State v. Elson (concurring)

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. ELSON SECOND CONCURRENCE DUPONT, J., concurring in part. I concur in the majority opinion and agree that the judgment of the trial court should be affirmed. I write separately to express my disagreement with the majority s interpretation of the meaning of affirmative request as used by our Supreme Court in order to determine whether a defendant can obtain review pursuant to State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989), of a claimed constitutional deprivation that was not preserved at trial, and with the majority s decision to overrule in part State v. Wright, 114 Conn. App. 448, 969 A.2d 827 (2009).1 This appeal was first argued in the 2008 2009 court year before a three judge panel of this court and was the subject of a published opinion, State v. Elson, 116 Conn. App. 196, 975 A.2d 678 (2009). This court granted en banc reargument and reconsideration of the original Elson decision. The same briefs of the parties used in the original case were used in this case on reconsideration. On appeal, the defendant, Zachary Jay Elson, claimed in his main brief that the court considered improper factors at the time of his sentencing, thereby depriving him of his right to due process of law afforded by the federal constitution. He provided an excerpt of the transcript of the sentencing with citation to the specific statements that he claimed demonstrated that the trial court considered his decision to stand trial as a factor in his sentencing, thereby impermissibly punishing him for exercising a constitutional right. The defendant raised and adequately briefed the constitutional claim in his main brief. In its brief, the state argued that the defendant s claim was not reviewable because he had failed to preserve it at trial and had failed to invoke any doctrine of extraordinary review of the claim on appeal. In its brief, the state, explicitly arguing in the alternative, also analyzed the defendant s constitutional claim on its merits. The defendant requested review of this claim pursuant to Golding in his reply brief. In my opinion, the question is whether the defendant had made in his main brief an affirmative request for review pursuant to Golding and its progeny in order to obtain such review based on Golding itself and subsequent Supreme Court cases. The author of the original Elson decision declined to review the unpreserved claim because the defendant did not cite Golding, or assert that his claim was not preserved for appellate review or otherwise affirmatively request review pursuant to Golding in his main brief. State v. Elson, supra, 116 Conn. App. 239 40. In a concurring opinion, I determined that the unpreserved claim was reviewable under Golding but that the claim failed to satisfy the third prong of Golding because the defendant failed to demonstrate that the alleged constitutional violation clearly existed and clearly deprived him of a fair trial. Id., 245 (Dupont, J., concurring in part).2 Upon a rehearing and a reconsideration of the reviewability of the sentencing issue, the majority has concluded that because the defendant did not affirmatively request Golding review of the unpreserved claim, he was not entitled to such review. The majority defines such an affirmative request as 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. See part I of the majority opinion. Our Supreme Court has not, in any case of which I am aware, defined precisely or amplified what it meant by the phrase affirmative request for appellate review of an unpreserved constitutional claim, as originally used in State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002) ( [a] party is obligated . . . affirmatively to request review under [Golding] ). It is my hope that our Supreme Court will elucidate the phrase in order that this court and the Connecticut bar can know what may be needed, if anything, to implement that court s decision in Golding. Specifically, our Supreme Court has not yet decided whether the phrase is intended to expand or modify the original directions of Golding, namely, its first two prongs. I depart from the majority insofar as it interprets the affirmative request requirement as requiring anything more than satisfying the first two prongs of Golding itself. Accordingly, I would not overrule State v. Wright, supra, 114 Conn. App. 448. Golding followed the case of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). In Evans, our Supreme Court established review for unpreserved claims that constituted exceptional circumstances . . . . Id., 70. The court recognized two situations that may constitute exceptional circumstances such that newly raised claims can and will be considered by [an appellate] court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second exceptional circumstance may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. (Citation omitted.) Id. These exceptional circumstances were intended to strike the proper