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