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STATE OF CONNECTICUT v. JEFFREY T. CONNOR

(SC 19421)

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

Vertefeuille, Js.

Argued January 26—officially released May 17, 2016

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney and Denise B. Smoker, senior

assistant state’s attorneys, for the appellant (state).

Mary Boehlert, assigned counsel, for the appellee

(defendant).
Opinion

McDONALD, J. In State v. Connor, 292 Conn. 483,

487, 533, 973 A.2d 627 (2009), this court remanded the

criminal case of the defendant, Jeffrey T. Connor, to the

trial court with direction to reconsider the defendant’s

competency to represent himself in light of a new standard that this court adopted in the defendant’s direct

appeal. Following that remand, the trial court concluded that the defendant had been competent to represent himself, and the defendant challenged that decision

before the Appellate Court as an abuse of discretion.

See State v. Connor, 152 Conn. App. 780, 100 A.3d 877

(2014). The dispositive issue in the state’s certified

appeal is whetherthe Appellate Court properly reversed

the trial court’s judgment on the ground that the remand

hearing was procedurally flawed. The state contends

that the Appellate Court raised this issue sua sponte in

derogation of Blumberg Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123,

162–64, 84 A.3d 840 (2014) (Blumberg). We agree and,

accordingly, reverse the judgment of the Appellate

Court and remand the case to that court with direction

to consider the issue raised in the defendant’s appeal.

The record reveals the following undisputed facts and

procedural history. The defendant was charged with a

number of crimes1

in connection with the abduction of

his former wife. State v. Connor, supra, 292 Conn. 486,

488. The extensive pretrial proceedings reflected

repeated attempts by the trial court to ascertain the

defendant’s competency both to stand trial and to discharge his court-appointed counsel and represent himself. Id., 489. The defendant’s competency had been

called into doubt due to the fact that he had suffered

a debilitating stroke and exhibited signs of mental illness. Id., 490–91. The efficacy of these proceedings was

complicated by the defendant’s refusal to cooperate

with the medical professionals tasked with evaluating

him and his intermittent unresponsiveness in court. Id.,

491–92, 497. In reliance on the opinion of several medical professionals, the trial court, McMahon, J., concluded that the defendant’s refusal to cooperate was

‘‘ ‘volitional’ ’’; id., 495; and the trial court, Miano, J.,

thereafter concluded that the defendant was ‘‘malingering,’’ and found him competent to stand trial. Id., 499.

The defendant’s case proceeded to trial before Judge

Espinosa,2 who similarly concluded that the defendant’s

unresponsiveness during jury selection reflected his

continued ‘‘ ‘malingering.’ ’’ Id., 500–501. The defendant

explained that he had previously refused to cooperate

because he did not want his appointed counsel to represent him, and requested that he be permitted to represent himself. Id., 501. After defense counsel summarized

the history of the case with respect to the defendant’s

competency and desire to represent himself, Judge

Espinosa canvassed the defendant, asking him ques-
tions about, inter alia, his educational background and

his ability to recall information pertinent to his case.

Id., 501–502. Judge Espinosa ultimately concluded that

the defendant was ‘‘competent to represent himself. He

is articulate, he’s lucid, he knows what he’s doing. He

. . . devised a calculated plan to disrupt the trial in

front of Judge Miano because he wasn’t getting his

way with his lawyer . . . .’’ (Internal quotation marks

omitted.) Id., 503. Judge Espinosa therefore permitted

the defendant to represent himself, but appointed his

defense counsel as standby counsel. Id. A jury convicted

the defendant on all but one of the charges against him.

Id., 504.

The defendant directly appealed the judgment of conviction to this court claiming, inter alia, that Judge

Espinosa had improperly found that he was competent

to represent himself. Id., 505. At the time of the defendant’s trial, our courts were bound by federal case law

that had indicated that ‘‘a [criminal] defendant who has

been found competent to stand trial as a matter of state

law . . . also is competent to waive the right to counsel. Application of a stricter competency test in the

latter analysis than was used in the former would place

an unconstitutional burden in the exercise of the defendant’s federal constitutional right of self-representation.’’ State v. Day, 233 Conn. 813, 825, 661 A.2d 539

(1995), overruled in part by State v. Connor, 292 Conn.

483, 528 n.29, 973 A.2d 627 (2009). While the defendant’s

appeal was pending, however, the United States

Supreme Court clarified that individual states may

adopt standards for determining whether a defendant

is competent to represent himself that are more

demanding than the standard used for determining

whether a defendant is competent to stand trial. See

Indiana v. Edwards, 554 U.S. 164, 177–78, 128 S. Ct.