balance between protecting the constitutional rights of defendants and the court s interest in reviewing only properly preserved claims, thus avoiding trial by ambuscade of the trial court. Claimed constitutional violations normally should be brought to the attention of the trial court, where they can be addressed and remedied. See State v. Canales, 281 Conn. 572, 581, 916 A.2d 767 (2007). Over time, the second exceptional circumstance came to be relied on in so many cases that it ceased to be exceptional. The rule in Evans made it difficult for the court to address the reviewability issue without actually reviewing the claim on its merits, thus resulting in a variety of approaches.3 This court, for example, attempted to disentangle the issue of reviewability from the merits of the claim by adopting a four part approach in State v. Thurman, 10 Conn. App. 302, 305 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987),4 an approach that was cited favorably by our Supreme Court in State v. Bailey, 209 Conn. 322, 329 n.4, 551 A.2d 1206 (1988), and was employed by this court in numerous decisions.5 In 1989, our Supreme Court acknowledged that the methodologies used under the Evans standard were inconsistent and, in Golding, articulate[d] guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal. State v. Golding, supra, 213 Conn. 239.6 The court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation 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 in original.) Id., 239 40. Case law is clear that [t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail. (Internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002). In the present matter, the majority concludes that our Supreme Court later added a gloss to Golding that an appellant s entitlement to a Golding review must be requested affirmatively in the main brief. This gloss is traced to State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997), in which the court admonished: [D]efendants who seek consideration of unpreserved constitutional claims [on appeal] . . . bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding. In Waz, the court addressed the defendant s unpreserved constitutional claim, despite the defendant s failure to make an express reference to the guidelines specified in Golding. In State v. Ramos, supra, 261 Conn. 170 71, the court concluded that the defendant had not preserved his objection to a particular jury instruction. The court declined to review the claim, relying in part on State v. Waz, supra, 371 n.11, stating: [A] defendant may prevail on an unpreserved claim under Golding or the plain error doctrine. . . . A party is obligated, however, affirmatively to request review under these doctrines. (Citations omitted.) State v. Ramos, supra, 171. This was the first time our Supreme Court expressly associated an affirmative request requirement with a Golding review of unpreserved claims. Although the majority in the present case has cited numerous instances since Ramos in which our Supreme Court has reiterated that an appellant has a duty to affirmatively request Golding review, that court has not expressly defined what form such an affirmative request must take.7 Our Supreme Court has come close, however, to equating an affirmative request with compliance with the first two prongs of Golding. In State v. Bowman, 289 Conn. 809, 815, 960 A.2d 1027 (2008), the court stated: [I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. 239 40]. (Internal quotation marks omitted.) Immediately after these words, the court quotes Ramos as follows: A party is obligated . . . affirmatively to request review under these doctrines. State v. Ramos, supra, 171 . . . . (Citation omitted; internal quotation marks omitted.) State v. Bowman, supra, 815. It would appear that the word doctrines relates to the plain error doctrine or the rule set forth in Golding. Furthermore, after stating that a party is obligated affirmatively to request review, the court, citing Waz, explains that defendants who seek consideration of unpreserved constitutional claims [on appeal] . . . bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding . . . . (Internal quotation marks omitted.) Id. The plain meaning of these words appears to equate affirmatively with establishing a right to review under the guidelines of Golding. Furthermore, if affirmative is equated with a specific reference to Golding or an explicit plea for review pursuant to Golding, I believe that the philosophy underlying the case would be compromised. Regardless of the meaning of the phrase affirmative request, Connecticut case law has remained essentially unchanged. The rationale underlying both Evans and Golding remains that fundamental constitutional rights are of such importance that appellate courts should review claims of alleged constitutional violations even when a defendant fails to take an exception to the alleged violation at the trial court level. Much like requests for review pursuant to Evans, requests for Golding