Opinion
SC 20622
07-25-2023
Benjamin BOSQUE v. COMMISSIONER OF CORRECTION
Deren Manasevit, assigned counsel, for the appellant (petitioner). Sarah Hanna, former senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Emily Trudeau, assistant state's attorney, for the appellee (respondent).
Deren Manasevit, assigned counsel, for the appellant (petitioner).
Sarah Hanna, former senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Emily Trudeau, assistant state's attorney, for the appellee (respondent).
Robinson, C. J., and McDonald, D'Auria, Mullins and Ecker, Js.
ECKER, J.
This is a certified appeal taken by the petitioner, Benjamin Bosque, challenging the Appellate Court's dismissal of his appeal from the habeas court's denial of his petition for certification to appeal. The petitioner claims that the Appellate Court incorrectly concluded that unpreserved claims not included in the petition for certification are unreviewable under the plain error doctrine 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). See Bosque v. Commissioner of Correction , 205 Conn. App. 480, 486–89, 257 A.3d 972 (2021). In Banks v. Commissioner of Correction , 347 Conn. 335, 350–77, 297 A.3d 541 (2023), also released today, we held that unpreserved claims challenging the habeas court's handling of the habeas proceeding itself are reviewable under the plain error doctrine and Golding , despite the failure to include those claims in the petition for certification to appeal, if the appellant can demonstrate that the claims are nonfrivolous because they involve issues that "are debatable among jurists of reason; that a court could resolve [them in a different manner]; or that [they] are adequate to deserve encouragement to proceed further." (Emphasis in original; internal quotation marks omitted.) Simms v. Warden , 230 Conn. 608, 616, 646 A.2d 126 (1994). Because the Appellate Court dismissed the petitioner's uncertified appeal without first considering whether his unpreserved claims are nonfrivolous under the Simms criteria, we reverse the judgment of the Appellate Court and remand for consideration of that issue consistent with the principles set forth in Banks .
We granted the petitioner's petition for certification to appeal, limited to the following two issues: (1) "Did the Appellate Court correctly interpret Ajadi v. Commissioner of Correction , 280 Conn. 514, 911 A.2d 712 (2006), Cookish v. Commissioner of Correction , 337 Conn. 348, 253 A.3d 467 (2020), and other decisions of this court in concluding that plain error review of challenges to the habeas court's handling of the habeas proceedings is unavailable for any issue that is not included in the petition for certification to appeal?" And (2) "[d]id the Appellate Court correctly interpret Mozell v. Commissioner of Correction , 291 Conn. 62, 967 A.2d 41 (2009), Moye v. Commissioner of Correction , 316 Conn. 779, 114 A.3d 925 (2015), and other decisions of this court in concluding that review under State v. Golding , [supra, 213 Conn. 233, 567 A.2d 823], of challenges to the habeas court's handling of the habeas proceedings is unavailable for any issue that is not included in the petition for certification to appeal?" Bosque v. Commissioner of Correction , 338 Conn. 908, 908–909, 258 A.3d 1281 (2021).
The Appellate Court's opinion sets forth a complete recitation of the factual and procedural history of this case. See Bosque v. Commissioner of Correction , supra, 205 Conn. App. at 482–83, 257 A.3d 972.
The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.
In this opinion McDONALD and D'AURIA, Js., concurred.
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, 297 A.3d 541 (2023) (Robinson, C. J. , dissenting), also released today, I respectfully disagree with the majority's conclusion that General Statutes § 52-470 (g) permits appellate review of unpreserved claims challenging a habeas court's handling of a proceeding under either the plain error doctrine 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), 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, at 361–77, 297 A.3d 541 (Robinson , C. J. , dissenting). Accordingly, I respectfully dissent.
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."
"[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).
"[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. at 239–40, 567 A.2d 823 ; see In re Yasiel R. , supra, 317 Conn. at 781, 120 A.3d 1188 (modifying third prong of Golding ).