2379, 171 L. Ed. 2d 345 (2008). Accordingly, although

a more stringent standard was not constitutionally mandated, this court elected to adopt such a standard in

the defendant’s appeal pursuant to the exercise of our

supervisory authority. State v. Connor, supra, 292 Conn.

528 n.28. Under this standard, when a trial court is

presented with a mentally ill or mentally incapacitated

defendant who has been found competent to stand trial;

id., 527; a defendant’s competency to represent himself

would depend ‘‘on his ability to carry out the basic

tasks needed to present his own defense without the

help of counsel . . . notwithstanding any mental incapacity or impairment serious enough to call that ability

into question.’’ (Citation omitted; internal quotation

marks omitted.) Id., 530.

The court noted, however, that ‘‘[b]ecause Edwards

had not been decided prior to the conclusion of the

trial in the present case, Judge Espinosa had no alternative, in light of our holding in State v. Day, supra, 233

Conn. 825, but to permit the defendant to represent

himself once it was determined that he was competent
to stand trial. We therefore do not know whether Judge

Espinosa would have granted the defendant’s request

to represent himself if she had had the authority to

deny the request in accordance with Edwards and our

holding in the present case. Consequently, the case

must be remanded for a determination by the court,

Espinosa, J., as to whether the defendant then was

competent, notwithstanding any mental disability, to

conduct the trial proceedings by himself. In making this

determination, the trial court, which . . . is ‘best able

to make [such a] fine-tuned mental capacity [decision],

tailored to the individualized circumstances of a particular defendant’; Indiana v. Edwards, supra, 554 U.S.

177; should consider any and all relevant information,

including, but not limited to, the extent to which the

defendant’s competence to represent himself may have

been affected by mental illness, by the stroke that he

had suffered, and by any memory problems that he may

have experienced as a result of that stroke. The court

also should evaluate the extent to which the defendant

may have been feigning mental problems. Because of

the defendant’s refusal to cooperate with the various

evaluation teams that had been assembled to assess

his competency, it is difficult to discern whether the

defendant suffered from a mental illness that, alone or

in combination with his stroke, may have rendered him

incompetent to represent himself. Accordingly, the trial

court may seek to have the defendant examined again

if it appears that such an examination would be helpful

in resolving the issue presented on remand.’’(Footnotes

omitted.) State v. Connor, supra, 292 Conn. 528–29. The

court noted that, if the trial court elected to do an

evaluation and the defendant persisted in refusing to

cooperate, ‘‘the trial court would have no choice but

to make a determination concerning the defendant’s

competency to represent himself at the trial that is

limited generally to its recollection of the proceedings

and its review of the trial transcript and arguments of

counsel.’’ Id., 529 n.31.

In early 2011, Judge Espinosa began the remand proceedings, but was elevated to the Appellate Court

before they could be completed. See footnote 2 of this

opinion. In September, 2011, Judge Schuman assumed

responsibility for the remand proceedings. In January,

2012, Judge Espinosa executed an affidavit based on her

recollections of the defendant’s trial. Judge Espinosa’s

affidavit stated, inter alia, that the defendant had

‘‘appeared to be engaged in every aspect’’ of his trial,

had ‘‘demonstrated an understanding of the evidence

presented,’’ and had ‘‘carried out the basic tasks needed

to present his own defense in a manner similar to other

self-represented’’ parties that had appeared before her.

She acknowledged that the defendant had made certain

‘‘irrelevant’’ statements, but opined that they appeared

to be calculated attempts to elicit sympathy from the

jury. Judge Espinosa further attested that the defendant
had ‘‘demonstrated that he was sufficiently capable of

carrying out the basic tasks needed to present his own

defense without the assistance of counsel.’’

Judge Schuman subsequently held two hearings. At

the first hearing, Judge Schuman outlined his plan to

make a determination regarding the defendant’s competency to represent himself on the basis of the trial transcripts, Judge Espinosa’s affidavit,3 and oral argument

from the parties. At the end of the hearing, Judge Schuman appointed counsel for the defendant because he

was unresponsive. At the second hearing, the court

granted defense counsel’s request to admit the defendant’s medical records from the Department of Correction. At no point did anyone object to Judge Schuman

conducting the proceedings or to the procedure proposed by Judge Schuman to make the competency

determination.4

Judge Schuman thereafter issued a memorandum of

decision in which he determined that the defendant had

been competent to represent himself at the time of his

trial. Judge Schuman first set forth a summary of the

defendant’s conduct during trial, gleaned from the trial

transcripts. He then turned to the defendant’s medical

records and explained why he had declined to give them

any weight. He noted that the medical professionals

who had formed opinions about the defendant’s competency to stand trial had not observed the defendant at

trial and would not be helpful in assessing the legal

question of whether the defendant could adequately

represent himself despite any mental impairment.

