]
the [Western Connecticut State University] community
because in violating one of their student’s safety and
security—and I violated all of this. I’d also like to apolo-
gize to my family. I wish I hadn’t done this to any
of them.’
‘‘Thereafter, the court stated that it would ‘make
some introductory remarks before [proceeding] to for-
mal sentencing.’ At that time, the court indicated that
it had considered a letter submitted to the court from
the defendant’s mother and the statement of the defen-
dant’s father. The court then stated: ‘We’ve all heard
the defendant’s apology. I don’t know how sincere it
is, but it is certainly unfortunate that it comes so
late in the process. If the defendant had been truly
apologetic, he wouldn’t have put the victim through
the trial. To a large extent, it seems to me that the
defendant’s apology represents thinking of himself
rather than the victim.’
‘‘The court discussed the victim’s ‘credible’ trial testi-
mony, noting that ‘[t]here is no reason in my mind to
doubt her testimony that the defendant came at her
from behind with a knife to her throat.’ The court stated:
‘A person intends the natural consequences of his acts.
And the natural consequences of that act is to cause
serious physical injury. [The] [d]efendant came about
six inches away from killing this young woman or com-
pletely ruining her life; for that, I suppose, the victim
and the defendant should both consider themselves for-
tunate.
‘‘ ‘As the state correctly points out, the victim was
totally blameless. This is not a case in which the victim
knew the defendant, provoked the defendant, enticed
the defendant or did anything to threaten the defendant.
The victim bears no part of the blame for this incident.
Despite that, the defendant threatened to rob [the vic-
tim] of the prime of her life. He threatened to rob the
victim of being a wife, a mother, an adult daughter, a
college educated artist or a person with some other
promising career. Thus, it is fully appropriate that I take
away the defendant’s liberty during the prime of his life.
‘‘ ‘The defendant’s defense was intoxication. There is
no question that the defendant had been drinking to
an excess on September 3, 2004. But the defendant is
responsible for his own actions. He had been through
a well-known alcohol rehabilitation program, undoubt-
edly paid for by his caring parents, and thrown away
all the good that this program had done him.
‘‘ ‘On the day in question, the defendant put a . . .
knife with a six inch blade in his pants as he walked
into [Western Connecticut State University]. Why did
he do that?
‘‘ ‘Even if the defendant had drunk to an excess, there
must be some deep-seated anger within the defendant
that explains this act of rage and violence, which the
state aptly points out appears to be part of a pattern.
This, in my view, makes the defendant a dangerous
person, one from whom the victim, [Western Connecti-
cut State University], and society should be protected.
‘‘ ‘It also points out, incidentally, the dangers of sub-
stance abuse. There’s no evidence, I don’t think, that
the defendant was using drugs on the day in question,
but he does have a history of drug and alcohol abuse
and . . . it has long been clear to me that drug and
alcohol abuse is not a victimless crime. And today’s
sentencing provides graphic evidence of that.
‘‘ ‘Furthermore, intoxication simply does not explain
his statement to the police and his testimony in court
that this was an accident. Did the accident supposedly
occur because of intoxication? I never understood that.
But I do know that this was no accident. I do not believe
the defendant’s testimony that he just happened to get
poked in the leg with his knife, that he just happened
to pull the knife out at that time and that [the victim]
just happened to turn around at that time. I believe the
defendant gave a false explanation to the police, that
he testified falsely in court and that he essentially
obstructed justice in doing so. And this is an aggravat-
ing factor.’
‘‘The court observed that the defendant had commit-
ted the crimes at issue while he was released on bail
after having been charged with other felony crimes.
The court stated: ‘A judge in Norwalk trusted the defen-
dant and released him. The defendant abused that trust
in the worst way. No judge has a crystal ball. We cannot
tell for certain when we make bail decisions who will
commit crimes while on bail and who will not. We make
mistakes. But if we do not punish those who do commit
crimes while given a privilege of release, we will not
be doing all we can to deter others from abusing that
privilege.
‘‘ ‘By committing these crimes while out on bail, the
defendant not only committed a crime against the victim
but also committed a crime against the court. The defen-
dant broke his word to the court and showed disrespect
for the law. The only mitigating factor I can find in
this situation is that the defendant at least admitted
the bail status violations.6 . . . [I]n due course, it will
be entirely up to the judge in Norwalk to decide how
to sentence in those cases. . . . [T]he current convic-
tions are separate offenses from the ones in the Norwalk
[court] . . . .’ Thereafter, the court sentenced the
defendant on each count, imposing a total effective
sentence of twenty-five years imprisonment, execution
suspended after twenty years, followed by five years
of probation with special conditions. The sentencing
proceeding concluded without any additional com-
ments by defense counsel.’’ (Emphasis added; footnotes
added.) Id., 335–38.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, inter alia,7 that
the trial court ‘‘deprived him of his right to due process
when it considered improper factors at the time of
sentencing.’’ State v. Elson, 116 Conn. App. 196, 235, 975
A.2d 678 (2009). Specifically, ‘‘[t]he defendant argue[d]
that the court improperly considered (1) the fact that he
proceeded to trial rather than accepting a plea bargain
offered by the state and (2) the knife that was a full
exhibit at the trial.’’8 Id. In affirming the judgment of
the trial court, the three judge panel of the Appellate
Court that initially heard the defendant’s appeal,
Bishop, Harper and Dupont, Js., split three ways in
addressing the sentencing claim. Id., 235–36. Judge
Harper, authoring the lead opinion for the panel,
declined to review the defendant’s sentencing claim,
concluding that it was unpreserved and that he had not
properly made an ‘‘affirmative request’’ for review in
his main brief under State v. Golding, supra, 213 Conn.
239–40. State v. Elson, supra, 116 Conn. App. 239–40.
Judge Dupont concurred in the result, concluding that,
although the defendant’s sentencing claim was review-
able under the application of Golding in State v. Wright,
114 Conn. App. 448, 463, 969 A.2d 827 (2009), resentenc-
ing nevertheless was not required. State v. Elson, supra,
116 Conn. App. 241, 245–46. Judge Bishop dissented in
part, agreeing with Judge Harper’s conclusion as to
reviewability under Golding, but concluding ultimately
that ‘‘the defendant’s sentencing claim raises a troubling
issue warranting resentencing’’ under the Appellate
Court’s supervisory powers over the administration of
justice. Id., 246–47.
Thereafter, the Appellate Court granted the defen-
dant’s motion for reargument and reconsideration en
banc. State v. Elson, supra, 125 Conn. App. 331. The
en banc Appellate Court majority concluded that the
defendant had not properly made an ‘‘[affirmative]
request’’ for Golding review of his unpreserved sentenc-
ing claim in his main brief and, therefore, declined to
review that claim. Id., 356. In so concluding, the en
banc Appellate Court interpreted that requirement to
‘‘eschew the notion that it necessarily includes the use
of talismanic words or phrases, such as a citation to the
Golding opinion or a recitation of any specific language
from that opinion in an analysis of the reviewability of
the claim.’’ Id., 353. Rather, relying on our decision in
In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009),
the Appellate Court determined that ‘‘what is required
in making an affirmative request for review, is that a
party present an analysis consistent with the principles
codified in Golding for the review of unpreserved
claims of constitutional magnitude. As a starting point,
a party seeking review of such claim must alert the
reviewing court to the fact that the claim is unpreserved
or that there is a possibility that the reviewing court
may determine that the claim is not properly preserved
for appellate review. Thereafter, the party must, in its
main brief, present an analysis based in law and tailored
to the unique circumstances surrounding the claim that,
if the reviewing court determines that the claim is not
preserved, the claim nevertheless is reviewable on
appeal because (1) the record is adequate to review the
claim and (2) the claim is of constitutional magnitude,
alleging the deprivation of a fundamental constitutional
right.’’ (Footnote omitted.) State v. Elson, supra, 125
Conn. App. 354. Further, the Appellate Court overruled
its decision in State v. Wright, supra, 114 Conn. App.
463, to the extent that it supported the reviewability of
the defendant’s claims. State v. Elson, supra, 125 Conn.
App. 359.
The Appellate Court majority then declined to use
its supervisory authority over the administration of jus-
tice to reach the defendant’s claims, noting that the
defendant did not make that request until his reply brief
and, therein, only skeletally. Id., 359–60. In dicta, the
Appellate Court majority relied on State v. Kelly, supra,
256 Conn. 79–84, and concluded that the ‘‘totality of
the circumstances’’ indicated that the trial court had
not violated the defendant’s due process rights by penal-
izing him at sentencing for having elected to stand trial.9
State v. Elson, supra, 125 Conn. App. 365–66. The Appel-
late Court’s en banc reconsideration of this case, which
again affirmed the judgment of the trial court, resulted
in numerous separate opinions, including an opinion
concurring in part and dissenting in part issued by Judge
Bishop; id., 388; a concurring opinion issued by Judge
Robinson; id., 369; and an opinion concurring in part
issued by Judge Dupont.10 Id., 378. This certified appeal
followed. See footnote 1 of this opinion.
Originally, we granted certification in this appeal
solely to consider whether the defendant’s briefing of
his unpreserved sentencing claim in the Appellate Court
constituted an adequate request for Golding review.
See id. Following oral argument, however, we ordered
the parties, sua sponte, to submit simultaneous supple-
mental briefs on the following issues, both of which
had been raised in the defendant’s petition for certifica-
tion, but were not previously granted certification by
this court: (1) ‘‘Should the doctrine of State v. Golding,
[supra, 213 Conn. 233], apply to an unpreserved claim
that a trial judge commented improperly during sen-
tencing on the defendant’s exercise of his constitutional
right to a jury trial?’’ and (2) ‘‘Should this court exercise
its supervisory powers in the present matter to vacate
the defendant’s sentence and remand the case to the
trial court for resentencing?’’
For reasons explained in greater detail subsequently
in this opinion, we conclude that the defendant’s brief-
ing of his unpreserved sentencing claim in the Appellate
Court constituted an adequate request for Golding
review, because we overrule the ‘‘affirmative request’’
requirement as articulated in, inter alia, State v. Ramos,
supra, 261 Conn. 171.11 We further conclude that the
defendant failed to carry his burden, under State v.
Kelly, supra, 256 Conn. 81–82, of proving that the totality
of the circumstances demonstrates that the trial court’s
comments at sentencing indicated that it had penalized
him for exercising his right to a jury trial by lengthening
his sentence. Finally, we answer the second supplemen-
tal issue in the affirmative and exercise our supervisory
powers to order resentencing in the present case to
prevent the potentially deleterious effect of such
remarks by a trial court on the public’s perception of
the procedural fairness of the criminal justice system.
I
CONSTITUTIONAL CLAIMS
We begin with the defendant’s constitutional claims
that we originally certified, namely, that: (1) the Appel-
late Court improperly concluded that his claims were
not reviewable under State v. Golding, supra, 213 Conn.
239–40, because he had failed to make the necessary
‘‘affirmative request’’ for such review; and (2) Golding
review and relief was necessary because ‘‘the trial
court’s consideration of ‘put[ting the victim through
the trial’ infringed on the defendant’s state and federal
constitutional rights, and warrants a remand from this
court for resentencing.’’
A
Affirmative Request Requirement
With respect to reviewability, the defendant contends
that the Appellate Court should have reviewed his claim
because his briefing demonstrated that the first two
prongs of State v. Golding, supra, 213 Conn. 239–40,
which pertain to reviewability, had been satisfied. The
defendant further contends that the line of cases estab-
lishing the ‘‘affirmative request’’ rule, as interpreted by
the en banc Appellate Court, ‘‘unduly restrict[s] a defen-
dant’s ability to present legitimate but unpreserved
claims of a deprivation of a fundamental constitutional
right.’’ He relies on Judge Dupont’s concurrence in the
present case, and the Appellate Court’s opinion in State
v. Wright, supra, 114 Conn. App. 448, as establishing
that the affirmative request requirement has a ‘‘shaky
foundation’’ in this court’s case law. He further argues
that, consistent with the concurring opinion authored
by Justice Palmer in Johnson v. Commissioner of Cor-
rection, 288 Conn. 53, 68, 951 A.2d 520 (2008), we should
interpret the affirmative request requirement consis-
tently with Wright; see State v. Wright, supra, 463–64;
to avoid ‘‘unjust results, and diminish[ing] a defendant’s
right to effective appellate review of otherwise fully-
analyzed claims.’’ Thus, the defendant contends that
we should review unpreserved constitutional claims
pursuant to Golding, regardless of a brief’s failure to
request that level of review by name or by tracking the
party’s entitlement thereto, if the requesting party has
‘‘present[ed] a record that is [adequate] for review and
affirmatively [demonstrates] that his claim is indeed a
violation of a fundamental constitutional right.’’ (Inter-
nal quotation marks omitted.) State v. Wright, supra,
463.
In response, the state endorses the en banc Appellate
Court’s interpretation of the ‘‘affirmative request’’
requirement as ‘‘embod[ying] long-standing and well-
settled principles of notice and adequate briefing,’’ and
contends that the approach in Wright, advocated by
the defendant, is deficient because it does not alert the
court of appeal that review of an unpreserved claim is
being requested. The state further contends that Wright:
(1) ‘‘fails to draw any meaningful distinction between
preserved and unpreserved claims of error,’’ thus
‘‘remov[ing] any meaningful consequence of not con-
temporaneously objecting to a perceived error at trial’’;
and (2) ‘‘effectively transforms the defendant’s burden
of demonstrating his entitlement to extraordinary
review into the state’s burden of disproving such entitle-
ment.’’ Finally, the state contends that the rule adopted
by the en banc Appellate Court in the present case has
the salutary effect of being consistent with this court’s
approach ‘‘in cases in which a party seeks review of a
state constitutional claim’’ under State v. Geisler, 222
Conn. 672, 684–85, 610 A.2d 1225 (1992). We agree,
however, with the defendant, and conclude that the
analysis contained within State v. Wright, supra, 114
Conn. App. 448, embodies the proper approach to
determining the reviewability of claims under Golding.
