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******************************************************
STATE OF CONNECTICUT v. ZACHARY JAY ELSON

(SC 18737)

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

Espinosa, Js.*

Argued September 24, 2012—officially released June 3, 2014

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, 567A.2d 823 (1989), and our supervisory authority overthe 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,1from 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, 261Conn.

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 herfingers,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 herthroat.’ 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 anger within the defendant

that explains this act of rage and violence, which the

state aptly points out appears to be part of a pattern.

This, in my view, makes the defendant a dangerous

person, one from whom the victim, [Western Connecticut State University], and society should be protected.

‘‘ ‘It also points out, incidentally, the dangers of substance abuse. There’s no evidence, I don’t think, that

the defendant was using drugs on the day in question,

but he does have a history of drug and alcohol abuse

and . . . it has long been clear to me that drug and

alcohol abuse is not a victimless crime. And today’s
sentencing provides graphic evidence of that.

‘‘ ‘Furthermore, intoxication simply does not explain

his statement to the police and his testimony in court

that this was an accident. Did the accident supposedly

occur because of intoxication? I never understood that.

But I do know that this was no accident. I do not believe

the defendant’s testimony that he just happened to get

poked in the leg with his knife, that he just happened

to pull the knife out at that time and that [the victim]

just happened to turn around at that time. I believe the

defendant gave a false explanation to the police, that

he testified falsely in court and that he essentially

obstructed justice in doing so. And this is an aggravating factor.’

‘‘The court observed that the defendant had committed the crimes at issue while he was released on bail

after having been charged with other felony crimes.

The court stated: ‘A judge in Norwalk trusted the defendant and released him. The defendant abused that trust

in the worst way. No judge has a crystal ball. We cannot

tell for certain when we make bail decisions who will

commit crimes while on bail and who will not. We make

mistakes. But if we do not punish those who do commit

crimes while given a privilege of release, we will not

be doing all we can to deter others from abusing that

privilege.

‘‘ ‘By committing these crimes while out on bail, the

defendant not only committed a crime against the victim

but also committed a crime against the court. The defendant broke his word to the court and showed disrespect

for the law. The only mitigating factor I can find in

this situation is that the defendant at least admitted

the bail status violations.

6

. . . [I]n due course, it will

be entirely up to the judge in Norwalk to decide how

to sentence in those cases. . . . [T]he current convictions are separate offenses from the ones in the Norwalk

[court] . . . .’ Thereafter, the court sentenced the

defendant on each count, imposing a total effective

sentence of twenty-five years imprisonment, execution

suspended after twenty years, followed by five years

of probation with special conditions. The sentencing

proceeding concluded without any additional comments by defense counsel.’’(Emphasis added; footnotes

added.) Id., 335–38.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia,7

that

the trial court ‘‘deprived him of his right to due process

when it considered improper factors at the time of

sentencing.’’ State v. Elson, 116 Conn. App. 196, 235, 975

A.2d 678 (2009). Specifically, ‘‘[t]he defendant argue[d]

that the court improperly considered (1) the fact that he

proceeded to trial rather than accepting a plea bargain

offered by the state and (2) the knife that was a full

exhibit at the trial.’’8

Id. In affirming the judgment of

the trial court, the three judge panel of the Appellate
Court that initially heard the defendant’s appeal,

Bishop, Harper and Dupont, Js., split three ways in

addressing the sentencing claim. Id., 235–36. Judge

Harper, authoring the lead opinion for the panel,

declined to review the defendant’s sentencing claim,

concluding that it was unpreserved and that he had not

properly made an ‘‘affirmative request’’ for review in

his main brief under State v. Golding, supra, 213 Conn.

239–40. State v. Elson, supra, 116 Conn. App. 239–40.

Judge Dupont concurred in the result, concluding that,

although the defendant’s sentencing claim was reviewable underthe application of Golding in State v. Wright,

114 Conn. App. 448, 463, 969 A.2d 827 (2009), resentencing nevertheless was not required. State v. Elson, supra,

116 Conn. App. 241, 245–46. Judge Bishop dissented in

part, agreeing with Judge Harper’s conclusion as to

reviewability under Golding, but concluding ultimately

that ‘‘the defendant’s sentencing claim raises a troubling

issue warranting resentencing’’ under the Appellate

Court’s supervisory powers over the administration of

justice. Id., 246–47.

Thereafter, the Appellate Court granted the defendant’s motion for reargument and reconsideration en

banc. State v. Elson, supra, 125 Conn. App. 331. The

en banc Appellate Court majority concluded that the

defendant had not properly made an ‘‘[affirmative]

request’’ for Golding review of his unpreserved sentencing claim in his main brief and, therefore, declined to