Finally, he set forth Judge Espinosa’s observations, as

reflected in her affidavit. In his analysis, Judge Schuman

acknowledged that the transcripts had revealed some

troubling issues regarding the defendant’s ability to represent himself. Nonetheless, he concluded that the most

serious charges against the defendant were not readily

defensible and noted Judge Espinosa’s opinion that

some ofthe defendant’s actions may have been attempts

to gain sympathy from the jury. In conclusion, Judge

Schuman noted: ‘‘Judge Espinosa has made the critical

finding that the defendant, while lacking technical proficiency, could perform the basic tasks needed to defend

himself without the assistance of counsel. That finding

establishes that the defendant’s performance has met

the ultimate standard that applies in this context. . . .

The court must give considerable deference to this finding because Judge Espinosa heard the trial. Reading

the transcript is no substitute forthe opportunity, which

only Judge Espinosa had, to observe whether the defendant had a reasonable understanding of how the trial

process worked, to assess whether his occasional unorthodoxy represented fumbling ineptitude or wilful strategy, and to measure just how well the defendant

interacted with the jury. Based largely on Judge Espinosa’s first hand assessment of the defendant’s performance, the court concludes that the defendant was
competent to represent himself at trial.’’ (Citation

omitted.)

The defendant appealed to the Appellate Court from

the judgment, claiming in his brief to that court that ‘‘the

trial court abused its discretion when it erroneously

concluded that the [defendant] was competent to represent himself at trial despite his mental illness or mental

incapacity.’’ Specifically, the defendant argued ‘‘that the

evidence in this case . . . presents a substantial basis

for the [trial court] to have found that [the defendant]

was incompetent to represent himself at trial.’’ In support of that claim, the defendant cited the behavior and

diagnoses documented in his medical records, the fact

that his competency had been questioned on numerous

occasions prior to trial, and his behavior at trial evidenced in the trial transcripts. In its brief, the state

responded by contending that the evidence, particularly

Judge Espinosa’s affidavit, established that the trial

court properly concluded that the defendant was competent to represent himself.

The Appellate Court reversed the trial court’s judgment, concluding that the trial court ‘‘did not conduct

a meaningful hearing to evaluate retrospectively the

competency ofthe defendant.Indeed,the indeterminate

state of the record precluded the court from retrospectively determining the defendant’s competency with the

degree of reliability that would have accompanied a

competency determination contemporaneous with the

defendant’s trial.’’ State v. Connor, supra, 152 Conn.

App. 795–96. The court further determined that,

because ‘‘of the unorthodox sequence of events on

remand’’ and the fact that eight years had passed since

the defendant’s trial, a ‘‘procedurally adequate competency determination’’ was ‘‘no longer possible’’ because

it ‘‘would be unduly and impermissibly speculative’’;

id., 810–11; and the defendant was entitled to a new

trial.5

Id., 817.

The state thereafterfiled a motion forreconsideration

or reargument en banc, claiming that the Appellate

Court had violated Blumberg by raising sua sponte the

issue of whether the defendant had received a meaningful hearing. The Appellate Court denied the state’s

motion.

We then granted the state’s petition for certification

to appeal to this court, limited to the following issues:

(1) ‘‘Did the Appellate Court properly consider whether

the trial court’s remand hearing was procedurally

flawed?’’; and (2) ‘‘If the answer to the first question

is in the affirmative, did the Appellate Court properly

conclude that the defendant’s convictions must be

vacated?’’ State v. Connor, 315 Conn. 903, 903–904, 104

A.3d 757 (2014). With respect to the first question, the

state claims that the defendant never raised, and therefore waived, any claim that the remand proceedings

were procedurally flawed, and, accordingly, the Appel-
late Court’s decision to resolve the appeal sua sponte

on this basis violated Blumberg. The defendant contends that the Appellate Court properly decided the

appeal on the basis of issues raised by the parties,

but argues that, even if the Appellate Court raised the

procedural issue sua sponte, doing so was proper under

Blumberg. We agree with the state’s argument on the

first certified question, and therefore need not reach

the second certified question.

