Diaz v. Comm'r of Corr.

• Decision Date: 07 April 2020
• Docket Number: SC 20233
• Citation: 335 Conn. 53,225 A.3d 953
• Court: Connecticut Supreme Court
• Parties: Raul DIAZ v. COMMISSIONER OF CORRECTION

335 Conn. 53

225 A.3d 953

Raul DIAZ

v.COMMISSIONER OF CORRECTION

SC 20233

Supreme Court of Connecticut.

Argued November 20, 2019

Officially released April 7, 2020

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Matthew Gedansky, state's attorney, and Melissa Patterson and David M. Carlucci, assistant state's attorneys, for the appellee (respondent).

Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^*

PALMER, J.

The petitioner, Raul Diaz, appeals, following our grant of certification, from the judgment of the Appellate Court, which affirmed the judgment of the habeas court denying his amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. See Diaz v. Commissioner of Correction , 185 Conn. App. 686, 687, 691, 198 A.3d 171 (2018). The petitioner asserts, and the respondent, the Commissioner of Correction, agrees, that the Appellate Court improperly raised and decided the unpreserved issue of waiver without first providing the parties with an opportunity to be heard on that issue in contravention of Blumberg Associates Worldwide, Inc . v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 84 A.3d 840 (2014) ( Blumberg ). We agree and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court for further proceedings in accordance with this opinion.

The following facts and procedural history, as set forth in the opinion of the Appellate Court, are relevant to our resolution of this appeal. "On October 27, 2011, the petitioner entered the Ellington home of the seventy-seven year old victim when he was not there. While the petitioner was still in the home, the victim returned. The petitioner asked the victim to step aside so that he could flee the home, but the victim refused. The petitioner struck the victim with a jewelry box, resulting in a laceration [to the victim's] head and a broken nose and cheekbone. After taking the victim's wallet and car keys, the petitioner fled in the victim's car but was later apprehended.

"The petitioner was charged in a substitute information with two counts of home invasion in violation of General Statutes § 53a-100aa,¹ two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and (2), one count of larceny in the third degree in violation of General Statutes § 53a-124, one count of larceny in the fourth degree in violation of General Statutes § 53a-125, one count of assault in the second degree in violation of General Statutes § 53a-60b, and one count of robbery in the first degree involving a dangerous instrument in violation of General Statutes § 53a-134 (a) (3). On April 26, 2013, after the petitioner entered into a plea agreement with the state, he pleaded guilty under the Alford doctrine² to one count of home invasion in violation of § 53a-100aa (a) (2). After a thorough canvass, the court accepted the plea, rendered a judgment of conviction and sentenced the petitioner in accordance with the plea agreement to twenty-five years imprisonment. The petitioner did not appeal from the judgment of conviction.

"Thereafter, the petitioner commenced this habeas action. On February 25, 2016, the petitioner filed an amended petition for a writ of habeas corpus, alleging, [inter alia], that his trial counsel had rendered ineffective assistance by failing to file a motion to dismiss the home invasion charge on the ground that it was duplicative of the first degree burglary charge. After a trial, the habeas court issued a memorandum of decision [and denied] the petition ... [agreeing with the respondent] that the petitioner had failed to establish that his trial counsel deficiently performed by not filing a motion to dismiss the home invasion charge. The habeas court found that, although the petitioner's trial counsel agreed with the state's assessment that the petitioner violated the home invasion statute, he nonetheless argued, [albeit] unsuccessfully, to the [trial] court and the prosecutor that the home invasion charge should be dropped, and in any event that the petitioner should be allowed to plead to the first degree burglary charge instead of the home invasion charge. Moreover, the habeas court agreed with his trial counsel's testimony ... that there was no good faith basis on which to bring a motion to dismiss the home invasion charge in the trial court. The habeas court further concluded that, even if the petitioner's trial counsel had deficiently performed, which he had not, the petitioner was not prejudiced." (Footnote added; footnote in original.) Diaz v. Commissioner of Correction , supra, 185 Conn. App. at 687–89, 198 A.3d 171.