We further conclude that, because the approach embod-
ied in Wright is inconsistent with the affirmative request
requirement as it has been implemented in this court’s
case law, the decision of this court in State v. Ramos,
supra, 261 Conn. 171, along with its progeny, should be
overruled insofar as those cases require a request for
Golding review to be made in some particular manner
beyond the adequate briefing of a constitutional claim.12
Consideration of the continuing vitality of the affir-
mative request requirement must begin with a review
of what the Appellate Court aptly described as the ‘‘bed-
rock principle of appellate jurisprudence’’ that this
court generally will not review unpreserved claims
made for the first time on appeal.’’ State v. Elson, supra,
125 Conn. App. 340–41. Specifically, in State v. Evans,
165 Conn. 61, 69, 327 A.2d 576 (1973), this court stated
that ‘‘[o]nly in [the] most exceptional circumstances
can and will this court consider a claim, constitutional
or otherwise, that has not been raised and decided in
the trial court.’’ One of those ‘‘ ‘exceptional circum-
stances’ ’’ is ‘‘where the record adequately supports a
claim that a litigant has clearly been deprived of a funda-
mental constitutional right and a fair trial.’’ Id., 70.
As this court later recognized, however, the Evans
standard lent itself to ‘‘inconsistent application’’ as evi-
denced by the ‘‘disparate approaches’’ by this court and
the Appellate Court to ‘‘the Evans criteria.’’ State v.
Golding, supra, 213 Conn. 239. Accordingly, in Golding,
this court refined the Evans framework, articulating
‘‘guidelines designed to facilitate a less burdensome,
more uniform application of the . . . Evans standard
. . . .’’ Id. Specifically, Golding held that ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation clearly exists and
clearly 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 omit-
ted; footnote omitted.) Id., 239–40. ‘‘[T]he first two
[prongs of Golding] involve a determination of whether
the claim is reviewable’’; (internal quotation marks
omitted) State v. Whitford, 260 Conn. 610, 621, 799
A.2d 1034 (2002); and under those two prongs, ‘‘[t]he
defendant bears the responsibility for providing a
record that is adequate for review of his claim of consti-
tutional error.’’ State v. Golding, supra, 240.
We first alluded to an expansion of the defendant’s
burden to demonstrate entitlement to review under
Golding in State v. Waz, 240 Conn. 365, 692 A.2d 1217
(1997), which involved an unpreserved state constitu-
tional claim. The state argued that this court should
decline to review the claim because the defendant made
‘‘no express reference to the guidelines governing our
review of unpreserved constitutional claims set forth
in State v. Golding [supra, 213 Conn. 239–40].’’ State v.
Waz, supra, 371 n.11. Notwithstanding the defendant’s
‘‘failure to invoke our review under the criteria specified
in Golding,’’ we reached the merits of the claim, but
‘‘admonish[ed] defendants who seek consideration of
unpreserved constitutional claims . . . that they bear
the burden of establishing their entitlement to such
review under the guidelines enumerated in Golding.’’13
Id. Thus, in Waz this court appeared to read the first
two prongs of Golding not merely as setting forth uni-
form rules governing entitlement to review of unpre-
served constitutional claims, but also as requiring a
defendant specifically to invoke that entitlement in his
brief—as opposed to briefing only the merits of the
constitutional claim itself—unless, as in Waz, the record
otherwise is clear that the defendant is entitled to
review of that claim. Subsequent to Waz, this court
declined on multiple occasions to reach unpreserved
constitutional claims when the appellant expressly
failed to seek review under Golding. See, e.g., State v.
Andresen, 256 Conn. 313, 323–24, 773 A.2d 328 (2001)
(sufficiency of evidence to support conviction for sell-
ing unregistered securities); Ghant v. Commissioner
of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000)
(claim of state constitutional right to appeal).
Subsequently, in State v. Ramos, supra, 261 Conn.
171, the affirmative request requirement made its
appearance for the first time in our case law. In Ramos,
we quoted this passage from Waz, namely, that defen-
dants ‘‘bear the burden of establishing their entitlement
to such review under the guidelines enumerated in
Golding’’; (internal quotation marks omitted) id., quot-
ing State v. Waz, supra, 240 Conn. 371 n.11; in support
of the proposition that a ‘‘party is obligated . . . affirm-
atively to request review under’’ either Golding or the
plain error doctrine. (Emphasis added.) State v. Ramos,
supra, 171. In Ramos, we then declined to review the
defendant’s ‘‘claim that the trial court’s [jury] instruc-
tion on provocation was defective.’’ Id., 171–72. In sup-
port of this decision, we cited Ghant v. Commissioner
of Correction, supra, 255 Conn. 17, for the proposition
that it is ‘‘inappropriate to engage in [a] level of review
not requested,’’ and noted that the defendant had
‘‘requested neither Golding nor plain error review.’’
State v. Ramos, supra, 171–72.
The decisions of this court following Ramos repeat-
edly used the term ‘‘affirmative request’’ in describing
the obligation to invoke Golding review. Although none
of those cases ever explained that term specifically,
those opinions nevertheless implied that a requesting
party was required to cite Golding, or at the very least
engage in a threshold layer of briefing demonstrating
the party’s entitlement to Golding review. See, e.g., In
re Melody L., supra, 290 Conn. 154 (‘‘[T]he respondent
does not seek a review under Golding. Her brief makes
no mention of, or request for Golding review. Conse-
quently, we decline to review the respondent’s constitu-
tional claims.’’); id. (noting that constitutional claim
was inadequately briefed so ‘‘therefore [we] could not
address this claim even if Golding review had been
sought’’); State v. McKenzie-Adams, 281 Conn. 486, 533
n.23, 915 A.2d 822 (declining to reach unpreserved con-
frontation clause claim after concluding claim was inad-
equately briefed because ‘‘the defendant failed to brief
his entitlement either to Golding review or to plain
error review in his main brief’’), cert. denied, 552 U.S.
888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007), overruled
on other grounds by State v. Payne, 303 Conn. 538,
548, 34 A.3d 370 (2012); Lebron v. Commissioner of
Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005)
(stating that court will reach unpreserved constitutional
claims if ‘‘party affirmatively requests and adequately
briefs his entitlement to Golding review,’’ and declining
to reach constitutional claim as inadequately briefed
where ‘‘the [defendant] ma[de] only a passing reference
to Golding for the first time in his reply brief and fail[ed]
to brief his entitlement to Golding review’’); see also
Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008)
(The court declined to engage in Golding review of
unpreserved claims of improprieties by defense counsel
during summation because ‘‘the plaintiff’s brief is
devoid of legal analysis regarding any of the Golding
prongs or plain error review. In fact, the only discussion
of Golding or plain error review in the plaintiff’s brief
consists of a lone citation, in a footnote, to Golding
and to ‘the plain error doctrine.’ In addition, none of
the cases that the plaintiff cites relate to either Golding
review or plain error review.’’ [Emphasis omitted.]).
Numerous other decisions from this court after Ramos
also failed to define the phrase ‘‘affirmative request’’
and summarily declined to afford Golding review in the
absence of some form of express request by the party
seeking review.14 See, e.g., In re Jan Carlos D., 297
Conn. 16, 20 n.10, 997 A.2d 471 (2010); Johnson v. Com-
missioner of Correction, supra, 288 Conn. 60; State v.
Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005).
These decisions reciting the affirmative request
requirement make clear the existence of a threshold
briefing requirement to establish a party’s entitlement
to Golding review. Far less clear, however, is why we
apparently imposed such a threshold requirement—in
essence adding a fifth prong to Golding. The ‘‘affirma-
tive request’’ requirement might well have been a result
of a non sequitur in a single opinion, namely Ramos,
taking on a jurisprudential life of its own. This conclu-
sion is borne out by the fact that none of our decisions
have ever explained the purpose of requiring a defen-
dant seeking Golding review to brief both his underlying
constitutional claim and the adequacy of his request
for review of that claim.15 This likely is because requiring
parties to undertake an ill-defined, mechanistic layer
of threshold briefing to demonstrate their entitlement
to review of an unpreserved constitutional claims is
fundamentally at odds with the policy goals of Golding,
which is a judicially created rule of reviewability
designed to balance the twin policy goals of vindicating
constitutional rights while ensuring fairness to the par-
ties and the courts alike by safeguarding against the
tactical use of unpreserved claim on appeal. As we
explained in State v. Brunetti, 279 Conn. 39, 55, 901
A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct.
1328, 167 L. Ed. 2d 85 (2007), ‘‘Golding is a narrow
exception to the general rule that an appellate court
will not entertain a claim that has not been raised 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 ambuscade, which is unfair to both
the trial court and the opposing party. . . . Neverthe-
less, because constitutional claims implicate fundamen-
tal rights, it also would be unfair automatically and
categorically to bar a defendant from raising a meritori-
ous constitutional claim that warrants a new trial solely
because the defendant failed to identify the violation
at trial. Golding strikes an appropriate balance between
these competing interests: the defendant may raise such
a constitutional claim on appeal, and the appellate tribu-
nal will review it, but only if the trial court record is
adequate for appellate review.’’ (Citation omitted.) In
achieving this balance, Golding implicitly chooses
among competing policy concerns; notice to the trial
court and to the opposing party yields to the principle
that colorable constitutional claims should receive
review, the onus of establishing the factual and legal
basis for such claims remaining, as it must, with the
defendant. See State v. Golding, supra, 213 Conn.
239–40.
In our view, Judges Bishop and Dupont, in their sepa-
rate opinions in this case, best summarized why the
additional briefing hurdle for an appellant imposed by
the affirmative request requirement does nothing to
enhance the notice concerns already addressed by the
first two prongs of Golding, namely, ‘‘to prevent unfair
surprise and to give the state the opportunity to fully
respond to the defendant’s claims.’’ State v. Elson,
supra, 125 Conn. App. 388 n.2 (Bishop, J., concurring
in part and dissenting in part); see id., 381 (Dupont, J.,
concurring). Specifically, if a defendant’s main brief
properly identifies those portions of the record that
form the factual basis for the unpreserved claim and a
legal basis for the constitutional nature of that claim,
then the opposing party and the reviewing court are
more than able to respond to or address that claim as
a matter of reviewability. If the defendant’s brief fails
to identify the relevant record sections, identify the
governing constitutional principles, or apply law to fact
in demonstrating the existence of a constitutional viola-
tion requiring reversal, then the claim likely will be
deemed inadequately briefed and will fail on that ground
anyway, regardless of some threshold invocation of
Golding review prior to the briefing of the merits. See,
e.g., In re Melody L., supra, 290 Conn. 154; accord State
v. Golding, supra, 213 Conn. 240–41 (‘‘Patently noncon-
stitutional claims that are unpreserved at trial do not
warrant special consideration simply because they bear
a constitutional label. . . . For example, once identi-
fied, unpreserved evidentiary claims masquerading as
constitutional claims will be summarily dismissed.’’
[Citations omitted.]).
Further, requiring a defendant to acknowledge
expressly that his claim is or may be unpreserved as a
precondition to Golding review; see State v. Elson,
supra, 125 Conn. App. 358–59; does not add anything
to the reviewability calculus. The issue of preservation
is often hotly contested. See, e.g., State v. Dalzell, 282
Conn. 709, 718–19, 924 A.2d 809 (2007). When the consti-
tutional claim is one that is especially fact dependent,
such as a suppression matter, the failure to preserve
the claim before the trial court often results in an inade-
quate factual record for review, thus leading to the
claim’s failure on the merits.16 See, e.g., id., 721–22
(under first prong of Golding, record inadequate to
review unpreserved claim that traffic stop was unconsti-
tutionally based on pretextual seat belt violation
because of failure to raise issue, and obtain factual
findings, at suppression hearing); State v. Brunetti,
supra, 279 Conn. 63–64 (under first prong of Golding,
record inadequate to review defendant’s claim that con-
sent of both present joint occupants is necessary for
search because ‘‘the issue of the defendant’s mother’s
consent was not before the court, the facts relevant to
the issue of the defendant’s mother’s consent never
were adduced in the trial court’’). If a reviewing court
deems a claim of constitutional dimension to be unpre-
served, declining to review that claim for failure of a
defendant to either acknowledge that claim’s unpre-
served nature or incant the word Golding would repre-
sent a triumph of form over substance. Put differently,
the affirmative request requirement, which has often
caused appellants to adopt a belt and suspenders
approach to the briefing of constitutional claims by
arguing preservation and affirmatively claiming entitle-
ment to Golding review as a safeguard, has served only
to swell briefs with boilerplate and block quotes that
are the understandable product of abundant caution by
the appellants’ counsel.17
Indeed, beyond expediting the writing of appellate
opinions disposing of seemingly specious unpreserved
claims on direct appeal, we agree with Judge Dupont
that all articulating a fifth threshold prong of Golding
accomplishes—particularly when the merits of the
underlying claim have been briefed adequately to dem-
onstrate reviewability and potential reversibility under
the four prongs of Golding—is sowing grounds for
‘‘future habeas corpus petitions and other cases, both
civil and criminal, that allege ineffective assistance of
appellate counsel for failure to obtain appellate review
of an unpreserved constitutional claim . . . .’’ State v.
Elson, supra, 125 Conn. App. 387 (Dupont, J., concur-
ring). This, of course, serves no judicial economy, as
the rapidly written appellate opinion of today is nothing
more than kicking the can down the road to be
addressed in the habeas petition of tomorrow—a count-
erproductive action that ‘‘actually increases the net
workload of the judicial system.’’ (Emphasis omitted.)
State v. Kitchens, 299 Conn. 447, 524, 10 A.3d 942 (2011)
(Katz, J., concurring).