Our appellate courts generally do not consider issues

that were not raised by the parties. Blumberg, supra,

311 Conn. 164. This is because ‘‘our system is an adversarial one in which the burden ordinarily is on the parties

to frame the issues . . . .’’ Id. There are, however, well

established exceptions to this rule. In Blumberg, we

surveyed our case law in which we have made such

exceptions and categorized the circumstances under

which reviewing courts properly may raise and decide

unpreserved issues. Id., 161–64. We noted that an appellate court has discretion to raise an unpreserved issue if

three conditions are met:(1) exceptional circumstances

exist; (2) the parties have been afforded an opportunity

to be heard on the issue; and (3) there is no unfair

prejudice to the party against whom the issue is to be

decided. Id., 128.

Before turning to the question of whether those conditions were satisfied in the present case, we must

determine whether the defendant asserted a claim that

the remand proceedings were procedurally flawed or

whether the Appellate Court raised this issue sua

sponte. Although we apply the abuse of discretion standard to the question of whether the Appellate Court

properly determined that the Blumberg conditions were

satisfied; id., 167–68; this threshold waiver question is

subject to plenary review. See State v. Davis, 311 Conn.

468, 477, 88 A.3d 445 (2014); State v. Commins, 276

Conn. 503, 510, 886 A.2d 824 (2005), overruled on other

grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d

862 (2014); cf. Flannery v. Singer Asset Finance Co.,

LLC, 312 Conn. 286, 299, 94 A.3d 553 (2014) (interpretation of pleadings subject to plenary review). We conclude that the defendant did notraise the issue on which

the appeal was decided, and, therefore, the Appellate

Court raised it sua sponte.

The record reveals the following additional facts and

procedural history relevant to our resolution of this

issue. The remand hearing proceeded before Judge

Schuman without the defendant or his counsel interposing any objections. Other than his medical records,

admitted over the state’s objection, the defendant did

not attempt to introduce any new documentary evidence or witness testimony. Defense counsel acknowledged that they had sought out mental health

professionals to evaluate the trial transcripts, but those

professionals had indicated that they would be unable
to render any kind of a significant opinion on that basis.

The defendant never sought to have Judge Espinosa

testify, nor did he argue that her affidavit was lacking in

any way. Indeed, defense counsel argued before Judge

Schuman ‘‘that we have before us the affidavit of Judge

Espinosa, on one hand, and the transcripts on the other,

and in between are medical records from the Department of Correction, which I would suggest to the court

. . . would put to rest the idea . . . whether or not

[the defendant] was, at the time, suffering from any

mental illness.’’ At the close of the hearings, in response

to the state’s reliance on Judge Espinosa’s affidavit,

defense counsel stated: ‘‘I suppose the simplestthing for

the court to do here, because [the case] was remanded

specifically to Judge Espinosa for a finding, is to just

. . . accept her affidavit at face value and move on.’’

Nonetheless, defense counsel noted that he disagreed

with the conclusions that Judge Espinosa had drawn

from the conduct displayed by the defendant. When

Judge Schuman later asked how much deference he

should give to the affidavit, defense counsel stated: ‘‘I

am under no illusion that you won’t give deference at

all; as I said, I disagree with it. I disagree with it heartily,

but she was the judge and it was returned to her for

her opinion.’’

Following Judge Schuman’s decision, the defendant

claimed in his brief to the Appellate Court that ‘‘the

trial court abused its discretion when it erroneously

concluded that the [defendant] was competent to represent himself at trial despite his mental illness or mental

incapacity.’’ In support of that claim, the defendant

argued ‘‘that the evidence in this case . . . presents a

substantial basis for the [trial court] to have found that

[the defendant] was incompetent to represent himself

at trial.’’ The defendant cited the information documented in his medical records, the fact that his competency had been questioned on numerous occasions

prior to trial, and his behavior at trial as evidenced

by the trial transcripts. The defendant argued that the

evidence in his case was comparable to that in Indiana

v. Edwards, supra, 554 U.S. 177–78, wherein the trial

court had concluded that the defendant was not competent to represent himself despite his competency to

stand trial. In the present case, the defendant’s analysis

of his claim made no reference to Judge Espinosa’s

affidavit; he simply acknowledged its filing and conclusion in his preliminary statement of the facts and procedural history of the case. The state’s responsive brief

contended that the evidence, particularly Judge Espinosa’s affidavit, established that the trial court properly

concluded that the defendant was competent to represent himself.

In its opinion, the Appellate Court initially broadly

framed the issue before it as whether the trial court

‘‘improperly determined that [the defendant] was competent to represent himself . . . .’’ State v. Connor,
supra, 152 Conn. App. 795. The Appellate Court then

noted that, although such determinations ordinarily

would be made at a time substantially contemporaneous with a mentally ill or incapacitated defendant’s

request for self-representation, that did not happen in

the present case. The Appellate Court noted that retrospective (or nunc pro tunc)6 competency determinations are generally disfavored and only permissible

when they are the product of a meaningful hearing.