review that claim. Id., 356. In so concluding, the en

banc Appellate Court interpreted that requirement to

‘‘eschew the notion that it necessarily includes the use

of talismanic words or phrases, such as a citation to the

Golding opinion or a recitation of any specific language

from that opinion in an analysis of the reviewability of

the claim.’’ Id., 353. Rather, relying on our decision in

In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009),

the Appellate Court determined that ‘‘what is required

in making an affirmative request for review, is that a

party present an analysis consistent with the principles

codified in Golding for the review of unpreserved

claims of constitutional magnitude. As a starting point,

a party seeking review of such claim must alert the

reviewing court to the fact that the claim is unpreserved

or that there is a possibility that the reviewing court

may determine that the claim is not properly preserved

for appellate review. Thereafter, the party must, in its

main brief, present an analysis based in law and tailored

to the unique circumstances surrounding the claim that,

if the reviewing court determines that the claim is not

preserved, the claim nevertheless is reviewable on

appeal because (1) the record is adequate to review the

claim and (2) the claim is of constitutional magnitude,

alleging the deprivation of a fundamental constitutional

right.’’ (Footnote omitted.) State v. Elson, supra, 125

Conn. App. 354. Further, the Appellate Court overruled

its decision in State v. Wright, supra, 114 Conn. App.
463, to the extent that it supported the reviewability of

the defendant’s claims. State v. Elson, supra, 125 Conn.

App. 359.

The Appellate Court majority then declined to use

its supervisory authority over the administration of justice to reach the defendant’s claims, noting that the

defendant did not make that request until his reply brief

and, therein, only skeletally. Id., 359–60. In dicta, the

Appellate Court majority relied on State v. Kelly, supra,

256 Conn. 79–84, and concluded that the ‘‘totality of

the circumstances’’ indicated that the trial court had

not violated the defendant’s due process rights by penalizing him at sentencing for having elected to stand trial.9

State v. Elson, supra, 125 Conn. App. 365–66. The Appellate Court’s en banc reconsideration of this case, which

again affirmed the judgment of the trial court, resulted

in numerous separate opinions, including an opinion

concurring in part and dissenting in part issued by Judge

Bishop; id., 388; a concurring opinion issued by Judge

Robinson; id., 369; and an opinion concurring in part

issued by Judge Dupont.10 Id., 378. This certified appeal

followed. See footnote 1 of this opinion.

Originally, we granted certification in this appeal

solely to consider whether the defendant’s briefing of

his unpreserved sentencing claim in the Appellate Court

constituted an adequate request for Golding review.

See id. Following oral argument, however, we ordered

the parties, sua sponte, to submit simultaneous supplemental briefs on the following issues, both of which

had been raised in the defendant’s petition for certification, but were not previously granted certification by

this court: (1) ‘‘Should the doctrine of State v. Golding,

[supra, 213 Conn. 233], apply to an unpreserved claim

that a trial judge commented improperly during sentencing on the defendant’s exercise of his constitutional

right to a jury trial?’’ and (2) ‘‘Should this court exercise

its supervisory powers in the present matter to vacate

the defendant’s sentence and remand the case to the

trial court for resentencing?’’

For reasons explained in greater detail subsequently

in this opinion, we conclude that the defendant’s briefing of his unpreserved sentencing claim in the Appellate

Court constituted an adequate request for Golding

review, because we overrule the ‘‘affirmative request’’

requirement as articulated in, inter alia, State v. Ramos,

supra, 261 Conn. 171.11 We further conclude that the

defendant failed to carry his burden, under State v.

Kelly, supra, 256 Conn. 81–82, of proving that the totality

of the circumstances demonstrates that the trial court’s

comments at sentencing indicated that it had penalized

him for exercising his right to a jury trial by lengthening

his sentence. Finally, we answerthe second supplemental issue in the affirmative and exercise our supervisory

powers to order resentencing in the present case to

prevent the potentially deleterious effect of such
remarks by a trial court on the public’s perception of

the procedural fairness of the criminal justice system.

I

CONSTITUTIONAL CLAIMS

We begin with the defendant’s constitutional claims

that we originally certified, namely, that: (1) the Appellate Court improperly concluded that his claims were

not reviewable under State v. Golding, supra, 213 Conn.

239–40, because he had failed to make the necessary

‘‘affirmative request’’ for such review; and (2) Golding

review and relief was necessary because ‘‘the trial

court’s consideration of ‘put[ting the victim through

the trial’ infringed on the defendant’s state and federal

constitutional rights, and warrants a remand from this

court for resentencing.’’

A

Affirmative Request Requirement

With respect to reviewability, the defendant contends

that the Appellate Court should have reviewed his claim

because his briefing demonstrated that the first two

prongs of State v. Golding, supra, 213 Conn. 239–40,

which pertain to reviewability, had been satisfied. The

defendant further contends that the line of cases establishing the ‘‘affirmative request’’ rule, as interpreted by

the en banc Appellate Court, ‘‘unduly restrict[s] a defendant’s ability to present legitimate but unpreserved

claims of a deprivation of a fundamental constitutional

right.’’ He relies on Judge Dupont’s concurrence in the

present case, and the Appellate Court’s opinion in State

v. Wright, supra, 114 Conn. App. 448, as establishing

that the affirmative request requirement has a ‘‘shaky

foundation’’ in this court’s case law. He further argues

that, consistent with the concurring opinion authored

by Justice Palmer in Johnson v. Commissioner of Correction, 288 Conn. 53, 68, 951 A.2d 520 (2008), we should

interpret the affirmative request requirement consistently with Wright; see State v. Wright, supra, 463–64;

to avoid ‘‘unjust results, and diminish[ing] a defendant’s

right to effective appellate review of otherwise fullyanalyzed claims.’’ Thus, the defendant contends that

we should review unpreserved constitutional claims

pursuant to Golding, regardless of a brief’s failure to

request that level of review by name or by tracking the

party’s entitlement thereto, if the requesting party has

‘‘present[ed] a record that is [adequate] for review and

affirmatively [demonstrates] that his claim is indeed a

violation of a fundamental constitutional right.’’ (Internal quotation marks omitted.) State v. Wright, supra,

463.