Finally, what is most troubling is that the affirmative
request requirement has appeared to function as a
‘‘magic words’’ test—notwithstanding, as noted by the
Appellate Court, this court’s refusal in a variety of con-
texts ‘‘to attach talismanic significance to the presence
or absence of particular words or phrases.’’ (Internal
quotation marks omitted.) State v. Elson, supra, 125
Conn. App. 353; see also, e.g., State v. Robinson, 227
Conn. 711, 731, 631 A.2d 288 (1993) (‘‘[t]he fact that the
trial court did not utter the talismanic words that the
evidence was ‘more probative than prejudicial’ does not
indicate that it did not make such a determination’’). For
example, in Johnson v. Commissioner of Correction,
supra, 288 Conn. 60, this court declined Golding review
for the sole reason that the defendant ‘‘failed to request
that we undertake such review’’ or, more to the point, to
say some magic word or phrase. Such a rigid approach is
irreconcilable with the strong principles of public policy
weighing in favor of reviewability that lie at the heart
of Golding, and is entirely inconsistent with our body
of case law that values substance over matters of form.18
See id., 68 (Palmer, J., concurring) (addressing merits
of constitutional claim, notwithstanding petitioner’s
failure to acknowledge its unpreserved nature or
‘‘invoke Golding,’’ because ‘‘arguments and analysis
that the [defendant] raised in support of his ex post
facto claim are precisely the same arguments and analy-
sis that he would have raised if he had invoked
Golding’’).
In this case, the Appellate Court accurately interpre-
ted our body of case law applying the ‘‘affirmative
request’’ prerequisite to Golding review to require
‘‘nothing less than an explicit assertion and analysis in
a party’s main brief that explains that, if the reviewing
court deems a particular claim to be unpreserved, that
claim nonetheless is reviewable on appeal because the
record is adequate to review the claim and it is a claim
of constitutional magnitude.’’ State v. Elson, supra, 125
Conn. App. 354–55. Nevertheless, we determine that the
analysis of public policy and practical considerations
underlying the affirmative request requirement set forth
in State v. Wright, supra, 114 Conn. App. 463–64,
although inconsistent with binding precedent from this
court, is better reasoned. Accordingly, we overrule
State v. Ramos, supra, 261 Conn. 171, and its progeny
to the extent that those cases require a defendant to
affirmatively request such review or impart a threshold
level of analysis of entitlement to review under Gold-
ing.19 We conclude, therefore, that to obtain review
of an unpreserved claim pursuant to State v. Golding,
supra, 213 Conn. 239–40, a defendant need only raise
that claim in his main brief, wherein he must ‘‘present
a record that is [adequate] for review and affirmatively
[demonstrate] that his claim is indeed a violation of a
fundamental constitutional right.’’ (Internal quotation
marks omitted.) State v. Wright, supra, 463. Accord-
ingly, the defendant’s failure in his main brief, as stated
by the Appellate Court to (1) ‘‘identify or address any
issues related to the reviewability of the claim,’’ (2)
‘‘state that any extraordinary level of review is
requested,’’ (3) ‘‘refer to the Golding opinion either
by name or in substance [or] address the issue of the
adequacy of the record to review the claim,’’ or (4)
‘‘present an analysis that, if the claim was not preserved,
it nevertheless should be reviewed,’’ did not preclude
consideration of his federal constitutional claim, which
otherwise was properly briefed, identified relevant con-
stitutional authorities, and was founded on an adequate
record for review. State v. Elson, supra, 125 Conn. App.
356; see also State v. Wright, supra, 463–64 (reviewing
claim despite failure to mention Golding because ‘‘the
defendant has provided a record adequate for review
and has sufficiently demonstrated, by discussion of rele-
vant authority, that his claim . . . implicates his sixth
amendment right to confront witnesses and his four-
teenth amendment due process right to obtain exculpa-
tory evidence’’).
B
Merits of the Defendant’s Constitutional Claim
We now turn to a review of the defendant’s constitu-
tional claim under Golding. Relying heavily on Judge
Bishop’s concurring and dissenting opinion; see State
v. Elson, supra, 125 Conn. App. 395–96; the defendant
contends that application of the ‘‘totality of the circum-
stances’’ analysis articulated in State v. Kelly, supra,
256 Conn. 81–82, demonstrates that the trial court
improperly punished him at sentencing for exercising
his constitutional right to a jury trial. Although we con-
clude that the claim is reviewable under the first two
prongs of Golding, we are guided by the totality of the
circumstances analysis adopted in Kelly; see id., 82;
and conclude that the defendant’s claim fails under
Golding’s third prong, which requires that he demon-
strate that ‘‘the alleged constitutional violation clearly
exists and clearly deprived the defendant of a fair trial
. . . .’’ State v. Golding, supra, 213 Conn. 240.
We note at the outset that this unpreserved claim is
reviewable under the first two prongs of State v. Gold-
ing, supra, 213 Conn. 239, because: (1) the record is
adequate for review as the trial court’s remarks during
sentencing are set forth in the transcripts in their
entirety;20 and (2) the claim is of constitutional magni-
tude, as demonstrated by the defendant’s discussion of
relevant authority in his main brief. See, e.g., State v.
Kelly, supra, 256 Conn. 80–81 (discussing sixth amend-
ment to United States Constitution and article first, § 8,
of the Connecticut constitution). We now turn to the
third prong of Golding, and determine whether ‘‘the
alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial . . . .’’
State v. Golding, supra, 240.
Our analysis under the third prong of Golding begins
with State v. Kelly, supra, 256 Conn. 79–80, which is
our leading decision21 with respect to whether a trial
court violates a defendant’s ‘‘federal and state constitu-
tional rights by improperly considering, at the sentenc-
ing phase of the proceedings, the defendant’s decision
to proceed to trial.’’22 In Kelly, the defendant challenged
the trial court’s remark at ‘‘the conclusion of the defen-
dant’s sentencing hearing, and prior to imposing sen-
tence . . . that ‘[t]he general factors which I have
considered in this matter is whether or not there was
a plea or a complete trial, and that is one of the legal
factors to consider in sentencing.’ ’’23 Id., 80.
In resolving this claim we noted that, ‘‘[a]s a general
matter, a trial court possesses, within statutorily pre-
scribed limits, broad discretion in sentencing matters.
On appeal, we will disturb a trial court’s sentencing
decision only if that discretion clearly has been abused.
. . . In spite of that discretion, however, the [a]ugmen-
tation of sentence based on a defendant’s decision to
stand on [his or her] right to put the [g]overnment to
its proof rather than plead guilty is clearly improper.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Id., 80–81. Reviewing other federal and
state courts’ approaches to similar claims, we adopted
what we deemed to be the majority view,24 and con-
cluded ‘‘that review of claims that a trial court length-
ened a defendant’s sentence as a punishment for
exercising his or her constitutional right to a jury trial
should be based on the totality of the circumstances.
We further [held] that the burden of proof in such cases
rests with the defendant.’’ Id., 82. In so concluding,
we rejected as a constitutional matter a minority view
employing a ‘‘ ‘per se’ rule requiring a remand for resen-
tencing whenever a colorable claim is raised by a defen-
dant that his sentence was lengthened because of his
choice to stand trial.’’25 Id.
Applying this majority view in Kelly, we determined
that ‘‘[n]o fair reading of the record would permit the
conclusion that the trial court’s comment should be
understood to mean that it was lengthening the defen-
dant’s sentence based on his choice to stand trial.
Rather, we interpret[ed] the trial court’s remark as a
reminder to the defendant of the oft acknowledged truth
that many factors favor relative leniency for those who
acknowledge their guilt . . . and thus help conserve
scarce judicial and prosecutorial resources for those
cases that merit the scrutiny afforded by a trial. . . .
State v. Coleman, 242 Conn. 523, 544, 700 A.2d 14 (1997).
There is a world of difference between that reminder
and a clear showing that the defendant received a
lengthier sentence because he chose to exercise his
right to a jury trial.’’26 (Internal quotation marks omit-
ted.) State v. Kelly, supra, 256 Conn. 84. We then con-
cluded that the ‘‘totality of the circumstances
surrounding the defendant’s sentencing gave no indica-
tion that the trial court improperly augmented the
defendant’s sentence based on his decision to stand
trial. As the trial judge [in Kelly] noted, he gave particu-
lar consideration to the age of the victim, the age of
the defendant, the lack of closure of the matter for the
eleven years preceding the second trial, the fact that the
sentence was not influenced by other criminal matters
pending against the defendant and, finally, proportional-
ity.’’ Id., 83; accord State v. Fisher, 121 Conn. App. 335,
350–52, 995 A.2d 105 (2010) (applying Kelly totality of
circumstances analysis to claim that trial court improp-
erly took defendant’s silence into account, thereby pen-
alizing him for exercise of fifth amendment rights, in
dispositional phase of violation of probation pro-
ceeding).
Having reviewed the totality of the sentencing record
in the present case, we conclude that the defendant
has not carried his burden of proving that the trial court
penalized him for exercising his constitutional right to
a jury trial. First, we note that the length of the sentence
that the defendant received must be evaluated relative
to the maximum sentence faced by the defendant and
the sentence recommended by the state. In this case, the
maximum sentence would have been thirty-five years
imprisonment,27 and the state recommended that the
trial court sentence the defendant to thirty-five years
imprisonment, suspended after twenty-five years, fol-
lowed by five years probation with special conditions.
See State v. Elson, supra, 125 Conn. App. 335. The trial
court, however, did not follow that recommendation
and, instead, sentenced the defendant to a total effective
sentence of twenty-five years imprisonment, execution
suspended after twenty years, followed by five years
of probation with special conditions, fifteen years less
than the defendant’s maximum exposure, and five years
less than what the state recommended. See id., 338.
The trial court’s decision to sentence the defendant to
a term of imprisonment shorter than both the maximum
sentence and what the state had recommended indi-
cates that the trial court did not intend to penalize the
defendant for exercising his right to a trial.
The lack of vindictiveness evinced in the length of
the sentence is supported by the fact that the vast major-
ity of the trial court’s sentencing remarks reflected a
detailed focus on ‘‘legitimate sentencing considera-
tions,’’ namely, victim impact evidence; see State v.
Coleman, supra, 242 Conn. 546–47; and the defendant’s
demeanor, criminal history, presentence investigation
report, prospect for rehabilitation and ‘‘general lack of
remorse for the crimes’’ of which he has been convicted.
State v. Anderson, 212 Conn. 31, 50, 561 A.2d 897 (1989);
see also State v. Eric M., 271 Conn. 641, 653–54, 858
A.2d 767 (2004); State v. Barnes, 33 Conn. App. 603,
610, 637 A.2d 398 (1994), aff’d, 232 Conn. 740, 657 A.2d
611 (1995). Indeed, it is significant that, when the trial
court made the specific comments at issue, it did so
in the context of discounting the mitigating factors,
including the defendant’s allocution, statements from
a family friend and his father, and a letter from his
mother, rather than in its separate recitation of factors
that would justify lengthening the defendant’s sentence,
including the victim impact evidence, the severity of
the defendant’s attack on the victim, the randomness
of the attack, the defendant’s dangerousness as
reflected by his pattern of violent behavior, which has
been exacerbated by his substance abuse problems that
have not been treated successfully, his incredible trial
testimony, and the fact that he committed the crimes
while on pretrial release for other pending felony
charges. See State v. Elson, supra, 125 Conn. App. 337–
38. Thus, the totality of the circumstances indicates
that the trial court’s actions were consistent with the
maxim that, ‘‘[a]lthough a court may deny leniency to
an accused who . . . elects to exercise a statutory or
constitutional right, a court may not penalize an
accused for exercising such a right by increasing his
or her sentence solely because of that election.’’ State
v. Revelo, 256 Conn. 494, 513, 775 A.2d 260, cert. denied,
534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001).
Accordingly, we conclude that the defendant has not
carried his burden of proving, on the basis of the totality
of the circumstances, that the trial court augmented
his sentence in retaliation for the exercise of his right
to stand trial.
II
SUPERVISORY AUTHORITY CLAIMS
We next turn to the dispositive supplemental issue,
namely, whether we should use our supervisory author-
ity to remand this case for a new sentencing proceeding.
In his supplemental brief, the defendant claims that the
exercise of our supervisory power, on a sua sponte
basis, is appropriate because the state’s appellate case
law on this point is inconsistent and, therefore, ‘‘does
not effectively put defendants and their counsel on
notice as to what is required in this jurisdiction in order
to properly preserve claims of sentencing impropriety
. . . .’’ Relying on State v. Coleman, supra, 242 Conn.
523, and State v. Rose, 305 Conn. 594, 46 A.3d 146 (2012),
the defendant further argues that the use of our supervi-
sory powers is appropriate to ensure public confidence
in the integrity and fairness of the judicial system,
including with respect to sentencing matters. Thus, the
defendant contends that we should ‘‘invoke [our] super-
visory authority to warn the trial courts that their con-
sideration of a defendant’s election to proceed to trial,
or other fundamental constitutional right, in sentencing
the defendant shall not be tolerated, and more specifi-
cally, that the trial courts must not equate a defendant’s
exercise of his right to trial with a lack of remorse.’’
In response, the state contends that we should not
exercise our supervisory authority because the defen-
dant failed to request that relief properly in his main
brief in the Appellate Court and the record is ambiguous
and, therefore, inadequate with respect to whether the
trial court actually lengthened the defendant’s sentence
because he had elected to stand trial. Citing State v.
Lockhart, 298 Conn. 537, 577, 4 A.3d 1176 (2010), State
v. Andrews, 248 Conn. 1, 20, 726 A.2d 104 (1999), and
State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998),
the state further emphasizes that we should invoke our
supervisory powers only ‘‘rare[ly]’’ and ‘‘ ‘with great
caution’ ’’ when ‘‘traditional protections are inadequate
to ensure the fair and just administration of the courts.’’