Id., 801. The Appellate Court further explained: ‘‘In the

present case, by way of remanding the matter to the

trial court with direction to render a nunc pro tunc

competency determination, our Supreme Court implicitly determined that it was permissible forthe trial court

to render such a determination at that time. The implied

permissibility ofthe nunc pro tunc competency determination, however, was predicated on the assumption that

Judge Espinosa would conduct the remand proceedings, as was plainly set forth in our Supreme Court’s

mandate to the trial court. . . . Judge Espinosa, however, did not conduct the remand proceedings. . . .

Our Supreme Court’s mandate to the trial court did not

account for such a contingency and, consequently, in

order to resolve the defendant’s claim on appeal that

the competency determination was improper, we must

examine the basis of and grounds of Judge Schuman’s

determination that the defendant was competent to represent himself . . . .’’ (Citations omitted; footnotes

omitted.) Id., 802–804.

The court noted that, although this court had

assumed that Judge Espinosa’s determination would

require the exercise of discretion, Judge Schuman did

not, under the circumstances, make the discretionary

determination that this court had sought from Judge

Espinosa. Id., 803 n.21. The court reasoned that

‘‘[b]ecause the judges of our Superior Court do not have

a collective consciousness, Judge Schuman’s conclusion as to what Judge Espinosa would have done in a

circumstance that she never contemplated would not

have been an exercise of discretion, but a legal fiction.’’7

Id.

In considering whether Judge Schuman had conducted a ‘‘meaningful,’’ and therefore permissible,retrospective competency hearing, the Appellate Court

defined a meaningful hearing as one in which ‘‘the state

of the record, together with such additional evidence

as may be relevant and available, permits an accurate

assessment of the defendant’s condition at the time of

the original . . . proceedings.’’ (Internal quotation

marks omitted.) Id., 804. The Appellate Court explained

that the ‘‘primary object’’ of its inquiry into whether the

defendant had received a meaningful hearing was ‘‘to

determine whether the quantity and quality of the evidence would have permitted the court on remand to

reliably reconstruct the defendant’s competency at the

time of trial.’’ Id., 805.
The Appellate Court then proceeded to analyze

whether the remand hearing had been meaningful by

applying a four factor test often used by federal courts

to determine whether a nunc pro tunc hearing to determine a defendant’s competency to stand trial is meaningful. Id., 804–805. Specifically, the Appellate Court

considered: (1) the amount of time that had elapsed

between the defendant’s trial and the competency determination; (2) the availability of medical evidence that

was contemporaneous with the trial; (3) statements by

the defendant in the trial record; and (4) the availability

of individuals who were in a position to interact with

the defendant before and during trial. Id. Applying this

test, the court first noted that the competency determination occurred approximately six years after trial. Id.,

805. The court then effectively determined that the

defendant’s medical records were not reliable evidence

as to his competency to represent himself because they

were from a time period preceding his trial, they

included many illegible entries, and they contained

other entries using medical terminology that could not

be understood without the aid of expert testimony.8

Id.,

805–806. The court next determined that the defendant’s statements at trial were ‘‘of minimal utility without a proper understanding of [the defendant’s] mental

state at that time,’’ which it concluded could not have

been accurately assessed given the state of the contemporaneous medical evidence that was available to the

court. Id., 806–807. Insofar as some of the defendant’s

statements seemed to indicate that he may have been

competent to represent himself, the Appellate Court

reasoned that those statements could have been the

product of mental illness. Id., 807. Finally, the Appellate

Court determined that, although Judge Espinosa had

observed the defendant during the relevant time, her

‘‘live testimony would have been necessary insofar as

her affidavit set forth what we can characterize only

as conclusory statements regarding the defendant’s

ability to represent himself during trial . . . .’’ Id. The

court noted that Judge Espinosa’s affidavit had been

made without knowledge of the defendant’s subsequently admitted medical records and that her ultimate

opinion conflicted with her statements at trialregarding

the defendant’s competency.9

Id., 808–809. In balancing

these factors, the Appellate Court ultimately concluded

that the trial court had not conducted a meaningful

hearing. Id., 809–10.