In response, the state endorses the en banc Appellate

Court’s interpretation of the ‘‘affirmative request’’

requirement as ‘‘embod[ying] long-standing and wellsettled principles of notice and adequate briefing,’’ and

contends that the approach in Wright, advocated by
the defendant, is deficient because it does not alert the

court of appeal that review of an unpreserved claim is

being requested. The state further contends that Wright:

(1) ‘‘fails to draw any meaningful distinction between

preserved and unpreserved claims of error,’’ thus

‘‘remov[ing] any meaningful consequence of not contemporaneously objecting to a perceived error at trial’’;

and (2) ‘‘effectively transforms the defendant’s burden

of demonstrating his entitlement to extraordinary

review into the state’s burden of disproving such entitlement.’’ Finally, the state contends that the rule adopted

by the en banc Appellate Court in the present case has

the salutary effect of being consistent with this court’s

approach ‘‘in cases in which a party seeks review of a

state constitutional claim’’ under State v. Geisler, 222

Conn. 672, 684–85, 610 A.2d 1225 (1992). We agree,

however, with the defendant, and conclude that the

analysis contained within State v. Wright, supra, 114

Conn. App. 448, embodies the proper approach to

determining the reviewability of claims under Golding.

We further conclude that, because the approach embodied in Wright is inconsistent with the affirmative request

requirement as it has been implemented in this court’s

case law, the decision of this court in State v. Ramos,

supra, 261 Conn. 171, along with its progeny, should be

overruled insofar as those cases require a request for

Golding review to be made in some particular manner

beyond the adequate briefing of a constitutional claim.12

Consideration of the continuing vitality of the affirmative request requirement must begin with a review

of what the Appellate Court aptly described as the ‘‘bedrock principle of appellate jurisprudence’’ that this

court generally will not review unpreserved claims

made for the first time on appeal.’’ State v. Elson, supra,

125 Conn. App. 340–41. Specifically, in State v. Evans,

165 Conn. 61, 69, 327 A.2d 576 (1973), this court stated

that ‘‘[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.’’ One of those ‘‘ ‘exceptional circumstances’ ’’ is ‘‘where the record adequately supports a

claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.’’ Id., 70.

As this court later recognized, however, the Evans

standard lent itself to ‘‘inconsistent application’’ as evidenced by the ‘‘disparate approaches’’ by this court and

the Appellate Court to ‘‘the Evans criteria.’’ State v.

Golding, supra, 213 Conn. 239. Accordingly, in Golding,

this court refined the Evans framework, articulating

‘‘guidelines designed to facilitate a less burdensome,

more uniform application of the . . . Evans standard

. . . .’’ Id. Specifically, Golding held that ‘‘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 magni-
tude alleging the violation of a fundamental right; (3)

the alleged constitutional violation clearly exists and

clearly 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 omitted; footnote omitted.) Id., 239–40. ‘‘[T]he first two

[prongs of Golding] involve a determination of whether

the claim is reviewable’’; (internal quotation marks

omitted) State v. Whitford, 260 Conn. 610, 621, 799

A.2d 1034 (2002); and under those two prongs, ‘‘[t]he

defendant bears the responsibility for providing a

record that is adequate for review of his claim of constitutional error.’’ State v. Golding, supra, 240.

We first alluded to an expansion of the defendant’s

burden to demonstrate entitlement to review under

Golding in State v. Waz, 240 Conn. 365, 692 A.2d 1217

(1997), which involved an unpreserved state constitutional claim. The state argued that this court should

decline to review the claim because the defendant made

‘‘no express reference to the guidelines governing our

review of unpreserved constitutional claims set forth

in State v. Golding [supra, 213 Conn. 239–40].’’ State v.

Waz, supra, 371 n.11. Notwithstanding the defendant’s

‘‘failure to invoke ourreview underthe criteria specified

in Golding,’’ we reached the merits of the claim, but

‘‘admonish[ed] defendants who seek consideration of

unpreserved constitutional claims . . . that they bear

the burden of establishing their entitlement to such

review under the guidelines enumerated in Golding.’’13

Id. Thus, in Waz this court appeared to read the first

two prongs of Golding not merely as setting forth uniform rules governing entitlement to review of unpreserved constitutional claims, but also as requiring a

defendant specifically to invoke that entitlement in his

brief—as opposed to briefing only the merits of the

constitutional claim itself—unless, as in Waz, the record

otherwise is clear that the defendant is entitled to

review of that claim. Subsequent to Waz, this court

declined on multiple occasions to reach unpreserved

constitutional claims when the appellant expressly

failed to seek review under Golding. See, e.g., State v.