Positing that the trial court’s comments were constitu-
tionally indistinguishable from those determined not to
require reversal in State v. Kelly, supra, 256 Conn. 79–84,
the state further emphasizes that the exercise of our
supervisory powers is inappropriate because there is
no indication of a ‘‘judicial practice or tendency among
sentencing courts to improperly comment upon and/or
penalize a defendant’s exercise of his right to stand
trial,’’ either systemically or with regard to the trial
judge in this case. In this vein, the state contends that
existing doctrines of extraordinary review, such as
Golding and plain error, provide sufficient protection
to criminal defendants and that remanding the case for
resentencing on this ambiguous record would contra-
vene the usual presumption that the trial court acted
correctly. See, e.g., State v. Crumpton, 202 Conn. 224,
231, 520 A.2d 226 (1987). We, however, agree with the
defendant, and utilize our supervisory powers to
emphasize that it would be inappropriate for a trial
judge to consider, at sentencing, a defendant’s decision
to exercise his right to a trial, including with respect
to an assessment of the defendant’s remorse, given the
negative impact such comments are likely to have on
the public’s perception of the criminal justice system.
Accordingly, we remand this case to the trial court for
a new sentencing proceeding.
A
Scope of This Court’s Supervisory Powers
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Supervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . Under our supervisory authority, we have adopted
rules intended to guide the lower courts in the adminis-
tration of justice in all aspects of the criminal process.’’
(Internal quotation marks omitted.) State v. Rose, supra,
305 Conn. 607. ‘‘Under our supervisory authority, we
have adopted rules intended to guide the lower courts
in the administration of justice in all aspects of the
criminal process. . . . The exercise of our supervisory
powers is an extraordinary remedy to be invoked only
when circumstances are such that the issue at hand,
while not rising to the level of a constitutional violation,
is nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Lockhart, supra, 298 Conn. 576.
Indeed, there is ‘‘no principle that would bar us from
exercising our supervisory authority to craft a remedy
that might extend beyond the constitutional minimum’’
because articulating a rule of policy and reversing a
conviction under our supervisory powers ‘‘is perfectly
in line with the general principle that this court ‘ordi-
narily invoke[s] [its] supervisory powers to enunciate
a rule that is not constitutionally required but that [it]
think[s] is preferable as a matter of policy.’ ’’28 (Empha-
sis omitted.) State v. Rose, supra, 607–608, quoting State
v. Marquez, 291 Conn. 122, 166, 967 A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
We begin with the state’s arguments with respect to
the propriety of the use of our supervisory powers in
this case. The state contends that we should not use
our supervisory powers to reach the defendant’s unpre-
served sentencing claim because he failed to request
this type of review in his main brief before the Appellate
Court, doing so only in his reply brief filed in that court.
The state correctly observes that, to receive review, a
claim must be raised and briefed adequately in a party’s
principal brief, and that the failure to do so constitutes
the abandonment of the claim. See, e.g., State v. Sau-
cier, 283 Conn. 207, 223, 926 A.2d 633 (2007); State v.
Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). The
purpose of this rule is to provide the court with ‘‘the
full benefit of . . . written argument’’ and to eliminate
the unfair surprise to the appellee that would be created
were an appellant to be permitted to raise a new claim
on appeal in its reply brief. (Internal quotation marks
omitted.) State v. Garvin, supra, 312. An appeals court
may, however, raise the question of whether to use
its supervisory powers sua sponte. See, e.g., State v.
Santiago, 245 Conn. 301, 332 n.20, 715 A.2d 1 (1998).
When an appellate court chooses to exercise this
authority after oral argument, as we have in the present
appeal, concerns regarding unfair surprise and inade-
quate argumentation can be alleviated by an order
requiring the parties to file supplemental briefs. See,
e.g., State v. Rose, supra, 305 Conn. 604–605 (sua sponte
order requiring parties to brief supervisory powers issue
after oral argument of appeal where certified question
concerned applicability of constitutional harmless error
analysis to defendant’s compelled appearance in prison
attire); accord State v. Dalzell, supra, 282 Conn. 715
(‘‘[i]f the Appellate Court decides to address an issue
not previously raised or briefed, it may do so only after
requesting supplemental briefs from the parties or
allowing argument regarding that issue’’). Accordingly,
we conclude that the defendant’s failure to brief his
supervisory authority claim properly in the Appellate
Court does not preclude us from raising that issue sua
sponte and deciding it subsequent to the receipt of
supplemental briefing from the parties.
We next turn to the state’s contention that existing
constitutional, statutory and procedural rules, including
bypass doctrines permitting the review of unpreserved
claims such as State v. Golding, supra, 213 Conn. 239–
40, and plain error,29 are ‘‘generally adequate to protect
the rights of the defendant and the integrity of the
judicial system’’; (internal quotation marks omitted)
State v. Lockhart, supra, 298 Conn. 576; thus rendering
it unnecessary and inappropriate to utilize our supervi-
sory authority ‘‘for the sole purpose of vacating some
portion or all of a criminal judgment merely to redress
a perceived error in an individual case.’’ See also State
v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997)
(noting that supervisory authority ‘‘is not a form of free-
floating justice, untethered to legal principle’’ [internal
quotation marks omitted]). We agree with the state that
the supervisory authority of this state’s appellate courts
is not intended to serve as a bypass to the bypass,
permitting the review of unpreserved claims of case
specific error—constitutional or not—that are not oth-
erwise amenable to relief under Golding or the plain
error doctrine. ‘‘Rather, the integrity of the judicial sys-
tem serves as a unifying principle behind the seemingly
disparate use of our supervisory powers.’’ (Internal quo-
tation marks omitted.) State v. Anderson, 255 Conn.
425, 439, 773 A.2d 287 (2001). Thus, a defendant seeking
review of an unpreserved claim under our supervisory
authority must demonstrate that his claim is one that,
as a matter of policy, is relevant to ‘‘the perceived fair-
ness of the judicial system as a whole,’’ most typically
in that it lends itself to the adoption of a procedural rule
that will ‘‘guide the lower courts in the administration of
justice in all aspects of the criminal process.’’30 (Internal
quotation marks omitted.) State v. Rose, supra, 305
Conn. 607; see also State v. Anderson, supra, 255 Conn.
441 (Where the trial court had conducted the proper
preliminary inquiry under State v. Brown, 235 Conn.
502, 528, 668 A.2d 1288 [1995], ‘‘the use of [this court’s]
supervisory authority [to order a new trial] would be
inappropriate . . . because it would not have suffi-
cient boundaries to guide future trial courts. Rather, it
would more likely create confusion as to the proper
procedures to follow in jury misconduct cases.’’). In
our view, adherence to this unifying principle mitigates
against the specter of arbitrary, result oriented, and
undisciplined jurisprudence that may be a potential risk
of the expansive use of our supervisory powers. Thus,
we turn to the merits of the defendant’s claims to deter-
mine whether they implicate the perceived fairness of
the system as a whole.31
B
This Court’s Supervisory Powers in the Sentencing
Context
1
Background
We have previously utilized our supervisory powers
to craft procedural rules that protect against the appear-
ance of a judge penalizing a defendant for the exercise
of his constitutional rights because ‘‘[t]o punish a per-
son because he has done what the law plainly allows
him to do is a due process violation of the most basic
sort . . . .’’ (Citation omitted.) Bordenkircher v.
Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604
(1978). Most notably, in State v. Coleman, supra, 242
Conn. 541, we refrained from determining, ‘‘for state
constitutional purposes, as to whether a presumption
of vindictiveness attaches where a defendant previously
has been sentenced under the terms of a plea agreement
and, having successfully challenged his conviction,
receives a greater sentence following a trial,’’32 but nev-
ertheless utilized our supervisory powers to conclude
that ‘‘such a defendant should be afforded an explana-
tion, if one is requested, justifying the enhanced sen-
tence.’’33 In utilizing our supervisory powers, we
emphasized that ‘‘[a]n important function of this court
is to ensure public confidence in the integrity of the
judicial system. This confidence is enhanced through
the enactment of rules that safeguard the fairness of
our system of justice. A requirement that the trial court
articulate the objective criteria upon which it relied in
imposing a greater sentence will promote public confi-
dence in the fair and impartial administration of justice
by dispelling concerns that the subsequent sentence
was the product of prosecutorial or judicial vindic-
tiveness.’’ Id.
In Coleman, we determined that our use of supervi-
sory powers to adopt this rule ‘‘dispels these concerns
in two important respects. First, it aids in the elimina-
t[ion of] even the possibility of retaliation so that the
defendant will have no apprehension about exercising
the right of appeal. . . . Second, because it is [usually]
exceedingly difficult to establish that a judge has retali-
ated against a defendant for exercising legal rights . . .
the rule ensures that there will be an adequate record for
appellate review of a defendant’s claim of retaliation.’’34
(Citations omitted; internal quotation marks omitted.)
Id., 541–42.
Similarly, in State v. Revelo, supra, 256 Conn. 503
and n.19, we deemed the presence or appearance of
vindictiveness in sentencing to be a matter sufficiently
important to justify the use of our supervisory power
to reach an issue that was not preserved and, indeed,
might well have been waived by the trial court’s canvass
informing the defendant that his appellate rights were
limited under General Statutes § 54-94a35 to the substan-
tive issues raised in his motion to suppress. In Revelo,
we noted that the defendant’s ‘‘due process claim gives
rise to an important issue, namely, the proper role of
our trial judges in the plea bargaining process, the signif-
icance of which transcends this particular case.’’ Id.,
503. Citing Bordenkircher v. Hayes, supra, 434 U.S. 363,
in support of the proposition that ‘‘principles of due
process prohibit a court from retaliating against a defen-
dant merely for exercising a statutory or constitutional
right,’’ we then concluded that the trial court36 had vio-
lated the defendant’s due process rights by telling him
that ‘‘he would be required to serve one extra year in
prison if he agreed to plead guilty only after exercising
his right to a judicial determination of his motion to
suppress.’’ State v. Revelo, supra, 513; see also id., 514
(finding ‘‘no difficulty’’ in discerning from record that
‘‘trial court imposed a more severe sentence on the
defendant solely because he asserted his right to a judi-
cial ruling on his motion to suppress’’). We emphasized
that, to avoid the perception of vindictiveness in sen-
tencing, ‘‘it also would be incumbent upon the court to
explain why a greater sentence might be appropriate
. . . to dispel any suggestion that the court was pre-
pared to punish the defendant merely for exercising his
right to a judicial determination of his motion.’’ (Cita-
tion omitted.) Id., 516.
2
Trial Courts’ Commentary during Sentencing
In our view, concerns about the appearance of vindic-
tiveness in sentencing expressed in Coleman and Revelo
are not assuaged by the oft-repeated, but difficult to
implement, ‘‘fine distinction’’ noted therein between
extending lenience to those who plead guilty and penal-
izing those who exercise their rights to a trial.37 See,
e.g., State v. Revelo, supra, 256 Conn. 513–14; State v.
Kelly, supra, 256 Conn. 84; State v. Coleman, supra, 242
Conn. 544. Thus, we find persuasive Judge Bishop’s
comprehensive dissenting opinion, which utilizes the
appellate courts’ supervisory power to reach the defen-
dant’s unpreserved claims. State v. Elson, supra, 125
Conn. App. 388–89. In particular, we agree with Judge
Bishop that, given our state’s extremely heavy reliance
on plea bargaining in resolving criminal cases;38 see,
e.g., State v. D’Antonio, 274 Conn. 658, 679–80 n.12, 877
A.2d 696 (2005); we ‘‘must be particularly vigilant in
circumstances in which the right [to a jury trial] may be
in peril. One such circumstance may arise at sentencing.
One court has commented, ‘courts must not use the
sentencing power as a carrot and stick to clear con-
gested calendars, and they must not create an appear-
ance of such a practice.’ United States v. Stockwell, 472
F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948,
93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973).’’ State v. Elson,
supra, 125 Conn. App. 393. Thus, we too observe that,
‘‘[w]here disposition by trial is relatively rare, it is even
more important to public confidence in our judicial
system, if not to due process itself, that the court not
take into consideration at sentencing the rare exercise
of the right of the defendant to require the state to prove
its case at trial.’’ Id., 393 n.7 (Bishop, J., concurring and
dissenting). Accordingly, we conclude, pursuant to our
supervisory authority, that a trial judge should not com-
ment negatively on the defendant’s decision to elect a
trial during sentencing, given the appearance of impro-
priety of that consideration.39
Further, our conclusion, pursuant to our supervisory
authority, at sentencing, that trial judges should not
comment negatively on a defendant’s election of a trial
supplements the constitutional analysis in State v. Kelly,
supra, 256 Conn. 81, wherein this court emphasized that
the ‘‘[a]ugmentation of sentence based on a defendant’s
decision to stand on [his or her] right to put the [g]overn-
ment to its proof rather than plead guilty is clearly
improper.’’ (Internal quotation marks omitted.) As
noted previously,40 in Kelly, we adopted what we
deemed to be the majority approach, and concluded
‘‘that review of claims that a trial court lengthened a
defendant’s sentence as a punishment for exercising
his or her constitutional right to a jury trial should be
based on the totality of the circumstances. We further
[held] that the burden of proof in such cases rests with
the defendant.’’ Id., 82. In so concluding, we rejected
as a constitutional matter a minority view employing
a ‘‘ ‘per se’ rule requiring a remand for resentencing
whenever a colorable claim is raised by a defendant
that his sentence was lengthened because of his choice
to stand trial.’’ Id. Our conclusion in this case, made
pursuant to our supervisory powers, supplements the
constitutional rule identified in Kelly because, although
the totality of the circumstances analysis adopted
therein is appropriate for constitutional due process
purposes to determine whether the violation of a non-
structural rule amounts to harmful error requiring the
remedy of reversal,41 it does not provide trial judges
with the clear guidance that typically accompanies the
exercise of our supervisory authority. See State v. Rose,
supra, 305 Conn. 605–606 (utilizing supervisory power
to adopt rule ‘‘that the conviction of a defendant who
is compelled to stand trial in identifiable prison clothing
in violation of his or her constitutional rights is revers-
ible per se’’). Moreover, and as Judge Bishop noted,
except in the ‘‘most blatant’’ cases, it is difficult to
ascertain meaningfully from the record whether a trial
judge has actually held a defendant’s election of a trial
against him. State v. Elson, supra, 125 Conn. App. 392
n.6; see also, e.g., United States v. Perez, 904 F.2d 142,
146 (2d Cir. 1990) (‘‘this court recognizes . . . that it
is not always easy to demonstrate actual vindictiveness’’
[citation omitted]). This is particularly so, given the
‘‘fine line between considering a defendant’s lack of
remorse and penalizing a defendant for refusing to plead
guilty and insisting on his right to trial’’; State v. Knight,
701 N.W.2d 83, 87 (Iowa 2005); see also footnote 37 of
this opinion and accompanying text; and the fact that
Connecticut lacks sentencing guidelines that might cre-
ate norms from which otherwise unexplained devia-
tions could be objective evidence of retaliation. See
State v. Elson, supra, 125 Conn. App. 392 n.5 (Bishop,
J., concurring and dissenting). That such comments are,
therefore, not truly amenable to a traditional constitu-
tional harmless error analysis is a factor that is a ‘‘core
[consideration] . . . identified as [a prerequisite] to
the invocation of our supervisory authority.’’ State v.