From our review of this record, it is apparent that,

although the Appellate Court’s initial framing of the

issue—whether the trial court ‘‘improperly determined

that [the defendant] was competent to represent himself’’—was consistent with the parties’ dispute at its

broadest level; id., 795; its decision was based on an

issue that was not raised by the parties. The defendant

challenged the substantive basis of Judge Schuman’s

decision, claiming that certain evidence proved that he
was not competent to represent himself. By contrast,

the Appellate Court decided whether, in light of the

fact that Judge Espinosa had not presided over the

remand proceedings, any other trier of fact could have

made a determination regarding the defendant’s competency given the substantial amount of time that had

passed and the state of the record. The Appellate Court

effectively concluded that, although this court had

approved the making of a competency determination

on the basis of a review of the trial transcripts, oral

argument of the parties, and Judge Espinosa’s personal

observations, those same considerations constituted an

inadequate basis to afford the defendant a meaningful

competency hearing.

The defendant never questioned Judge Schuman’s

ability to make a competency determination, whether

because a significant amount of time had elapsed since

the defendant’s trial or because Judge Schuman had not

presided over that trial. The defendant never claimed,

either before the Appellate Court or the trial court, that

the evidence was insufficient or unreliable such that

Judge Schuman could not make a determination regarding his competency. Indeed, the defendant conceded

that Judge Schuman properly could afford substantial

deference to Judge Espinosa’s conclusions in her affidavit, arguing only that the court should find the evidence

contained in the defendant’s medical records a more

compelling basis to reach a contrary conclusion. The

defendant did not, nor could he claim, that Judge Schuman improperly precluded him from introducing evidence relevant to his competency. Therefore, any such

claims would have been waived by the defendant.

In other words, the parties focused exclusively on

whether the trial court properly determined that the

defendant was competent to represent himself on the

basis of the evidence properly before it, whereas the

Appellate Court analyzed as a threshold matter whether

the circumstances and evidence allowed the trial court

to make any competency determination at all.10

Although the Appellate Court considered the evidence

that the parties cited, it did so through the lens of

whether the evidence provided the defendant with a

meaningful hearing, not whether the trial court made

a proper determination on the basis of that evidence.

Indeed, the Appellate Court weighed this evidence

against the passage of time, a consideration that neither

party raised at any stage of the proceedings. We therefore are compelled to conclude that the Appellate Court

decided the appeal on the basis of an issue that it raised

sua sponte.

In light of this conclusion, we turn to the question

of whether the requirements for raising an unpreserved

issue sua sponte were satisfied. As previously noted,

we review the Appellate Court’s decision as to this

matter for an abuse of discretion. Blumberg, supra, 311
Conn. 167–68. Although the state contends that none

of the Blumberg requirements was satisfied, we focus

on two of them: (1) whether the parties were given an

opportunity to be heard on the issue; and (2) whether

there was unfair prejudice to the state, the party against

whom the issue was decided. Id., 128.

With respect to the opportunity to be heard, the

record reveals the following relevant facts. Prior to oral

argument, the Appellate Court did not order the parties

to file supplemental briefs on the question of whether

the defendant had been given a meaningful hearing.

The Appellate Court did not issue an order directing

the parties to be prepared to discuss that issue at oral

argument. The issue arose for the first time during the

state’s rebuttal argument through questions by the

Appellate Court panel. The panel questioned the state,

for example, on whether there had been any discussion

of making Judge Espinosa available for cross-examination and whether there had been any objection to the

manner in which her affidavit was received. The Appellate Court thereafter did not instruct the parties to file

supplemental briefs concerning these issues.

The court in Blumberg specifically phrased the

requirement that a party be heard on an issue as ‘‘an

opportunity . . . to be heard by way of supplemental

briefing . . . .’’ (Emphasis added.) Id., 161–62; see also

id., 157 n.26 (citing ‘‘the requirement that parties must

be given an opportunity to brief an issue that the

reviewing court has raised sua sponte’’). Our case law

also has established that if ‘‘the Appellate Court decides

to address an issue not previously raised or briefed, it

may do so only after requesting supplemental briefs

from the parties or allowing argument regarding that

issue.’’ State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809

(2007), overruled in part on other grounds by Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162 n.34, 84 A.3d 840

(2014).

Consistent with this jurisprudence, this court, on

occasion, has issued orders instructing parties to be

prepared to discuss certain issues at oral argument

without ordering supplemental briefing on those issues.

See, e.g., Gould v. Freedom of Information Commission, 314 Conn. 802, 808 n.9, 104 A.3d 727 (2014)

(whether plaintiff was aggrieved); Lexington Ins. Co.

v. Lexington Healthcare Group, Inc., 311 Conn. 29, 35

n.6, 84 A.3d 1167 (2014) (whether jurisdiction existed

for cross appeal); Broadnax v. New Haven, 284 Conn.