Andresen, 256 Conn. 313, 323–24, 773 A.2d 328 (2001)

(sufficiency of evidence to support conviction for selling unregistered securities); Ghant v. Commissioner

of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000)

(claim of state constitutional right to appeal).

Subsequently, in State v. Ramos, supra, 261 Conn.

171, the affirmative request requirement made its

appearance for the first time in our case law. In Ramos,

we quoted this passage from Waz, namely, that defendants ‘‘bear the burden of establishing their entitlement

to such review under the guidelines enumerated in

Golding’’; (internal quotation marks omitted) id., quoting State v. Waz, supra, 240 Conn. 371 n.11; in support

of the proposition that a ‘‘party is obligated . . . affirm-
atively to request review under’’ either Golding or the

plain error doctrine. (Emphasis added.) State v. Ramos,

supra, 171. In Ramos, we then declined to review the

defendant’s ‘‘claim that the trial court’s [jury] instruction on provocation was defective.’’ Id., 171–72. In support of this decision, we cited Ghant v. Commissioner

of Correction, supra, 255 Conn. 17, for the proposition

that it is ‘‘inappropriate to engage in [a] level of review

not requested,’’ and noted that the defendant had

‘‘requested neither Golding nor plain error review.’’

State v. Ramos, supra, 171–72.

The decisions of this court following Ramos repeatedly used the term ‘‘affirmative request’’ in describing

the obligation to invoke Golding review. Although none

of those cases ever explained that term specifically,

those opinions nevertheless implied that a requesting

party was required to cite Golding, or at the very least

engage in a threshold layer of briefing demonstrating

the party’s entitlement to Golding review. See, e.g., In

re Melody L., supra, 290 Conn. 154 (‘‘[T]he respondent

does not seek a review under Golding. Her brief makes

no mention of, or request for Golding review. Consequently, we decline to review the respondent’s constitutional claims.’’); id. (noting that constitutional claim

was inadequately briefed so ‘‘therefore [we] could not

address this claim even if Golding review had been

sought’’); State v. McKenzie-Adams, 281 Conn. 486, 533

n.23, 915 A.2d 822 (declining to reach unpreserved confrontation clause claim after concluding claim was inadequately briefed because ‘‘the defendant failed to brief

his entitlement either to Golding review or to plain

error review in his main brief’’), cert. denied, 552 U.S.

888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007), overruled

on other grounds by State v. Payne, 303 Conn. 538,

548, 34 A.3d 370 (2012); Lebron v. Commissioner of

Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005)

(stating that court willreach unpreserved constitutional

claims if ‘‘party affirmatively requests and adequately

briefs his entitlement to Golding review,’’ and declining

to reach constitutional claim as inadequately briefed

where ‘‘the [defendant] ma[de] only a passing reference

to Golding forthe first time in his reply brief and fail[ed]

to brief his entitlement to Golding review’’); see also

Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008)

(The court declined to engage in Golding review of

unpreserved claims of improprieties by defense counsel

during summation because ‘‘the plaintiff’s brief is

devoid of legal analysis regarding any of the Golding

prongs or plain error review. In fact, the only discussion

of Golding or plain error review in the plaintiff’s brief

consists of a lone citation, in a footnote, to Golding

and to ‘the plain error doctrine.’ In addition, none of

the cases that the plaintiff cites relate to either Golding

review or plain error review.’’ [Emphasis omitted.]).

Numerous other decisions from this court after Ramos

also failed to define the phrase ‘‘affirmative request’’
and summarily declined to afford Golding review in the

absence of some form of express request by the party

seeking review.14 See, e.g., In re Jan Carlos D., 297

Conn. 16, 20 n.10, 997 A.2d 471 (2010); Johnson v. Commissioner of Correction, supra, 288 Conn. 60; State v.

Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005).

These decisions reciting the affirmative request

requirement make clear the existence of a threshold

briefing requirement to establish a party’s entitlement

to Golding review. Far less clear, however, is why we

apparently imposed such a threshold requirement—in

essence adding a fifth prong to Golding. The ‘‘affirmative request’’ requirement might well have been a result

of a non sequitur in a single opinion, namely Ramos,

taking on a jurisprudential life of its own. This conclusion is borne out by the fact that none of our decisions

have ever explained the purpose of requiring a defendant seeking Golding review to brief both his underlying

constitutional claim and the adequacy of his request

forreview ofthat claim.15 This likely is because requiring

parties to undertake an ill-defined, mechanistic layer

of threshold briefing to demonstrate their entitlement

to review of an unpreserved constitutional claims is

fundamentally at odds with the policy goals of Golding,

which is a judicially created rule of reviewability

designed to balance the twin policy goals of vindicating

constitutional rights while ensuring fairness to the parties and the courts alike by safeguarding against the

tactical use of unpreserved claim on appeal. As we

explained in State v. Brunetti, 279 Conn. 39, 55, 901

A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct.