Rose, supra, 608; see also id., 614 (noting that ‘‘unlike
most other constitutional errors, compelling a defen-
dant to stand trial in identifiable prison clothing is not
just highly demeaning but also potentially highly preju-
dicial in a manner the effects of which may be very
difficult to measure because they involve a subtle but
ever present cognitive bias’’); id., 614 n.20 (stating that
‘‘ill effects of a defendant’s compelled appearance in
prison clothing being very difficult to measure, we are
loath to engage in . . . harmless error analysis’’).
3
Application to the Merits of This Case
Relying on Judge Robinson’s concurrence in this
case, the state contends, however, that the record is
ambiguous with respect to whether the trial court actu-
ally lengthened the defendant’s sentence as a result of
his election of a trial, and that this ambiguity renders
it inadequate for review. See State v. Elson, supra, 125
Conn. App. 375–77. We disagree. The record in this case
is perfectly adequate for review in that the transcript
of the sentencing proceeding tells us verbatim what
happened in the trial court; the only question or ambigu-
ity remaining concerns the possible inferences to be
drawn from the trial court’s comments therein.42 Put
differently, finding this particular record inadequate for
review of this claim would mean that, absent the
extremely unlikely admission by a trial judge that he
or she is lengthening a defendant’s sentence as a result
of the trial election,43 no record would ever be adequate
for review of a claim like this without the aid of a crystal
ball or mind reader.
Moreover, Judge Robinson’s observations with
respect to the content of the record in this case capture
the very need for the exercise of our supervisory author-
ity in this context. He aptly observed that ‘‘reasonable
minds can disagree as to whether the court’s statement
concerning the defendant’s remorse actually was fac-
tored into the court’s sentence.’’ Id., 377. The apparent
ambiguity in the trial court’s remarks with respect to
the court’s intent to penalize the defendant for exercis-
ing his right to a trial, and the disparate inferences that
could be drawn therefrom, lend support to the exercise
of our supervisory authority in order to prevent the
appearance of improper action that reflects poorly on
the ‘‘perceived fairness of the judicial system as a
whole.’’ (Internal quotation marks omitted.) State v.
Rose, supra, 305 Conn. 607; see also State v. Pena, 301
Conn. 669, 684, 22 A.3d 611 (2011) (‘‘we suggest that
our trial courts in future sentencings refrain from
expressing disagreement with the jury’s verdict’’
because doing so ‘‘may undermine public confidence
in the jury system’’); cf. State v. D’Antonio, supra, 274
Conn. 693 n.22 (due process requires ‘‘that a defendant
receive a trial before a court who, at the very least,
appears free of bias’’); Cameron v. Cameron, 187 Conn.
163, 170, 444 A.2d 915 (1982) (‘‘[t]he appearance as well
as the actuality of impartiality on the part of the trier
is an essential ingredient of a fair trial’’).
Finally, we do not in any way intimate that trial courts
are precluded from considering or discussing at sen-
tencing the defendant’s conduct during the trial and
sentencing proceedings, including the apparent veracity
of the defendant’s testimony therein. Beyond forgoing
the potential and permissible exercise of leniency in
exchange for a guilty plea, a defendant who elects a
trial generally incurs greater exposure at sentencing
because ‘‘the relevant sentencing information available
to the judge after the plea will usually be considerably
less than that available after a trial.’’ Alabama v. Smith,
490 U.S. 794, 801, 109 S. Ct. 2201, 104 L. Ed. 2d 865
(1989); accord State v. Coleman, supra, 242 Conn. 543–
44. The defendant’s demeanor, criminal history, presen-
tence investigation report, prospect for rehabilitation
and ‘‘general lack of remorse for the crimes’’ of which
he has been convicted remain ‘‘legitimate sentencing
considerations.’’44 State v. Anderson, supra, 212 Conn.
50; see also State v. Eric M., supra, 271 Conn. 653–54
(same); State v. Barnes, supra, 33 Conn. App. 610 (‘‘a
continued protestation of innocence and lack of
remorse indicate to the sentencing judge the individu-
al’s prospect for rehabilitation’’). To this end, the Iowa
Supreme Court has emphasized that a sentencing court
is ‘‘not preclude[d] . . . from finding a lack of remorse
based on facts other than the defendant’s failure to
plead guilty,’’ but ‘‘must carefully avoid any suggestions
in its comments at the sentencing stage that it was
taking into account the fact [the] defendant had not
pleaded guilty but had put the prosecution to its proof.’’
(Internal quotation marks omitted.) State v. Knight,
supra, 701 N.W.2d 87; see also Jennings v. State, 339
Md. 675, 688, 664 A.2d 903 (1995) (‘‘[A] sentencing court
may consider, on the issue of a defendant’s prospects
for rehabilitation, the defendant’s lack of remorse. The
record in this case does not indicate that the trial court
was considering the defendant’s refusal to plead guilty.
Instead, it was the [defendant’s] present tense refusal
to accept responsibility, or show remorse, for his
actions on which the court focused.’’); State v. Shreves,
313 Mont. 252, 260, 60 P.3d 991 (2002) (‘‘[W]e cannot
uphold a sentence that is based on a refusal to admit
guilt. To do so would reflect an inquisitorial system of
justice rather than our adversarial system.’’); State v.
Burgess, 156 N.H. 746, 760, 943 A.2d 727 (2008) (the
court held ‘‘that a sentencing court may not draw a
negative inference of lack of remorse from a defendant’s
silence at sentencing,’’ but emphasized that ‘‘this hold-
ing does not preclude a court from considering other
evidence besides a defendant’s silence that indicates a
defendant’s lack of remorse. . . . Nor does it prevent
a trial court from considering a defendant’s false trial
testimony as a sentencing factor.’’ [Citation omitted.]).
We conclude, therefore, that the trial court’s remarks,
which created an appearance of impropriety insofar as
they referred adversely to the defendant’s election of
a trial in evaluating the defendant’s remorse and
addressing the effect of the offense and trial on the
victim,45 warrant the invocation of our supervisory
authority to grant the defendant a new sentencing pro-
ceeding. An observer hearing the comments at issue
in this case could have perceived that the trial court
‘‘equated the defendant’s exercise of the right to trial
with the absence of remorse’’; State v. Elson, supra, 125
Conn. App. 395 (Bishop, J., concurring and dissenting);
thereby tainting the public’s perception of the sentenc-
ing decision in this case. This is particularly so when
the specific comment, namely, that, ‘‘[i]f the defendant
had been truly apologetic, he wouldn’t have put the
victim through the trial,’’ is viewed in the context of the
trial court’s subsequent remark apparently discounting
the defendant’s decision to plead guilty to the bail status
offense under § 53a-40b (1), by noting that it ‘‘would
have been a simple trial and the violation was obvious,
so the admission really did not save the state any
resources.’’ (Emphasis added.) Although these remarks,
when viewed in the totality of the circumstances sur-
rounding the rest of the defendant’s sentencing, cannot
be understood as violating the defendant’s due process
rights by penalizing him for exercising his right to a
trial; see part I B of this opinion; they nevertheless,
viewed together, create the perception—if not the actu-
ality—that the trial court, in crafting the sentence,
improperly took into account the defendant’s exercise
of his rights, which the court viewed as an unnecessary
imposition on the system and the victim. Accordingly,
given the adverse effects such commentary may have
on the public’s perception of the inherent fairness of
the criminal justice system, we conclude that a new
sentencing proceeding is required.46
The judgment of the Appellate Court with respect to
the defendant’s sentencing is reversed and the case is
remanded to that court with direction to reverse the
judgment of the trial court in part and to remand the
case to the trial court for a new sentencing proceeding.
In this opinion the other justices concurred.
* This case originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh.
Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte,
ordered that the case be considered en banc. Accordingly, Justices McDonald
and Espinosa were added to the panel, and they have read the record and
briefs and listened to a recording of the 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
We granted the defendant’s petition for certification limited to the follow-
ing issue: ‘‘Did the Appellate Court properly conclude that the defendant’s
claims were not reviewable under State v. Golding, [supra, 213 Conn. 233]?’’
State v. Elson, 300 Conn. 904, 12 A.3d 572 (2011).
2
General Statutes § 53a-40b was amended by No. 10-36, § 21, of the 2010
Public Acts, which made certain changes to the statute that are not relevant
to the present appeal. For purposes of clarity, we refer to the current revision
of the statute.
3
For a more detailed recitation of the underlying facts of this case, see
State v. Elson, supra, 125 Conn. App. 331–34.
4
The jury found the defendant not guilty on the charge of attempt to
commit assault in the first degree.
5
In her impact statement, the victim stated that: ‘‘On September 3, 2004,
the defendant changed my life forever. At the time, I was a newlywed,
married just two months, working on completing my degree at Western
Connecticut State University.
‘‘As I worked on a drawing in White Hall, [the defendant] brutally attacked
me with a knife. . . . As I put up my hands to protect my face he slashed
me with the knife. I don’t know how I found the strength to fight him off,
especially given the pain I was in and the blood covering me, but somehow
I escaped and ran to campus police for assistance. I was in such shock that
I refused to stop running, despite offers of help from other students. I felt
that if I could reach a police officer I would be safe. I cannot stop thinking
about what would have happened if I did not manage to escape, most likely
I would not be here today.
‘‘After the attack my family and I lived in fear that the defendant would
not be found and I would live my life afraid that he would return and . . .
continue to attack or kill other victims. My husband and other family mem-
bers and friends stayed with me at all times so I would not be alone. He
was apprehended, but I am so fearful.
‘‘I underwent surgery for my hand and had several months of therapy. I
have visible scars on my face and body that will never go away.
‘‘Beyond the physical injuries I’ve suffered, this crime has had a tremen-
dous impact on my life emotionally. Before this happened, I was open and
trusting. Now I am guarded and cautious, always fearing that this could
happen to me again.
‘‘I am now the mother of a four month old—in fact, I testified at the trial
when my baby was only four weeks old. During the trial, it was awful for
me to relive the brutal attack and for my husband, parents, friends, and the
many other family members to hear firsthand the events of that day.
‘‘The fact that the defendant denied he had the capacity to commit this
crime is shocking and shows me that he has not taken responsibility for
what he has done to me. In my opinion, anyone capable of such a brutal
and unprovoked attack will strike again.
‘‘It is my sincere hope that the court recognizes the viciousness of the
crime and the apparent lack of remorse by the defendant and sentences
him to an appropriate punishment. Please protect me and other innocent
victims from further attacks. Thank you.’’
6
The trial court qualified that observation, however, noting that the bail
status charge ‘‘would have been a simple trial and the violation was obvious,
so the admission really did not save the state any resources.’’
7
The defendant also claimed that: ‘‘(1) with regard to his assault convic-
tion, the court improperly permitted the jury to find that his hands were
dangerous instruments, (2) the court improperly admitted certain evidence,
(3) the court, in its jury charge, improperly commented on his interest in
the outcome of the case, improperly commented on the state’s interest in
protecting innocent persons from being convicted of crimes and delivered
an instruction on reasonable doubt that diluted the state’s burden of proof,
[and] (4) the evidence did not support the jury’s verdict with regard to the
assault charge . . . .’’ State v. Elson, 116 Conn. App. 196, 199, 975 A.2d 678
(2009). The Appellate Court rejected these claims, and they are not at issue
in this certified appeal. See id.; see also State v. Elson, supra, 125 Conn.
App. 331.
8
We note that the defendant does not contend in this certified appeal
that the trial court improperly considered the knife at sentencing and, thus,
limits his challenge to the trial court’s comments regarding his decision to
stand trial.
9
The Appellate Court’s dictum relying on State v. Kelly, supra, 256 Conn.
79–84, was a response to a dissenting opinion issued by Judge Bishop. State
v. Elson, supra, 125 Conn. App. 365–66 and 366–67 n.15. The Appellate Court
determined that ‘‘the interests of justice do not require that we exercise
our supervisory powers to grant the defendant relief’’; id., 361; because
‘‘[t]he record in the present case is inherently ambiguous with regard to
whether the court, in fact, augmented the defendant’s sentence because he
elected to stand trial,’’ and ‘‘[o]n appeal, the rulings of the trial court are
entitled to a presumption of correctness; a reviewing court does not presume
error on the basis of an incomplete or ambiguous record.’’ Id., 365.
10
With respect to these separate opinions, we note that Judge Bishop,
joined by Judge Lavine, agreed with the majority’s decision to overrule
Wright, but concluded that, although the defendant had not adequately
requested Golding review of his unpreserved constitutional claim, he would
reach that ‘‘issue by invoking our supervisory power over the administration
of justice in resolving the present appeal.’’ State v. Elson, supra, 125 Conn.
App. 388–89. After reviewing the record, Judge Bishop then concluded that
the case should be remanded for resentencing because the trial court’s
remarks were distinguishable from those deemed not reversible in State v.