237, 240 n.4, 932 A.2d 1063 (2007) (whether final judgment existed); Board of Education v. Nonnewaug

Teachers’ Assn., 273 Conn. 28, 31, 866 A.2d 1252 (2005)

(impact of recently issued decision). Principally, this

court has used this procedure when a jurisdictional

concern comes to this court’s attention after the parties

have filed their briefs, which is a matter that the court
is required to address even if not raised by the parties.

Blumberg, supra, 311 Conn. 128.

Thus, it is clear that, 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, in order

to satisfy concerns of fundamental fairness. See id., 156

n.24 (‘‘[f]undamental fairness dictates that a party must

be afforded the opportunity to address an unpreserved

claim on appeal’’). The parties must be allowed time

to review the record with that issue in mind, to conduct

research, and to prepare a response. A meaningful

opportunity is not provided when a party is asked a

question about a different claim, not previously raised,

for the first time at oral argument. Moreover, the Appellate Court’s questions in the present case did not make

clear that it intended to decide whether a retrospective

competency proceeding was permissible and that it

would make such a determination under a test that had

not been raised in the briefs of either party. Accordingly,

the Appellate Court failed to provide the state with an

opportunity to be heard on the dispositive issue.

If the absence of such an opportunity was the only

concern in the present case, we could remand the case

to the Appellate Court to afford the parties that opportunity. See, e.g., Haynes v. Middletown, 306 Conn. 471,

475, 50 A.3d 880 (2012). The state also contends, however, that it was unfairly prejudiced by the fact that

this issue was never raised before the trial court. The

state argues that it would have proceeded differently

had the defendant objected to the procedure used by

Judge Schuman. Specifically, the state contends, if the

defendant had objected to having any judge other than

Judge Espinosa conduct the remand proceedings, it

would not have objected to Judge Espinosa11 conducting the proceedings or would have actively sought to

have her do so.12

Unfair prejudice may be found ‘‘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. . . . Moreover,

because it may be difficult for a party to prove definitively that it would have proceeded in a different manner and, as a result, would suffer unfair prejudice if the

reviewing court were to considerthe unpreserved issue,

once that party makes a colorable claim of such prejudice, the burden shifts to the other party to establish

that the first party will not be prejudiced by the

reviewing court’s consideration of the issue.’’ (Citations

omitted.) Blumberg, supra, 311 Conn. 156–57.

In the present case, the state has made a colorable

claim that it was unfairly prejudiced. Had the state

known that it should have sought to have Judge

Espinosa preside over the remand proceedings, it

thereby could have alleviated the Appellate Court’s con-
cerns regarding the substance of her affidavit. General

Statutes § 51-197c (f) provides a mechanism that would

have allowed Judge Espinosa to preside over the

remand proceedings notwithstanding her elevation to

the Appellate Court. Section 51-197c (f) allows Appellate Court judges to preside over trial court matters

with the permission of the Chief Justice of the Supreme

Court when ‘‘the public business may require it.’’13

The defendant has failed to advance any argument

as to why the state could not have sought to have Judge

Espinosa preside over the proceedings or why such

an attempt would have been futile. The defendant has

accordingly failed to meet his burden to overcome the

presumption that the state was unfairly prejudiced. We

conclude, therefore, that the Appellate Court abused

its discretion by deciding the appeal on the basis of an

unpreserved issue because the requirements articulated

in Blumberg were not met.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

consider the claim raised by the defendant in his appeal

to that court.

In this opinion the other justices concurred.

1 The charges included kidnapping in the first degree, robbery in the third

degree, robbery involving an occupied motor vehicle, larceny in the third

degree, and stalking in the first degree. See State v. Connor, supra, 292

Conn. 486, 503.

2 On March 16, 2011, Judge Espinosa was sworn in as a judge of the

Appellate Court. On March 6, 2013, she was sworn in as an Associate Justice

of the Supreme Court. Because this appeal involves matters that occurred

before Justice Espinosa’s appointment to the Supreme Court, and for clarity,

we refer to Justice Espinosa as Judge Espinosa in this opinion.

3 The timing and process whereby Judge Espinosa’s affidavit was actually

entered as a court exhibit is not clear from the record.

4 Although the defendant’s brief to this court argues to the contrary, at

oral argument he conceded that no objection had been made to Judge

Schuman presiding over the proceedings.

5

Judge Bear issued a separate opinion concurring in part and dissenting

in part, in which he primarily took issue with the majority’s conclusion that

Judge Espinosa could not conduct another remand proceeding because she

had made herself a material witness and, therefore, the proper remedy was

a new trial. State v. Connor, supra, 152 Conn. App. 817, 827–29.