1328, 167 L. Ed. 2d 85 (2007), ‘‘Golding is a narrow

exception to the general rule that an appellate court

will not entertain a claim that has not been raised 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. . . . Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and

categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely

because the defendant failed to identify the violation

at trial. Golding strikes an appropriate balance between

these competing interests: the defendant may raise such

a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is

adequate for appellate review.’’ (Citation omitted.) In

achieving this balance, Golding implicitly chooses

among competing policy concerns; notice to the trial

court and to the opposing party yields to the principle

that colorable constitutional claims should receive

review, the onus of establishing the factual and legal

basis for such claims remaining, as it must, with the
defendant. See State v. Golding, supra, 213 Conn.

239–40.

In our view, Judges Bishop and Dupont, in their separate opinions in this case, best summarized why the

additional briefing hurdle for an appellant imposed by

the affirmative request requirement does nothing to

enhance the notice concerns already addressed by the

first two prongs of Golding, namely, ‘‘to prevent unfair

surprise and to give the state the opportunity to fully

respond to the defendant’s claims.’’ State v. Elson,

supra, 125 Conn. App. 388 n.2 (Bishop, J., concurring

in part and dissenting in part); see id., 381 (Dupont, J.,

concurring). Specifically, if a defendant’s main brief

properly identifies those portions of the record that

form the factual basis for the unpreserved claim and a

legal basis for the constitutional nature of that claim,

then the opposing party and the reviewing court are

more than able to respond to or address that claim as

a matter of reviewability. If the defendant’s brief fails

to identify the relevant record sections, identify the

governing constitutional principles, or apply law to fact

in demonstrating the existence of a constitutional violation requiring reversal, then the claim likely will be

deemed inadequately briefed and willfail on that ground

anyway, regardless of some threshold invocation of

Golding review prior to the briefing of the merits. See,

e.g., In re Melody L., supra, 290 Conn. 154; accord State

v. Golding, supra, 213 Conn. 240–41 (‘‘Patently nonconstitutional claims that are unpreserved at trial do not

warrant special consideration simply because they bear

a constitutional label. . . . For example, once identified, unpreserved evidentiary claims masquerading as

constitutional claims will be summarily dismissed.’’

[Citations omitted.]).

Further, requiring a defendant to acknowledge

expressly that his claim is or may be unpreserved as a

precondition to Golding review; see State v. Elson,

supra, 125 Conn. App. 358–59; does not add anything

to the reviewability calculus. The issue of preservation

is often hotly contested. See, e.g., State v. Dalzell, 282

Conn. 709, 718–19, 924 A.2d 809 (2007). When the constitutional claim is one that is especially fact dependent,

such as a suppression matter, the failure to preserve

the claim before the trial court often results in an inadequate factual record for review, thus leading to the

claim’s failure on the merits.16 See, e.g., id., 721–22

(under first prong of Golding, record inadequate to

review unpreserved claim that traffic stop was unconstitutionally based on pretextual seat belt violation

because of failure to raise issue, and obtain factual

findings, at suppression hearing); State v. Brunetti,

supra, 279 Conn. 63–64 (under first prong of Golding,

record inadequate to review defendant’s claim that consent of both present joint occupants is necessary for

search because ‘‘the issue of the defendant’s mother’s

consent was not before the court, the facts relevant to
the issue of the defendant’s mother’s consent never

were adduced in the trial court’’). If a reviewing court

deems a claim of constitutional dimension to be unpreserved, declining to review that claim for failure of a

defendant to either acknowledge that claim’s unpreserved nature or incant the word Golding would represent a triumph of form over substance. Put differently,

the affirmative request requirement, which has often

caused appellants to adopt a belt and suspenders

approach to the briefing of constitutional claims by

arguing preservation and affirmatively claiming entitlement to Golding review as a safeguard, has served only

to swell briefs with boilerplate and block quotes that

are the understandable product of abundant caution by

the appellants’ counsel.17

Indeed, beyond expediting the writing of appellate

opinions disposing of seemingly specious unpreserved

claims on direct appeal, we agree with Judge Dupont

that all articulating a fifth threshold prong of Golding

accomplishes—particularly when the merits of the

underlying claim have been briefed adequately to demonstrate reviewability and potential reversibility under

the four prongs of Golding—is sowing grounds for

‘‘future habeas corpus petitions and other cases, both

civil and criminal, that allege ineffective assistance of

appellate counsel for failure to obtain appellate review

of an unpreserved constitutional claim . . . .’’ State v.

Elson, supra, 125 Conn. App. 387 (Dupont, J., concurring). This, of course, serves no judicial economy, as

the rapidly written appellate opinion of today is nothing

more than kicking the can down the road to be

addressed in the habeas petition of tomorrow—a counterproductive action that ‘‘actually increases the net

workload of the judicial system.’’ (Emphasis omitted.)

State v. Kitchens, 299 Conn. 447, 524, 10 A.3d 942 (2011)

(Katz, J., concurring).