Kelly, supra, 256 Conn. 79–84, and had violated the defendant’s due process
rights. See State v. Elson, supra, 125 Conn. App. 395–96, 398–99.
Judge Robinson concurred with the judgment of the Appellate Court,
including the majority’s decision not to utilize its supervisory powers to
reach the defendant’s claims, but wrote ‘‘separately to emphasize the point
that a trial court should never take into consideration whether a person
exercised his or her constitutional right to trial by jury and also to dispel
any suggestion that this court’s decision represents tacit approval for such
a practice.’’ Id., 369.
Judge Dupont again concurred in the result separately, concluding that
the defendant’s unpreserved constitutional claim was raised adequately
under State v. Wright, supra, 114 Conn. App. 463, which she would not
overrule, but also concluding that the defendant had failed to prove that
the trial court violated his due process rights at sentencing. See State v.
Elson, supra, 125 Conn. App. 386–87.
11
Accordingly, we leave for another day the first question raised by way
of our supplemental briefing order, namely, whether ‘‘the doctrine of State
v. Golding, [supra, 213 Conn. 233], [should] apply to an unpreserved claim
that a trial judge commented improperly during sentencing on the defen-
dant’s exercise of his constitutional right to a jury trial?’’
12
As the state points out, we acknowledge that the defendant does not
expressly request the overruling or abolition of the affirmative request
requirement. Nevertheless, given the significant inconsistency between the
analysis in State v. Wright, supra, 114 Conn. App. 463–64, and our post-
Ramos case law, we view the defendant’s extensive arguments in support
of the Wright standard as seeking, de facto, the overruling of the affirmative
request requirement. Thus, for the purpose of providing clear guidance to
litigants and the lower courts in this important area of appellate procedure,
we do not intimate that our adoption of the Wright analysis urged by the
defendant is anything less than complete abandonment of the affirmative
request rule. Further, the state’s brief, which focuses primarily on the consis-
tency of the affirmative request rule as interpreted by the Appellate Court
in this case with existing principles of appellate review, and the inconsistency
of Wright as a corollary, essentially mirrors the stare decisis considerations
in support of rejecting Wright—meaning that the state has not been preju-
diced by not having the opportunity to brief a specific claim objecting to
the elimination of the affirmative request rule.
13
In determining that Golding review was appropriate in Waz, this court
cited by analogy to State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995) (per
curiam), wherein the ‘‘state [had] conceded that such review is appropriate,
despite the defendant’s failure to invoke the guidelines set forth in State v.
Golding, [supra, 213 Conn. 239–40], for review of his unpreserved claim of
constitutional error.’’ See State v. Waz, supra, 240 Conn. 371 n.11. We note
that, in its en banc opinion in this case, the Appellate Court distinguished
Roy on the ground that it involved a challenge to the sufficiency of the
evidence and, therefore, belonged in a category that this court has specifi-
cally ‘‘disconnected’’ from the need to brief entitlement to Golding review
on the ground that a defendant convicted based on insufficient evidence
‘‘ ‘would therefore necessarily meet the four prongs of Golding.’ ’’ State v.
Elson, supra, 125 Conn. App. 350, quoting State v. Adams, 225 Conn. 270,
276 n.3, 623 A.2d 42 (1993).
We acknowledge that Roy appears to have sowed some confusion about
whether its principle of permitting review under the principles of State v.
Golding, supra, 213 Conn. 239–40, despite the defendant’s failure to invoke
that decision, ‘‘applies to all alleged constitutional deprivations or only those
that relate to a claim that the evidence was insufficient to convince a trier
that every element of an offense has been proven beyond a reasonable
doubt.’’ State v. Rogers, 38 Conn. App. 777, 788 n.10, 664 A.2d 291, cert.
denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116
S. Ct. 799, 133 L. Ed. 2d 747 (1996). The Appellate Court ‘‘interpret[ed] the
words ‘[i]n the circumstances of this case’ to refer to unpreserved sufficiency
claims and not to the particular factual situation presented in Roy.’’ Id.; see
State v. Thomas, 62 Conn. App. 356, 361 n.6, 772 A.2d 611 (same), cert.
denied, 256 Conn. 912, 772 A.2d 1125 (2001); see also State v. Wright, supra,
114 Conn. App. 462–63 (citing Roy and Waz in support of proposition that,
‘‘in a number of instances, both [our Appellate Court] and our Supreme
Court have reviewed an unpreserved alleged constitutional claim despite
the defendant’s failure to request a Golding review’’); State v. Liebowitz,
65 Conn. App. 788, 805 n.7, 783 A.2d 1108 (citing Roy in rejecting the state’s
claim ‘‘that Golding review is inappropriate because the defendant, in his
brief, summarily states that his confrontation clause rights were violated
without any citation to authority or analysis’’ stating that ‘‘[a]lthough the
defendant did not provide this court with an overwhelming analysis of his
claim, neither an inadequate briefing of a constitutional issue nor a failure
to invoke the word ‘Golding’ prevents us from reviewing the claim’’), cert.
denied, 259 Conn. 901, 789 A.2d 992 (2001).
14
Other decisions of this court affording Golding review after Ramos
acknowledged the affirmative request requirement without explicating in
detail how the party requesting review complied. See State v. Cutler, 293
Conn. 303, 324–25, 977 A.2d 209 (2009); State v. Bowman, 289 Conn. 809,
815, 960 A.2d 1027 (2008); State v. Reid, 277 Conn. 764, 781, 894 A.2d 963
(2006); see also State v. Cameron M., 307 Conn. 504, 530 n.23, 55 A.3d 272
(2012) (noting state’s claim to contrary, and ‘‘assum[ing], without deciding,
that the defendant’s brief adequately makes an ‘affirmative request’ for
Golding review of his unpreserved constitutional claim’’), cert. denied,
U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013).
15
The closest we came to an explanation was a rather circular and perfunc-
tory citation to Ghant v. Commissioner of Correction, supra, 255 Conn. 17,
for the proposition that ‘‘[i]t is not appropriate to engage in a level of review
that is not requested.’’ (Internal quotation marks omitted.) See, e.g., In re
Melody L., supra, 290 Conn. 154; State v. Ramos, supra, 261 Conn. 171–72.
16
Thus, we disagree with the state’s contention that not requiring a defen-
dant to acknowledge explicitly the unpreserved nature of his claim ‘‘removes
any meaningful consequence of not contemporaneously objecting to a per-
ceived error at trial.’’ A defendant who fails to object to a perceived error
at trial faces numerous ‘‘meaningful consequence[s]’’ with respect to the
odds of his success on appeal, including raising risks that: (1) he may fail
to establish a record adequate for appellate review, thus leading to a loss
under the first prong of Golding; (2) his claim may not be deemed constitu-
tional in nature, thus leading to a loss under the second prong of Golding;
or (3) his or counsel’s inaction may be construed as a waiver of his rights;
see, e.g., State v. Kitchens, 299 Conn. 447, 467–68, 10 A.3d 942 (2011); thus
leading to a loss under the third prong of Golding. Moreover, statistical
analysis demonstrates that removing this artificial and contrived barrier to
the availability of Golding review will not hand defendants the keys to the
jailhouse door, even in jury instruction cases where the record is, by defini-
tion, adequate for review. See id., 522 and n.17 (Katz, J., concurring)
(explaining and detailing ‘‘statistics showing that reviewing courts rarely
conclude that the defendant can prevail on a Golding challenge to an
improper jury instruction’’).
17
Moreover, because this court may, on occasion, exercise its supervisory
authority to consider a claim ‘‘that has not been raised appropriately under
. . . Golding’’; State v. Ramos, supra, 261 Conn. 172 n.16; even the most
stringent affirmative request requirement did not generally relieve the pru-
dent appellate prosecutor from responding to the merits of unpreserved
constitutional claims.
18
We disagree with the state’s argument that the approach to the affirma-
tive request requirement adopted by the en banc Appellate Court in the
present case has the salutary effect of being consistent with this court’s
approach ‘‘in cases in which a party seeks review of a state constitutional
claim’’ under State v. Geisler, supra, 222 Conn. 684–85. As our recent state
constitutional case law makes clear, our ‘‘functional,’’ rather than formulaic,
approach to Geisler leads to the review of adequately briefed state constitu-
tional claims despite technical lapses in the application of that decision’s
six factor approach to the analysis of such claims. See State v. Santiago,
305 Conn. 101, 250–51, 49 A.3d 566 (2012) (reviewing defendant’s state
constitutional claim that it violates Connecticut constitution for pecuniary
gain aggravating factor to duplicate element of capital felony by murder for
hire, despite his failure to cite Geisler ‘‘or outline his state constitutional
analysis seeking greater protection using that decision’s well-known fac-
tors,’’ because ‘‘his brief functionally addresses in detail the subject matter
of most of the factors, which Geisler and other cases indicate are appropriate
for an independent state constitutional analysis’’).
19
In overruling this body of case law, ‘‘we are mindful that [t]his court
[often] has . . . acknowledged the significance of stare decisis to our sys-
tem of jurisprudence because it gives stability and continuity to our case
law. . . . The doctrine of stare decisis counsels that a court should not
overrule its earlier decisions unless the most cogent reasons and inescapable
logic require it. . . . Stare decisis is justified because it allows for predict-
ability in the ordering of conduct, it promotes the necessary perception that
the law is relatively unchanging, it saves resources and it promotes judicial
efficiency. . . . Nevertheless, [s]tare decisis in not an inexorable command;
rather, it is a principle of policy and not a mechanical formula of adherence
to the latest decision. . . . Consequently, [n]one of the foregoing [considera-
tions] . . . necessarily constitutes an insurmountable barrier to a court’s
reconsideration of its prior precedent. With respect to the doctrine of stare
decisis, we repeatedly have observed that [t]he value of adhering to [past]
precedent is not an end in and of itself . . . if the precedent reflects substan-
tive injustice. [Because] [c]onsistency must also serve a justice related end
. . . [c]onsistency obtains its value best when it promotes a just decision.
. . . [E]xperience can and often does demonstrate that a rule, once believed
sound, needs modification to serve justice better. . . . Indeed, [i]f law is
to have current relevance, courts must have and exert the capacity to change
a rule of law when reason so requires. . . . [Thus] [t]his court . . . has
recognized many times that there are exceptions to the rule of stare decisis.
. . . In accordance with these principles, we have not hesitated to revisit and
overrule our prior holdings, including prior holdings applicable to criminal
matters . . . once we are convinced that they were incorrect and unjust.’’
(Citations omitted; internal quotation marks omitted.) State v. Moulton, 310
Conn. 337, 362–63 n.23, 78 A.3d 55 (2013).
20
For additional discussion of the adequacy of the record for review,
including the state’s claims to the contrary, see footnote 42 of this opinion
and accompanying text.
21
But see State v. Rice, 172 Conn. 94, 103, 374 A.2d 128 (1976) (rejecting
similar claim with no analysis beyond observation that ‘‘[a]n essential ingredi-
ent in any plea bargaining situation is the recognition by both the prosecution
and the defense that a trial may produce a less favorable result for the
defendant’’).
22
In distinguishing State v. Kelly, supra, 256 Conn. 23, from the present
case, Judge Bishop described the claim presented and decided in Kelly as
‘‘focus[ing] . . . on whether the court lengthened a defendant’s sentence
as punishment for exercising the right to trial,’’ rather than ‘‘on whether the
court impermissibly took the defendant’s [decision to] exercise [that right]
into consideration at sentencing.’’ State v. Elson, supra, 125 Conn. App. 395
n.8. The defendant echoes this analysis, and contends that his constitutional
claim in this case is focused on the impropriety of the trial court’s consider-
ation of his trial election, rather than the impropriety of the elongation of
his sentence as a consequence of that consideration. We disagree with this
assessment of the claims raised and decided in Kelly. Rather, we agree with
the Appellate Court majority’s view of the claims described in Kelly, namely,
that the issue therein was framed based on the trial court’s consideration
of the defendant’s exercise of his right to trial, rather than founded ‘‘solely
upon a theory of sentence augmentation . . . .’’ Id., 367 n.15. As noted by
the Appellate Court majority, we stated in Kelly the impropriety of the action
of considering, at sentencing, a defendant’s decision to elect a trial; see
State v. Kelly, supra, 79–80; but required the defendant to prove sentence
augmentation to establish a ‘‘clear showing’’ of a due process violation.
Id., 84.
In any event, the distinction between consideration and augmentation is,
for the practical purpose of establishing a constitutional violation requiring
reversal, is one that lacks a meaningful difference. Under Kelly, consider-
ation and augmentation are inseparable with respect to establishing the
existence of a constitutional violation requiring reversal; augmentation is
necessary to establish the requisite harm. Put differently, our adoption of
a totality of the circumstances analysis in Kelly indicates a rejection of an
approach deeming consideration of the defendant’s trial election to be, in
essence, structural constitutional error requiring per se reversal.
23
We noted in Kelly that the trial ‘‘court’s complete statement regarding
the factors that it had taken into account in sentencing the defendant was
as follows: ‘The general factors which I have considered in this matter is
whether or not there was a plea or a complete trial, and that is one of the
legal factors to consider in sentencing. Whether the motive accomplished—
of accomplishing the act was either need—was need or greed, the defen-
dant’s degree of involvement, the violence and/or its potential for violence,
physical injury to the victim, the mental injury to the victim, the relationship
between the [d]efendant and the victim, the degree of planning, and the
statutory seriousness of the offense convicted of.
‘‘ ‘Mitigating factors which I have considered are age of the defendant,
intelligence, school record or work record, prior criminal record, record
since the offense in question, remorse, either drug addiction or alcohol
involvement, mental problems, attitude, family support and community
support.
‘‘ ‘The law requires me to consider each and every single one of those
factors in pronouncing the sentence and I have done so.
