State v. Elson

• Decision Date: 03 June 2014
• Docket Number: SC 18737
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ZACHARY JAY ELSON

STATE OF CONNECTICUT v. ZACHARY JAY ELSON

SC 18737

Supreme Court of Connecticut

Argued September 24, 2012

Officially released June 3, 2014

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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.Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and

Espinosa, Js.^*

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 significant 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 authority over the administration of justice, in connection with the well established constitutional principle that "the [a]ugmentation 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." (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 Statutes § 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 supervisory authority to vacate his sentence and remand the case for resentencing. Because we overrule the requirement, articulated in, inter alia, State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002), that a party must "affirmatively request" Golding review in its main brief in order to receive appellate review of unpreserved constitutional claims, we conclude that the Appellate Court improperly declined to review the defendant's constitutional 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 supervisory 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 defendant 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, ultimately recommending a total effective sentence of thirty-five years incarceration, suspended after twentyfive years, followed by five years probation with special conditions. Thereafter, the victim read an impact statement 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 defendant exercised his right of allocution, expressing remorse for the criminal conduct underlying his convictions. 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 apologize 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 formal 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 testimony, 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 completely ruining her life; for that, I suppose, the victim and the defendant should both consider themselves fortunate.

" '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 victim] 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, undoubtedly 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...