Finally, what is most troubling is that the affirmative

request requirement has appeared to function as a

‘‘magic words’’ test—notwithstanding, as noted by the

Appellate Court, this court’s refusal in a variety of contexts ‘‘to attach talismanic significance to the presence

or absence of particular words or phrases.’’ (Internal

quotation marks omitted.) State v. Elson, supra, 125

Conn. App. 353; see also, e.g., State v. Robinson, 227

Conn. 711, 731, 631 A.2d 288 (1993) (‘‘[t]he fact that the

trial court did not utter the talismanic words that the

evidence was ‘more probative than prejudicial’ does not

indicate that it did not make such a determination’’). For

example, in Johnson v. Commissioner of Correction,

supra, 288 Conn. 60, this court declined Golding review

for the sole reason that the defendant ‘‘failed to request

that we undertake such review’’ or, more to the point, to

say some magic word or phrase. Such a rigid approach is

irreconcilable with the strong principles of public policy

weighing in favor of reviewability that lie at the heart

of Golding, and is entirely inconsistent with our body
of case law that values substance over matters of form.18

See id., 68 (Palmer, J., concurring) (addressing merits

of constitutional claim, notwithstanding petitioner’s

failure to acknowledge its unpreserved nature or

‘‘invoke Golding,’’ because ‘‘arguments and analysis

that the [defendant] raised in support of his ex post

facto claim are precisely the same arguments and analysis that he would have raised if he had invoked

Golding’’).

In this case, the Appellate Court accurately interpreted our body of case law applying the ‘‘affirmative

request’’ prerequisite to Golding review to require

‘‘nothing less than an explicit assertion and analysis in

a party’s main brief that explains that, if the reviewing

court deems a particular claim to be unpreserved, that

claim nonetheless is reviewable on appeal because the

record is adequate to review the claim and it is a claim

of constitutional magnitude.’’ State v. Elson, supra, 125

Conn. App. 354–55. Nevertheless, we determine that the

analysis of public policy and practical considerations

underlying the affirmative requestrequirement set forth

in State v. Wright, supra, 114 Conn. App. 463–64,

although inconsistent with binding precedent from this

court, is better reasoned. Accordingly, we overrule

State v. Ramos, supra, 261 Conn. 171, and its progeny

to the extent that those cases require a defendant to

affirmatively request such review or impart a threshold

level of analysis of entitlement to review under Golding.

19 We conclude, therefore, that to obtain review

of an unpreserved claim pursuant to State v. Golding,

supra, 213 Conn. 239–40, a defendant need only raise

that claim in his main brief, wherein he must ‘‘present

a record that is [adequate] for review and affirmatively

[demonstrate] that his claim is indeed a violation of a

fundamental constitutional right.’’ (Internal quotation

marks omitted.) State v. Wright, supra, 463. Accordingly, the defendant’s failure in his main brief, as stated

by the Appellate Court to (1) ‘‘identify or address any

issues related to the reviewability of the claim,’’ (2)

‘‘state that any extraordinary level of review is

requested,’’ (3) ‘‘refer to the Golding opinion either

by name or in substance [or] address the issue of the

adequacy of the record to review the claim,’’ or (4)

‘‘present an analysis that, if the claim was not preserved,

it nevertheless should be reviewed,’’ did not preclude

consideration of his federal constitutional claim, which

otherwise was properly briefed, identified relevant constitutional authorities, and was founded on an adequate

record for review. State v. Elson, supra, 125 Conn. App.

356; see also State v. Wright, supra, 463–64 (reviewing

claim despite failure to mention Golding because ‘‘the

defendant has provided a record adequate for review

and has sufficiently demonstrated, by discussion ofrelevant authority, that his claim . . . implicates his sixth

amendment right to confront witnesses and his fourteenth amendment due process right to obtain exculpa-
tory evidence’’).

B

Merits of the Defendant’s Constitutional Claim

We now turn to a review of the defendant’s constitutional claim under Golding. Relying heavily on Judge

Bishop’s concurring and dissenting opinion; see State

v. Elson, supra, 125 Conn. App. 395–96; the defendant

contends that application of the ‘‘totality of the circumstances’’ analysis articulated in State v. Kelly, supra,

256 Conn. 81–82, demonstrates that the trial court

improperly punished him at sentencing for exercising

his constitutional right to a jury trial. Although we conclude that the claim is reviewable under the first two

prongs of Golding, we are guided by the totality of the

circumstances analysis adopted in Kelly; see id., 82;

and conclude that the defendant’s claim fails under

Golding’s third prong, which requires that he demonstrate that ‘‘the alleged constitutional violation clearly

exists and clearly deprived the defendant of a fair trial

. . . .’’ State v. Golding, supra, 213 Conn. 240.

We note at the outset that this unpreserved claim is

reviewable under the first two prongs of State v. Golding, supra, 213 Conn. 239, because: (1) the record is

adequate for review as the trial court’s remarks during

sentencing are set forth in the transcripts in their

entirety;20 and (2) the claim is of constitutional magnitude, as demonstrated by the defendant’s discussion of

relevant authority in his main brief. See, e.g., State v.

Kelly, supra, 256 Conn. 80–81 (discussing sixth amendment to United States Constitution and article first, § 8,

of the Connecticut constitution). We now turn to the

third prong of Golding, and determine whether ‘‘the

alleged constitutional violation clearly exists and

clearly deprived the defendant of a fair trial . . . .’’

State v. Golding, supra, 240.