‘‘ ‘I have given special consideration to five factors that I have noted here:
the age of [the victim] a week after her sixteenth birthday; the age of [the
defendant], a high school teenager; the lack of closure of this matter for a
period of eleven years; the fact that this sentence is not punishing [the
defendant] for any matters for which he is currently awaiting disposition
and/or trial.
‘‘ ‘The final factor that I have considered is the rules on proportionality.’ ’’
(Emphasis added.) State v. Kelly, supra, 256 Conn. 80 n.27.
24
We cited, as exemplars of this majority approach: United States v. Tracy,
12 F.3d 1186, 1202 (2d Cir. 1993); United States v. Medina-Cervantes, 690
F.2d 715, 716–17 (9th Cir. 1982); Frank v. Blackburn, 646 F.2d 873, 884–85
(5th Cir. 1980), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123
(1981); United States v. Araujo, 539 F.2d 287, 291–92 (2d Cir.), cert. denied
sub nom. Rivera v. United States, 429 U.S. 983, 97 S. Ct. 498, 50 L. Ed. 2d
593 (1976); United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert.
denied, 414 U.S. 918, 94 S. Ct. 214, 38 L. Ed. 2d 154 (1973); Santana v. State,
677 So. 2d 1339, 1340 (Fla. App. 1996); State v. Brown, 131 Idaho 61, 72–73,
951 P.2d 1288 (App. 1998); State v. Eastman, 691 A.2d 179, 184 (Me. 1997);
Mitchell v. State, 114 Nev. 1417, 1428–29, 971 P.2d 813 (1998); State v.
Bonilla, 127 N.M. 566, 570, 985 P.2d 168 (App. 1999); State v. Fitzgibbon,
114 Or. App. 581, 586–87, 836 P.2d 154 (1992); and State v. Tiernan, 645
A.2d 482, 487–88 (R.I. 1994). See State v. Kelly, supra, 256 Conn. 81–82.
25
As examples of the minority approach, we cited: United States v. Capri-
ola, 537 F.2d 319, 321 (9th Cir. 1976); Hess v. United States, 496 F.2d 936,
938–39 (8th Cir. 1974); People v. Wilson, 43 Colo. App. 68, 71, 599 P.2d 970
(1979); and Johnson v. State, 274 Md. 536, 542–43, 336 A.2d 113 (1975). See
State v. Kelly, supra, 256 Conn. 82.
26
We observed that, ‘‘[c]onfronted with claims similar to that of the defen-
dant in this case, courts in other jurisdictions generally have required
remarks by a trial judge to threaten explicitly a defendant with a lengthier
sentence should the defendant opt for a trial, or indicate that a defendant’s
sentence was based on that choice.’’ State v. Kelly, supra, 256 Conn. 82. We
noted further that, when ‘‘a trial court employed more ambiguous language,
however, courts generally have rejected claims that the trial court infringed
on the defendant’s rights.’’ Id., 83; citing State v. Tiernan, 645 A.2d 482,
487 (R.I. 1994) (rejecting defendant’s due process challenge to trial court’s
observation at sentencing that defendant had ‘‘required [the victim] to testify
by exercising his right to stand trial’’ [internal quotation marks omitted]).
27
See General Statutes (Rev. to 2003) § 53a-35a (6) and (8); see also
General Statutes § 53a-59 (b) (first degree assault is class B felony); General
Statutes § 53a-95 (b) (unlawful restraint in first degree is class D felony);
General Statutes (Rev. to 2003) § 53a-40b (1) (ten year sentence enhance-
ment for felonies committed while on pretrial release).
28
In contrast, it would be inappropriate to use our supervisory power to
adopt a new rule when doing so would mandate administrative or policy
changes beyond the judicial milieu. See State v. Lockhart, supra, 298 Conn.
576–77 (deferring to legislature and declining to utilize supervisory power
to adopt rule requiring confessions to be recorded to be admissible where
its effect would go beyond judicial actors to require all law enforcement
agencies to record confessions where defendants were protected by ‘‘proce-
dures already in place to prevent the admission into evidence of involuntary
or untrustworthy confessions, namely, the voluntariness determination that
must be made by the trial court’’); State v. Marquez, 291 Conn. 122, 165–67,
967 A.2d 56 (declining to utilize supervisory authority to mandate three
procedural changes to identification procedures because ‘‘development and
implementation of identification procedures ‘should continue to be the prov-
ince of the law enforcement agencies of this state’ ’’ to be evaluated judicially
on case-by-case basis for unnecessary suggestiveness), cert. denied, 558
U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
29
It is well settled that ‘‘[t]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial court, nonetheless
requires reversal of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly extraordinary
situations where the existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the judicial proceed-
ings. . . .
‘‘[W]e recently clarified the two step framework under which we review
claims of plain error. First, we must determine whether the trial court in
fact committed an error and, if it did, whether that error was indeed plain
in the sense that it is patent [or] readily discernable on the face of a factually
adequate record, [and] also . . . obvious in the sense of not debatable. . . .
We made clear . . . that this inquiry entails a relatively high standard, under
which it is not enough for the defendant simply to demonstrate that his
position is correct. Rather, the party seeking plain error review must demon-
strate that the claimed impropriety was so clear, obvious and indisputable
as to warrant the extraordinary remedy of reversal.’’ (Internal quotation
marks omitted.) State v. Darryl W., 303 Conn. 353, 371–73, 33 A.3d 239
(2012); see also Practice Book § 60-5.
30
A comprehensive catalog of cases wherein we have utilized our supervi-
sory powers to articulate procedural rules in the criminal justice context
is set forth in Justice Palmer’s concurring opinion in State v. Lockhart,
supra, 298 Conn. 601–603 n.12. Analysis of these cases, and several decided
after Lockhart, reveals that they can be divided into two different categories.
In the first category are cases wherein we have utilized our supervisory
power to articulate a procedural rule as a matter of policy, either as holding
or dictum, but without reversing convictions or portions thereof. In the
second category are cases wherein we have utilized our supervisory powers
to articulate a rule or otherwise take measures necessary to remedy a
perceived injustice with respect to a preserved or unpreserved claim on
appeal. Although we recently have noted that, ‘‘[o]ur cases have not always
been clear as to the reason for this distinction’’; State v. Diaz, 302 Conn.
93, 107 n.11, 25 A.3d 594 (2011); a review of the cases in both categories
demonstrates that, in contrast to the second category, the first category
consists of cases where there was no perceived or actual injustice apparent
on the record, but the facts of the case lent themselves to the articulation
of prophylactic procedural rules that might well avert such problems in
the future.
Examples of the first category include: State v. Medrano, 308 Conn. 604,
631, 65 A.3d 503 (2013) (The court utilizes its supervisory power to ‘‘direct
our trial courts in the future to refrain from instructing jurors, when a
defendant testifies, that they may specifically consider the defendant’s inter-
est in the outcome of the case and the importance to him of the outcome
of the trial. Instead, we instruct the trial courts to use the general credibility
instruction to apply to a criminal defendant who testifies.’’); State v. Pena,
301 Conn. 669, 684, 22 A.3d 611 (2011) (declining to use supervisory power
to overrule State v. Huey, 199 Conn. 121, 505 A.2d 1242 [1986], but stating
that ‘‘we suggest that our trial courts in future sentencings refrain from
expressing disagreement with the jury’s verdict’’); State v. Ouellette, 295
Conn. 173, 191–92, 989 A.2d 1048 (2010) (when state attests to witness’
cooperation at that witness’ sentencing hearing, sentencing court must
‘‘inquire into the nature of any plea agreement between the state and the
witness, and any representations concerning that agreement made during
the trials at which the witness testified’’); State v. Ledbetter, 275 Conn. 534,
578–79, 881 A.2d 290 (2005) (requiring jury instruction concerning certain
risks inherent in eyewitness identification procedures), cert. denied, 547
U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006); State v. Padua, 273
Conn. 138, 178–79, 869 A.2d 192 (2005) (requiring appeals court to address
defendant’s insufficiency of evidence claim first, if claim is properly briefed
and sufficient record exists, even if another meritorious claim would result
in new trial, because successful sufficiency claim would render new trial
unnecessary); Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287 (2002)
(when criminal defendant pleads not guilty by reason of mental disease or
defect and state substantially agrees with defendant’s plea, court must can-
vass defendant to ensure that plea is voluntary and made with full awareness
of consequences); State v. O’Neil, 261 Conn. 49, 74–76, 801 A.2d 730 (2002)
(revising and directing specific version of ‘‘Chip Smith’’ charge in future
cases); State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (using
supervisory power to avoid ‘‘danger of juror misunderstanding’’ by ‘‘direct[-
ing] our trial courts in the future to refrain from instructing jurors that one
who uses a deadly weapon on the vital part of another ‘will be deemed to
have intended’ the probable result of that act and that from such a circum-
stance the intent to kill properly may be inferred’’); State v. Griffin, 253
Conn. 195, 209–10, 749 A.2d 1192 (2000) (prohibiting use of ‘‘two-inference’’
jury instruction as potentially misleading jury as to application of reasonable
doubt standard); State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125
(1999) (precluding jury instruction stating that reasonable doubt is not doubt
suggested by ‘‘ ‘ingenuity of counsel’ ’’); State v. Schiappa, 248 Conn. 132,
168, 728 A.2d 466 (prohibiting use of jury instruction that requirement of
proof beyond reasonable doubt is rule intended to ‘‘protect the innocent
and not the guilty’’ [internal quotation marks omitted]), cert. denied, 528
U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Coleman, supra,
242 Conn. 541–42 (concluding that record indicated that reversal was not
necessary after adopting rule requiring sentencing court, upon defendant’s
request, to articulate its reasons for imposing greater sentence after trial
than that previously imposed under terms of withdrawn plea agreement);
State v. Gould, 241 Conn. 1, 14–15, 695 A.2d 1022 (1997) (requiring that
videotaped deposition testimony be replayed in open court, under supervi-
sion of trial judge, and in presence of parties and counsel, rather than in
jury room, but holding no prejudice from failure to do so in that case);
State v. Patterson, 230 Conn. 385, 397–400, 645 A.2d 535 (1994) (adopting
unwaivable supervisory rule for future cases requiring trial judge to be
present in court to oversee voir dire in criminal trial, but determining that
defendant had waived his objection to judge’s absence as constitutional
matter); and State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166 (estab-
lishing procedure to be followed during jury selection when defendant raises
claim that state has peremptorily excluded juror on basis of race pursuant
to Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1715, 90 L. Ed. 2d 69
[1996]), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).
Examples of the second category include: State v. Polanco, 308 Conn.
242, 256–58, 61 A.3d 1084 (2013) (overruling merger approach articulated
in State v. Chicano, 216 Conn. 699, 584 A.2d 425 [1990], cert. denied, 501
U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 [1991], with vacatur approach
when defendant is convicted of greater and lesser included offenses); State
v. Rose, supra, 305 Conn. 605–606 (adopting rule of per se reversal when
defendant is compelled to stand trial in prison garb); State v. Connor, 292
Conn. 483, 518–19, 533, 973 A.2d 627 (2009) (remanding case to trial court for
findings after adopting rule requiring trial court, upon finding that mentally ill
or incapacitated criminal defendant is competent to stand trial and to waive
right to counsel at that trial, to make additional determination that defendant
is competent to conduct trial proceedings without counsel); State v. Gore,
288 Conn. 770, 787–90, 955 A.2d 1 (2008) (upholding reversal of conviction
after articulating rule that when criminal defendant seeks to waive right to
trial by jury without written waiver, court must canvass defendant to ensure
that waiver is knowing, intelligent and voluntary); State v. Santiago, supra,
245 Conn. 340 (remanding case for further proceedings after expanding
scope of inquiry required for general allegations of juror misconduct when
alleged misconduct results from racial bias of juror or jurors); State v.
Brown, 235 Conn. 502, 528–30, 668 A.2d 1288 (1995) (ordering remand for
further proceedings after adopting rule requiring trial judge presented with
allegations of juror misconduct to conduct preliminary inquiry into such
allegations); and State v. Jones, 234 Conn. 324, 347–50, 662 A.2d 1199 (1995)
(requiring bifurcation of jury trial proceedings in capital felony cases when
defendant is charged under General Statutes § 53a-54b [3], requiring proof
of prior intentional murder conviction, and placing burden on state to demon-
strate lack of need for bifurcated proceeding).
We have also utilized our supervisory powers in a very limited manner
to address claims of and deter repeated instances of prosecutorial impropri-
ety. For discussion of these cases, see footnote 31 of this opinion.
31
As noted by the state, we also have utilized our supervisory authority
to reach an unpreserved claim and reverse an individual conviction as a
sanction ‘‘to redress repeated and deliberate misconduct by a prosecutor
seeking to increase the likelihood of conviction even though that conduct
does not necessarily require reversal as a due process violation. . . . [W]e
pa[id] particular attention to the fact that the prosecutor knew or should
have known that the conduct was improper and was part of a pattern of
similar misconduct in other cases. We exercise[d] our supervisory authority
in order to protect the rights of defendants and to maintain standards
among prosecutors throughout the judicial system rather than to redress
the unfairness of a particular trial. We [did] so in order to send a strong
message that such conduct will not be tolerated.’’ (Internal quotation marks
omitted.) State v. Payne, 260 Conn. 446, 451–52, 797 A.2d 1088 (2002); see
also State v. Cohane, 193 Conn. 474, 499–500, 479 A.2d 763 (relying on
supervisory powers in reversing conviction after finding violation pursuant
to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963],
that merited reversal), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed.
2d 331 (1984); State v. Ubaldi, 190 Conn. 559, 576, 462 A.2d 1001 (utilizing
supervisory power to reverse conviction because ‘‘[w]here a prosecutor . . .
interjects remarks [during argument] deliberately intended to undermine the
rulings of the trial court to the prejudice of the defendant, his conduct is
so offensive to the sound administration of justice that only a new trial can
effectively prevent such assaults on the integrity of the tribunal’’), cert.
denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Our use of our
supervisory authority to resolve these claims in Payne and Ubaldi remains
consistent with the unifying principle that the supervisory power should
be utilized when necessary to protect the system’s integrity; leaving the
prosecutorial violations in those cases unaddressed would have adversely
affected public perception of the criminal justice system—at least in those
particular judicial districts.