6 Nunc pro tunc means ‘‘now for then’’ and is used, inter alia, to refer to

competency determinations made after the time at which the underlying

proceeding took place, in the present case, the defendant’s criminal trial.

State v. Connor, supra, 152 Conn. App. 799–800; see also Black’s Law Dictionary (10th Ed. 2014).

7 This factrebukes the defendant’s claim that the Appellate Courtreviewed

Judge Schuman’s decision under the abuse of discretion standard.

8 The Appellate Court nevertheless faulted the trial court for refusing to

give weight to the defendant’s medical records. State v. Connor, supra, 152

Conn. App. 793 n.11.

9 The Appellate Court noted: ‘‘[I]nsofar as [Judge Espinosa’s] affidavit

indicated that she believed the defendant was capable of carrying out the

basic tasks needed to present his own defense without counsel, the trial

transcript offers a conflicting statement: ‘[If] you represent yourself, you’re

not going to walk out of here free, I can tell you that. Because you are not

capable, you think you are, you think you know what you’re doing, but

you’re not.’ ’’ (Emphasis in original.) State v. Connor, supra, 152 Conn.

App. 808–809. Contrary to the Appellate Court, we believe that the latter

statement, read in proper context, indicates that Judge Espinosa was warning the defendant that he lacked the skills to successfully represent himself.

See State v. Connor, supra, 292 Conn. 529–30 (‘‘We emphasize that the issue
to be decided on remand is not whether the defendant lacked the technical

legal skill or knowledge to conduct the trial proceedings effectively without

counsel. Indeed, it appears quite clear that he did lack such skill or knowledge. That fact, however, has no bearing on whether he was competent to

represent himself for purposes of Edwards. Rather, the determination of

his competence or lack thereof must be predicated solely on his ability to

‘carry out the basic tasks needed to present his own defense without the

help of counsel’ . . . notwithstanding any mental incapacity or impairment

serious enough to call that ability into question.’’ [Citation omitted.]).

10 We acknowledge that the Appellate Court varyingly framed the issue

before it, making it difficult to characterize with precision the ultimate issue

on which it based its decision. For example, it initially framed the issue as

whether the hearing was meaningful, but later characterized the trial court’s

error as having ‘‘fail[ed] to resolve the doubt as to the defendant’s competency.’’ (Emphasis in original.) State v. Connor, supra, 152 Conn. App. 814.

The parties agreed, however, that the trial court had resolved that doubt,

but took different positions as to whether the court’s resolution was the

correct one. Thus, irrespective of how it framed the issue, the Appellate

Court decided that some procedural flaw rendered the judgment improper.

The Appellate Court did not simply decide the substantive issue raised by

the parties under plenary review,ratherthan the abuse of discretion standard

sought by the parties.

11 The justices of the Supreme Court and the judges of the Appellate Court

are also judges of the Superior Court. General Statutes §§ 51-198 (a), 51-

197c (a), and 51-165 (6).

12 The state also claims in its reply brief that, had it known that there was

a concern about the availability of individuals ‘‘who were in a position to

interact with the defendant before and during trial’’; State v. Connor, supra,

152 Conn. App. 805; it would have presented testimony from other persons

who had had such interactions, and it also would have joined in a request

of the defendant to have the remand hearing litigated before Judge Espinosa.

Although it is debatable whether this argument is sufficiently distinct from

the prejudice argument in the state’s main brief and thus should not be

considered; see State v. Jose G., 290 Conn. 331, 341 n.8, 963 A.2d 42 (2009)

(‘‘[i]t is a well established principle that arguments cannot be raised for the

first time in a reply brief’’ [internal quotation marks omitted]); we need

not resolve this question because the state’s principal prejudice argument

is sufficient.

13 The Appellate Court panel disagreed whether Judge Espinosa could

preside over the proceedings if it reversed the judgment rendered by Judge

Schuman because Judge Espinosa had filed an affidavit, thereby potentially

making herself a material witness. Compare State v. Connor, supra, 152

Conn. App. 812 n.26, with id., 828–29 (Bear, J., concurring and dissenting);

see also Code of Judicial Conduct, Rule 2.11 (a)(5)(C)(judge shall disqualify

himself or herself in any proceeding in which judge’s impartiality might

reasonably be questioned, including where judge ‘‘was a material witness

concerning the matter’’). The defendant does not argue that Judge Espinosa

could not have presided over the proceedings for this reason. Indeed, had

the defendant timely raised any of the concerns expressed by the Appellate

Court before Judge Schuman, these concerns arguably could have been

resolved before Judge Espinosa’s affidavit was admitted as a court exhibit.

See footnote 3 of this opinion.