The petitioner thereafter filed a petition for certification to appeal, which the habeas court granted, and the petitioner then appealed to the Appellate Court. The petitioner claimed on appeal that the habeas court incorrectly concluded that his trial counsel's failure to file a motion to dismiss the home invasion charge did not constitute ineffective assistance of counsel. Id., at 689, 198 A.3d 171. In response, the respondent renewed the argument that he had made in the habeas court, namely, that the petitioner's claim of ineffective assistance lacked merit. In its opinion affirming the judgment of the habeas court, however, the Appellate Court did not address the merits of the petitioner's contention that his counsel had rendered ineffective assistance. Rather, the Appellate Court affirmed the habeas court's judgment on an altogether different ground, namely, that the petitioner had waived his ineffective assistance claim by virtue of the entry and acceptance of his Alford plea. Id., at 691, 198 A.3d 171. The Appellate Court resolved the appeal on the basis of waiver even though the respondent had not raised a claim of waiver, either in the habeas court³ or in the Appellate Court, and without first affording the parties the opportunity to be heard on the issue of waiver.

We thereafter granted the petitioner's petition for certification to appeal to this court, limited to the following issue: "Did the Appellate Court properly affirm the judgment of the habeas court on a legal ground that was not raised or decided in the habeas court and never raised or briefed by the parties in the Appellate Court?"

Diaz v. Commissioner of Correction , 330 Conn. 954, 198 A.3d 86 (2018). We answer that question in the negative.

"[T]he Appellate Court's decision to raise an unpreserved issue sua sponte in exceptional circumstances is subject to review of abuse of discretion." Blumberg Associates Worldwide, Inc . v. Brown & Brown of Connecticut, Inc. , supra, 311 Conn. at 167–68, 84 A.3d 840. It is well settled that "appellate courts generally do not consider issues that were not raised by the parties ... [because] our system is an adversarial one in which the burden ordinarily is on the parties to frame the issues." (Citation omitted; internal quotation marks omitted.) State v. Connor , 321 Conn. 350, 362, 138 A.3d 265 (2016) ; see also Murphy v. EAPWJP, LLC , 306 Conn. 391, 399, 50 A.3d 316 (2012) (claim must be distinctly raised at trial to be preserved for appeal). "[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. ... 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." (Citations omitted; internal quotations marks omitted.) Blumberg Associates Worldwide, Inc . v. Brown & Brown of Connecticut, Inc. , supra, at 142, 84 A.3d 840.

"[W]ith respect to the propriety of a reviewing court raising and deciding an issue that the parties themselves have not raised ... the reviewing court (1) must do so when that issue implicates the court's subject matter jurisdiction, and (2) has the discretion to do so if (a) exceptional circumstances exist that would justify review of such an issue if raised by a party, (b) the parties are given an opportunity to be heard on the issue, and (c) there is no unfair prejudice to the party against whom the issue is to be decided." Id., at 128, 84 A.3d 840.

Exceptional circumstances exist when "the interests of justice, fairness, integrity of the courts and consistency of the law significantly outweigh the interest in enforcing procedural rules governing the preservation of claims."⁴ Id., at 160, 84 A.3d 840. To satisfy concerns of fundamental fairness, "at a minimum, the parties must be provided sufficient notice that the court intends to consider an issue. It is implicit that an opportunity to be heard must be a meaningful opportunity .... The parties must be allowed time to review the record with that issue in mind, to conduct research, and to prepare a response." (Citation omitted; emphasis in original.) State v. Connor , supra, 321 Conn. at 372, 138 A.3d 265 ; see also CCT Communications, Inc . v. Zone Telecom, Inc ., 327 Conn. 114, 126 n.9, 172 A.3d 1228 (2017) (" Blumberg ... calls for supplemental briefing when a reviewing court raises an unpreserved issue sua sponte " (emphasis in original)). Additionally, "[p]rejudice may be found, for example, when a party demonstrates that it would have presented additional evidence or that it otherwise would have proceeded differently if the claim had been raised at trial." Blumberg Associates Worldwide, Inc . v. Brown & Brown of Connecticut, Inc. , supra, at 156–57, 84 A.3d 840.

In accordance with these principles, a reviewing court has discretion to determine, on a case-by-case basis, whether consideration of an unpreserved issue sua sponte is appropriate. Moreover, "we will not reverse the Appellate Court's decision to raise [an...