32
Compare North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. 2072,
23 L. Ed. 2d 656 (1969) (adopting presumption of vindictiveness when trial
court imposes more severe sentence after new trial challenging original
conviction, and ‘‘to assure the absence of such a motivation,’’ requiring ‘‘that
whenever a judge imposes a more severe sentence upon a defendant after
a new trial, the reasons for his doing so must affirmatively appear’’ and ‘‘be
based upon objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original sentencing
proceeding’’), with Alabama v. Smith, 490 U.S. 794, 801, 109 S. Ct. 2201,
104 L. Ed. 2d 865 (1989) (Pearce presumption of vindictiveness does not apply
to higher sentence imposed after jury trial following successful challenge to
guilty pleas).
33
We did, however, note that Coleman did not raise any preservation
issues because, although the defendant did not request an articulation of
the second trial judge’s reason for imposing a greater sentence, he did argue
that the second trial judge could not impose a greater sentence, and the state
did not object to the court’s ‘‘consideration of the defendant’s supervisory
authority claim . . . .’’ State v. Coleman, supra, 242 Conn. 542 n.22.
34
We further observed that this ‘‘rule places little, if any, additional burden
on trial judges, who frequently are asked to articulate the reasons underlying
particular sentencing decisions. Furthermore, the number of cases in which
the rule will be applicable is likely to be extremely small.’’ State v. Coleman,
supra, 242 Conn. 542.
35
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
36
We noted that, in contrast, under Bordenkircher v. Hayes, supra, 434
U.S. 363, the prosecutor may ‘‘[threaten] increased charges during the course
of plea negotiations and mak[e] good on the threat if the defendant refuses
to enter a plea’’; State v. Revelo, supra, 256 Conn. 514; but emphasized that
the trial court may not do so when participating in negotiations; the court
may, however, apprise the defendant of the potential for a greater sentence
should he not take the plea offer. See id., 516.
37
‘‘[I]n certain circumstances, it may be difficult to draw a meaningful
distinction between ‘enhancing’ the punishment imposed on an accused
who exercises a constitutional right and denying him the ‘leniency’ that he
claims he would deserve if he waived that right. . . . Although the distinc-
tion between refusing to show leniency to an accused who insists on
asserting a constitutional right and punishing an accused for asserting that
right may, at times, be a fine one, there is no difficulty in discerning what
occurred in this case: the trial court imposed a more severe sentence on
the defendant solely because he asserted his right to a judicial ruling on
his motion to suppress. In doing so, the trial court unfairly punished the
defendant for exercising that right in violation of the federal due process
clause.’’ (Citation omitted.) State v. Revelo, supra, 256 Conn. 513–14.
This ‘‘fine distinction’’ between extending leniency to defendants who
plead guilty and penalizing those who exercise their right to a trial has
recently been criticized as an analytical fiction that ‘‘changes merely the
form of the problem, not the substance’’ and therefore ‘‘fails to alleviate the
constitutional difficulties.’’ C. Hessick & F. Hessick, ‘‘Recognizing Constitu-
tional Rights at Sentencing,’’ 99 Cal. L. Rev. 47, 64 (2011); see also id., 63
(‘‘[t]he refusal to grant a defendant leniency that is given to others because
the defendant performed some act—exercising his right to a jury—seems
analytically indistinct from increasing that defendant’s punishment because
he performed that same act’’).
38
In his concurring and dissenting opinion, Judge Bishop described our
criminal justice system as ‘‘almost completely reliant on the plea bargaining
process for the disposition of criminal cases,’’ citing statistics from the
Judicial Branch’s biennial reports for the fiscal years of 2004–2005, 2005–
2006, 2006–2007 and 2007–2008, demonstrating that approximately 95 per-
cent of criminal cases are resolved by plea bargaining, rather than trial.
State v. Elson, supra, 125 Conn. App. 393 n.7.
The most recent statistics for the fiscal years of 2010–2011 and 2011–2012
indicate that Judge Bishop’s observation retains its currency. See Connecti-
cut Judicial Branch, Biennial Report and Statistics 2010–2012, pp. 50–51
(indicating that 5.1 percent, or 177 out of 3450, of criminal cases were
disposed via trial in 2010–2011 and 4.8 percent, or 164 out of 3386, of criminal
cases were disposed via trial in 2011–2012), available at http://jud.ct.gov/
Publications/BiennialReport2010-12.pdf (last visited April 21, 2014).
39
We acknowledge that there is no indication, in the record or otherwise,
that judicial comments of this ilk are a pervasive or repeated occurrence,
either systemically or on the part of the trial judge in this case, and we
emphatically do not insinuate to the contrary. Thus, our use of supervisory
powers to reverse the sentence in this case is not one intended as a penalty
or ‘‘message,’’ such as that sent in the prosecutorial misconduct cases dis-
cussed in footnote 31 of this opinion. We emphasize, however, that we view
the very nature of the trial judge’s comments in this case as implicating
the public’s perception of the fairness of the judicial system, despite their
apparent infrequency.
40
For a more detailed discussion of State v. Kelly, supra, 256 Conn. 79–82,
see part I B of this opinion.
41
See, e.g., State v. Santiago, 305 Conn. 101, 164, 49 A.3d 566 (2012) (for
due process purposes, ‘‘determination of whether a confession is voluntary
must be based on a consideration of the totality of circumstances sur-
rounding it . . . including both the characteristics of the accused and the
details of the interrogation’’ [internal quotation marks omitted]); State v.
Marquez, supra, 291 Conn. 161 (‘‘any analysis of unnecessary suggestiveness
must be conducted in light of the totality of the circumstances and must
focus specifically on the presentation of the photographic array itself as
well as the behavior of law enforcement personnel to determine if the
procedure was designed or administered in such a way as to suggest to
the witness that a particular photograph represents the individual under
suspicion’’); see also State v. D’Antonio, supra, 274 Conn. 693 n.22 (conclud-
ing that trial court’s failure to follow rule set forth in State v. Niblack, 220
Conn. 270, 280, 596 A.2d 407 [1991], precluding judge who participated in
plea bargaining from presiding at trial and sentencing is not due process
violation that ‘‘require[s] per se reversal, but rather is protected by appellate
review of the record for actual indications that the appearance of impartiality
has been shattered’’); see also State v. D’Antonio, supra, 680, 691–92 (viola-
tion of prophylactic Niblack rule, which ‘‘established a clear and bright line
rule standing for the proposition that it is improper for a trial judge to preside
over a defendant’s trial after having participated actively in unsuccessful plea
negotiations in the case’’ is not by itself plain error ‘‘requir[ing] reversal
when the record demonstrates that the defendant otherwise has received
a fair trial and sentencing before an impartial court, and that the core danger
of judicial vindictiveness has not been realized’’).
42
In his concurring opinion, Judge Robinson relied on our decision in
State v. Chambers, 296 Conn. 397, 413–14, 994 A.2d 1248 (2010), in support
of his conclusion that, in the absence of an articulation by the trial judge,
the record was inadequate to sustain the Appellate Court’s invocation of
its supervisory powers. State v. Elson, supra, 125 Conn. App. 375–77. Cham-
bers is, however, inapposite. In that case, we deemed the record inadequate
to determine, under either Golding or our supervisory authority, whether
an meeting in chambers between the court, the prosecutor and defense
counsel was a critical stage of the proceeding at which the defendant had
a constitutional right to be present. State v. Chambers, supra, 410–11. We
noted the fact-intensive nature of that particular inquiry and concluded that,
in the absence of an articulation or rectification, the record was inadequate
because the only evidence concerning ‘‘what transpired in chambers con-
sist[ed] of two passing references by [the trial court] indicating merely that
there had been such a meeting.’’ Id., 413. This case is readily distinguishable
from Chambers because the record in the present case contains a transcript
of the sentencing proceeding that details exactly what happened in the
courtroom while, in essence, the record in Chambers contained no informa-
tion regarding what had transpired in the judge’s chambers outside the
presence of the defendant.
43
We acknowledge that this does happen on rare occasion. See State v.
Kelly, supra, 256 Conn. 82 (‘‘I’m the kind of a judge where you get a fair
trial . . . [but] [i]f I find that after the trial that you didn’t have a defense
at all, you’re going to get the maximum, because you’re playing games with
me’’ [internal quotation marks omitted]), quoting United States v. Cruz, 977
F.2d 732, 733 (2d Cir. 1992); United States v. Hutchings, 757 F.2d 11, 13
(2d Cir. 1985) (The judge stated at the sentencing that the trial was ‘‘a ‘total
waste of public funds and resources . . . there was no defense in this case.
[The defendant] was clearly and unquestionably guilty, and there should
have been no trial.’ ’’); People v. Mosko, 190 Mich. App. 204, 210, 475 N.W.2d
866 (1991) (‘‘ ‘I am very concerned about this case . . . because it was a
case that went to trial . . . [a]nd to get up on the stand and . . . [be]
sanctimonious and you’re self-righteous and you’re guilty, that seems to me
to be something that is—that is beyond [decent]’ ’’).
44
Like Judge Bishop, we do not discount the importance of victim impact
evidence in the sentencing determination. See State v. Elson, supra, 125
Conn. App. 397 and 397–98 n.11; see also State v. Coleman, supra, 242
Conn. 546–48 (describing trial testimony and information in presentence
investigation report about traumatic effects of sexual assault on victim).
Nevertheless, the exercise of a defendant’s right to a trial, which includes
its concomitant effect on victims or witnesses from the act of having to
testify, remains an improper factor to consider in sentencing. See Abdul-
Maleek v. State, 426 Md. 59, 73–74, 43 A.3d 383 (2012) (remanding for
resentencing because trial court’s remarks referring to victim having to
testify twice could lead to inference that defendant was being penalized for
exercising his right to trial de novo in higher trial court); People v. Jackson,
474 Mich. 996, 707 N.W.2d 597 (2006) (remanding case for resentencing
because although ‘‘crime was extremely brutal . . . the sentencing judge
stated that she did not believe that [the] defendant was entitled to the same
sentence as his accomplices, ‘who were able to step up to the plate and
say what they did and to admit their guilt,’ while [the] defendant subjected
the victims to ‘having to testify’ ’’); State v. Ambriez, Docket No. L-03-105137,
2004 WL 2334176, * 4–5 (Ohio App. September 24, 2004) (concluding that
trial court improperly augmented sentence on basis of trial election because
trial court stated that ‘‘ ‘there’s no genuine remorse, because we had to
proceed to trial; and obviously with your statement there’s no genuine
remorse, all of which makes recidivism more likely, thus would tip the
scales on the side of [a] prison term’ ’’); State v. Reid, 140 Or. App. 293,
299, 915 P.2d 453 (1996) (remanding for resentencing because, although
‘‘defendant’s empathy—or lack thereof—is appropriate to a court’s consider-
ation of what sentence should be imposed,’’ trial court’s comments about
putting daughter through trauma of trial resulted in ‘‘the exercise of his
constitutional right to a trial [being] woven into the court’s departure find-
ings’’); cf. State v. Holmes, Docket No. L-08-1034, 2009 WL 4270260, *3, 5
(Ohio App. November 20, 2009) (concluding that trial court’s comments
criticizing defendant for ‘‘ ‘violat[ing] [the victim] a second time by forcing
us to go to trial in this case’ ’’ were improper but could not have affected
sentence because ‘‘trial court made its comments after sentencing, without
indicating whether its considerations were tied to the sentence’’ [emphasis
omitted]); but see State v. Farnham, 479 A.2d 887, 892 (Me. 1984)
(‘‘[a]lthough [the] defendant had an absolute right to a trial . . . he cannot
escape the fact that his exercise of those rights are probative of his attitude
towards the victim and society’’); State v. Tiernan, 645 A.2d 482, 487 (R.I.
1994) (rejecting due process challenge to trial court’s observation at sentenc-
ing that defendant had ‘‘ ‘required [the victim] to testify’ by exercising his
right to stand trial’’).
45
Like Judge Bishop, we are not ‘‘insensitive to the trauma realized by
victims who must often relive the experiences of criminal acts inflicted
upon them,’’ and recognize that to ‘‘give consideration to a defendant who
pleads guilty and thus saves the victim from having to testify is a hallmark
of our plea bargaining system.’’ State v. Elson, supra, 125 Conn. App. 397
n.11. To this end, the exercise of our supervisory authority in this appeal
is calculated to minimize the need for new sentencing proceedings, with a
retraumatizing effect, that might result from inherently subjective appellate
evaluations under State v. Kelly, supra, 256 Conn. 79–80, of trial courts’
comments referring to a defendants’ election to stand trial. The bright line
rule that we articulate herein better illustrates the outer bounds of what
trial judges permissibly may say in sentencing a defendant without raising
due process concerns.
46
In determining that resentencing is appropriate under our supervisory
powers, we find instructive the balancing of interests utilized in determining
whether to order a new trial under our supervisory powers as a remedy for
prosecutorial impropriety; see footnote 31 of this opinion; namely, ‘‘the
extent of prejudice to the defendant; the emotional trauma to the victims
or others likely to result from reliving their experiences at a new trial; the
practical problems of memory loss and unavailability of witnesses after
much time has elapsed; and the availability of other sanctions for such
misconduct.’’ (Internal quotation marks omitted.) State v. Diaz, 302 Conn.
93, 107 n.11, 25 A.3d 594 (2011), quoting State v. James G., 268 Conn. 382,
423, 844 A.2d 810 (2004).
Under these factors, and particularly with respect to the victim in this
case, as the defendant points out, our remedy in this certified appeal will
not require her to relive the trauma created by the defendant’s actions. The
victim’s previous statement is on record and may be considered by the
trial court at the defendant’s resentencing, should she desire not to return
to court.