Our analysis under the third prong of Golding begins

with State v. Kelly, supra, 256 Conn. 79–80, which is

our leading decision21 with respect to whether a trial

court violates a defendant’s ‘‘federal and state constitutional rights by improperly considering, at the sentencing phase of the proceedings, the defendant’s decision

to proceed to trial.’’22 In Kelly, the defendant challenged

the trial court’s remark at ‘‘the conclusion of the defendant’s sentencing hearing, and prior to imposing sentence . . . that ‘[t]he general factors which I have

considered in this matter is whether or not there was

a plea or a complete trial, and that is one of the legal

factors to consider in sentencing.’ ’’

23 Id., 80.

In resolving this claim we noted that, ‘‘[a]s a general

matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters.

On appeal, we will disturb a trial court’s sentencing

decision only if that discretion clearly has been abused.

. . . In spite of that discretion, however, the [a]ugmen-
tation 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.’’

(Citation omitted; emphasis added; internal quotation

marks omitted.) Id., 80–81. Reviewing other federal and

state courts’ approaches to similar claims, we adopted

what we deemed to be the majority view,24 and concluded ‘‘that review of claims that a trial court lengthened a defendant’s sentence as a punishment for

exercising his or her constitutional right to a jury trial

should be based on the totality of the circumstances.

We further [held] that the burden of proof in such cases

rests with the defendant.’’ Id., 82. In so concluding,

we rejected as a constitutional matter a minority view

employing a ‘‘ ‘per se’ rule requiring a remand for resentencing whenever a colorable claim is raised by a defendant that his sentence was lengthened because of his

choice to stand trial.’’25 Id.

Applying this majority view in Kelly, we determined

that ‘‘[n]o fair reading of the record would permit the

conclusion that the trial court’s comment should be

understood to mean that it was lengthening the defendant’s sentence based on his choice to stand trial.

Rather, we interpret[ed] the trial court’s remark as a

reminderto the defendant ofthe oft acknowledged truth

that many factors favor relative leniency for those who

acknowledge their guilt . . . and thus help conserve

scarce judicial and prosecutorial resources for those

cases that merit the scrutiny afforded by a trial. . . .

State v. Coleman, 242 Conn. 523, 544, 700 A.2d 14 (1997).

There is a world of difference between that reminder

and a clear showing that the defendant received a

lengthier sentence because he chose to exercise his

right to a jury trial.’’26 (Internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 84. We then concluded that the ‘‘totality of the circumstances

surrounding the defendant’s sentencing gave no indication that the trial court improperly augmented the

defendant’s sentence based on his decision to stand

trial. As the trial judge [in Kelly] noted, he gave particular consideration to the age of the victim, the age of

the defendant, the lack of closure of the matter for the

eleven years preceding the second trial, the fact that the

sentence was not influenced by other criminal matters

pending againstthe defendant and,finally, proportionality.’’ Id., 83; accord State v. Fisher, 121 Conn. App. 335,

350–52, 995 A.2d 105 (2010) (applying Kelly totality of

circumstances analysis to claim that trial court improperly took defendant’s silence into account, thereby penalizing him for exercise of fifth amendment rights, in

dispositional phase of violation of probation proceeding).

Having reviewed the totality of the sentencing record

in the present case, we conclude that the defendant

has not carried his burden of proving that the trial court

penalized him for exercising his constitutional right to
a jury trial. First, we note that the length of the sentence

that the defendant received must be evaluated relative

to the maximum sentence faced by the defendant and

the sentence recommended by the state. In this case, the

maximum sentence would have been thirty-five years

imprisonment,27 and the state recommended that the

trial court sentence the defendant to thirty-five years

imprisonment, suspended after twenty-five years, followed by five years probation with special conditions.

See State v. Elson, supra, 125 Conn. App. 335. The trial

court, however, did not follow that recommendation

and, instead, sentenced the defendantto a total effective

sentence of twenty-five years imprisonment, execution

suspended after twenty years, followed by five years

of probation with special conditions, fifteen years less

than the defendant’s maximum exposure, and five years

less than what the state recommended. See id., 338.

The trial court’s decision to sentence the defendant to

a term of imprisonment shorterthan both the maximum

sentence and what the state had recommended indicates that the trial court did not intend to penalize the

defendant for exercising his right to a trial.

The lack of vindictiveness evinced in the length of

the sentence is supported by the fact that the vast majority of the trial court’s sentencing remarks reflected a

detailed focus on ‘‘legitimate sentencing considerations,’’ namely, victim impact evidence; see State v.

Coleman, supra, 242 Conn. 546–47; and the defendant’s

demeanor, criminal history, presentence investigation

report, prospect for rehabilitation and ‘‘general lack of

remorse forthe crimes’’ of which he has been convicted.