review of unpreserved claims of constitutional magnitude have proliferated like kudzu8 in our appellate system. Because of the ubiquitous presence of Golding review in our jurisprudence, it would be difficult for the state or the reviewing court to fail to perceive that such a review of an unpreserved constitutional issue is sought. If the defendant has provided an adequate record for review and has demonstrated through adequate briefing in his main brief that his unpreserved claim alleges a claim of constitutional magnitude, that is, the violation of a constitutional right, it is my belief that the defendant has alerted opposing counsel and the reviewing court sufficiently to be equated with and tantamount to a request for Golding review. This is the approach employed in State v. Wright, supra, 114 Conn. App. 448. In that case, the defendant claimed a constitutional violation in his main brief and provided an adequate record for review. Id., 456. The state in its brief argued that the claim was unreviewable because it was not preserved at trial and the defendant did not request review pursuant to Golding. Id. The state in its brief argued in the alternative that if the court found the claim to be reviewable, the claim failed on its merits. Id., 456 57. Wright is indistinguishable from Elson in these respects. As noted in Wright: This court s ability to review a claim, and the defendant s ability to prevail on his claim, are two entirely different concepts. . . . As the Supreme Court stated in Golding, the defendant bears the responsibility for providing a record that is adequate for review of his claim and demonstrating that his claim is indeed a violation of a fundamental constitutional right, thereby satisfying the first and second prongs. . . . Should the defendant do so, [an appellate court] will [then] review [the claim] and arrive at a conclusion as to whether . . . the third and fourth prongs [are satisfied]. (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 458. This court held in Wright: [It is not] mandatory for a defendant to cite Golding to obtain review of an unpreserved claim of a constitutional deprivation at trial, [but] we do require that a defendant 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.) Id., 463. Nothing in the approach in Wright is contrary to established Supreme Court precedent. The approach is wholly consistent with State v. Waz, supra, 240 Conn. 371 n.11, as it properly places on appellants who seek consideration of their unpreserved claims of constitutional magnitude the burden of establishing their entitlement to such review under the guidelines enumerated in Golding. In addition, this approach promotes judicial economy, as it provides a lessened need 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 because counsel failed to affirmatively request Golding review, when counsel did provide an adequate record for review and adequately briefed an unpreserved claim of constitutional magnitude. Our Supreme Court has not yet expressly defined an affirmative request as anything other than satisfying the first two prongs of Golding.9 For these reasons, I do not believe that this court should overrule in part State v. Wright, supra, 114 Conn. App. 448, or should decline to review an unpreserved constitutional claim because of a lack of an affirmative request for review. I do, however, concur in the result reached by the majority opinion for the reasons stated in State v. Elson, supra, 116 Conn. App. 240 46 (Dupont, J., concurring in part). 1 [A] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it . . . . (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809, 817, 960 A.2d 1027 (2008). Neither party in Wright petitioned our Supreme Court for review. I believe that Wright is logically and legally robust and does not contravene any Supreme Court or Appellate Court decision. See W. Horton & K. Bartschi, 2009 Appellate Review, 84 Conn. B.J. 1, 13 (2010) (noting that [i]n State v. Wright, [supra, 114 Conn. App. 448], the court held that the defendant need not cite Golding by name to invoke Golding review but not commenting on soundness of that holding). 2 The third member of the original panel would have reached the issue by invoking our supervisory power over the administration of justice and would grant remand of this case to the trial court for resentencing. See State v. Elson, supra, 116 Conn. App. 246 (Bishop, J., concurring in part and dissenting in part). My conclusion that the defendant failed to demonstrate that the alleged constitutional violation clearly deprived him of a fair trial should not be construed as my approval of the comments made by the judge at sentencing. 3 See S. Sellers, State v. Golding: A Standardless Standard?, 65 Conn. B.J. 245, 246 51 (1991). 4 We must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question. . . . The first two questions relate to whether a defendant s claim is reviewable, and the last two relate to the substance of the actual review. . . . First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? . . . Second, is the defendant s constitutional claim adequately supported by the record? . . . Third, was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? . . . Fourth, did the deprivation deny the defendant a fair trial, thereby requiring that his conviction be set aside? (Citations omitted; internal quotation marks omitted.) State v. Thurman, supra, 10 Conn. App. 306 307. 5 See, e.g., State v. Robinson, 14 Conn. App. 40, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988); State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988); State v. Arroyo, 13 Conn. App. 687, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988); State v. Vega, 13 Conn. App. 438, 537 A.2d 505 (1988); State v. Peterson, 13 Conn. App. 76, 534 A.2d 1237 (1987); State v. Griffin, 12 Conn. App. 221, 530 A.2d 210 (1987); State v. Day, 12 Conn. App. 129, 529 A.2d 1333 (1987); State v. Diorio, 12 Conn. App. 74, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988); State v. Foshay, 12 Conn. App. 1, 530 A.2d 611, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987); State v. McKenna, 11 Conn. App. 122, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987); State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). 6 In State v. Golding, supra, 213 Conn. 233, our Supreme Court reversed a decision by this court. Our court had concluded that the defendant s claim was not reviewable under Evans because it failed to satisfy the second question of Thurman, as it was not truly of constitutional proportions, but [was] simply characterized by her as such. State v. Golding, 14 Conn. App. 272, 279, 541 A.2d 509 (1988), rev d, 213 Conn. 233, 567 A.2d 823 (1989). The issue was whether the amount obtained by fraud was an essential element of the crime charged, and the Supreme Court concluded that it was. State v. Golding, supra, 213 Conn. 238. The court stated: [T]he Appellate Court erred by refusing to review the defendant s claim since she proffered a constitutional claim and the record was clearly adequate to review that claim. Id. Our Supreme Court thus admonished this court that review of an unpreserved constitutional deprivation should be granted if a defendant has made a constitutional claim and presented a record adequate for such a review. 7 See In re Jan Carlos D., 297 Conn. 16, 20 n.10, 997 A.2d 471 (2010) (declining to review respondent s unpreserved claim of constitutional due process violation because Golding review not requested); In re Melody L., 290 Conn. 131, 167, 962 A.2d 81 (2009) (declining to review unpreserved constitutional claim for trial by jury in termination of parental rights case when appellant merely asserts in one sentence that her claim is subject to Golding review without providing any analysis of the four prongs ); State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822 (declining to review unpreserved constitutional claim when defendant failed to brief entitlement to Golding review in main brief), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007); Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (declining to review unpreserved claim of constitutional due process violation when the petitioner makes only a passing reference to Golding for the first time in his reply brief and fails to brief his entitlement to Golding review ). But see Johnson v. Commissioner of Correction, 288 Conn. 53, 68 69, 951 A.2d 520 (2008) (Palmer, J., concurring), in which two justices would have reviewed the defendant s unpreserved constitutional claim under Golding because the state had briefed and argued the issue and the defendant made all of the same arguments he would have made had he cited Golding in his main brief. See also State v. Alvarez, 216 Conn. 301, 315 16, 579 A.2d 515 (1990) (court presumed defendant sought Evans-Golding review); State v. Moye, 214 Conn. 89, 97 98, 570 A.2d 209 (1990) (same). Two recent cases, State v. Tomas D., 296 Conn. 476, 496 n.28, 995 A.2d 583 (2010), and State v. Chambers, 296 Conn. 397, 410 11, 994 A.2d 1248 (2010), leave the phrase affirmative request for review undefined. 8 Kudzu (pueraria montana) is generally defined as a rapid growing vine, native to Japan and China, with dense foliage consisting of woody, hairy stems and large, compound leaves. Once established, kudzu plants grow rapidly, extending as much as sixty feet per season at a rate of about one foot per day. It is considered an invasive vine present in the southern and eastern portions of the United States. See United States Dept. of Agriculture, Forest Service, Weed of the Week, October 12, 2004, available at http:// na.fs.fed.us/fhp/invasive plants/weeds/kudzu.pdf (last visited November 16, 2010). 9 The saga of Golding begins with Evans and is interspersed with many other decisions since Golding over the past twenty years, but the saga has not yet ended, and cannot end until our Supreme Court provides additional guidance.

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