State v. Anderson, 212 Conn. 31, 50, 561 A.2d 897 (1989);

see also State v. Eric M., 271 Conn. 641, 653–54, 858

A.2d 767 (2004); State v. Barnes, 33 Conn. App. 603,

610, 637 A.2d 398 (1994), aff’d, 232 Conn. 740, 657 A.2d

611 (1995). Indeed, it is significant that, when the trial

court made the specific comments at issue, it did so

in the context of discounting the mitigating factors,

including the defendant’s allocution, statements from

a family friend and his father, and a letter from his

mother, rather than in its separate recitation of factors

that would justify lengthening the defendant’s sentence,

including the victim impact evidence, the severity of

the defendant’s attack on the victim, the randomness

of the attack, the defendant’s dangerousness as

reflected by his pattern of violent behavior, which has

been exacerbated by his substance abuse problems that

have not been treated successfully, his incredible trial

testimony, and the fact that he committed the crimes

while on pretrial release for other pending felony

charges. See State v. Elson, supra, 125 Conn. App. 337–

38. Thus, the totality of the circumstances indicates

that the trial court’s actions were consistent with the

maxim that, ‘‘[a]lthough a court may deny leniency to

an accused who . . . elects to exercise a statutory or

constitutional right, a court may not penalize an
accused for exercising such a right by increasing his

or her sentence solely because of that election.’’ State

v. Revelo, 256 Conn. 494, 513, 775 A.2d 260, cert. denied,

534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001).

Accordingly, we conclude that the defendant has not

carried his burden of proving, on the basis of the totality

of the circumstances, that the trial court augmented

his sentence in retaliation for the exercise of his right

to stand trial.

II

SUPERVISORY AUTHORITY CLAIMS

We next turn to the dispositive supplemental issue,

namely, whether we should use our supervisory authority to remand this case for a new sentencing proceeding.

In his supplemental brief, the defendant claims that the

exercise of our supervisory power, on a sua sponte

basis, is appropriate because the state’s appellate case

law on this point is inconsistent and, therefore, ‘‘does

not effectively put defendants and their counsel on

notice as to what is required in this jurisdiction in order

to properly preserve claims of sentencing impropriety

. . . .’’ Relying on State v. Coleman, supra, 242 Conn.

523, and State v. Rose, 305 Conn. 594, 46 A.3d 146 (2012),

the defendant further argues that the use of our supervisory powers is appropriate to ensure public confidence

in the integrity and fairness of the judicial system,

including with respect to sentencing matters. Thus, the

defendant contends that we should ‘‘invoke [our] supervisory authority to warn the trial courts that their consideration of a defendant’s election to proceed to trial,

or other fundamental constitutional right, in sentencing

the defendant shall not be tolerated, and more specifically, that the trial courts must not equate a defendant’s

exercise of his right to trial with a lack of remorse.’’

In response, the state contends that we should not

exercise our supervisory authority because the defendant failed to request that relief properly in his main

brief in the Appellate Court and the record is ambiguous

and, therefore, inadequate with respect to whether the

trial court actually lengthened the defendant’s sentence

because he had elected to stand trial. Citing State v.

Lockhart, 298 Conn. 537, 577, 4 A.3d 1176 (2010), State

v. Andrews, 248 Conn. 1, 20, 726 A.2d 104 (1999), and

State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998),

the state further emphasizes that we should invoke our

supervisory powers only ‘‘rare[ly]’’ and ‘‘ ‘with great

caution’ ’’ when ‘‘traditional protections are inadequate

to ensure the fair and just administration of the courts.’’

Positing that the trial court’s comments were constitutionally indistinguishable from those determined not to

require reversal in State v. Kelly, supra, 256 Conn. 79–84,

the state further emphasizes that the exercise of our

supervisory powers is inappropriate because there is

no indication of a ‘‘judicial practice or tendency among

sentencing courts to improperly comment upon and/or
penalize a defendant’s exercise of his right to stand

trial,’’ either systemically or with regard to the trial

judge in this case. In this vein, the state contends that

existing doctrines of extraordinary review, such as

Golding and plain error, provide sufficient protection

to criminal defendants and that remanding the case for

resentencing on this ambiguous record would contravene the usual presumption that the trial court acted

correctly. See, e.g., State v. Crumpton, 202 Conn. 224,

231, 520 A.2d 226 (1987). We, however, agree with the

defendant, and utilize our supervisory powers to

emphasize that it would be inappropriate for a trial

judge to consider, at sentencing, a defendant’s decision

to exercise his right to a trial, including with respect

to an assessment of the defendant’s remorse, given the

negative impact such comments are likely to have on

the public’s perception of the criminal justice system.

Accordingly, we remand this case to the trial court for

a new sentencing proceeding.

A

Scope of This Court’s Supervisory Powers

‘‘It is well settled that [a]ppellate courts possess an

inherent supervisory authority over the administration

of justice. . . . Supervisory powers are exercised to

direct trial courts to adopt judicial procedures that will

address matters that are of utmost seriousness, not only

for the integrity of a particular trial but also for the

perceived fairness of the judicial system as a whole.

. . . Under our supervisory authority, we have adopted

rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.’’

(Internal quotation marks omitted.) State v. Rose, supra,

305 Conn. 607. ‘‘Under our supervisory authority, we

have adopted rules intended to guide the lower courts

in the administration of justice in all aspects of the

criminal process. . . . The exercise of our supervisory

powers is an extraordinary remedy to be invoked only

when circumstances are such that the issue at hand,

while not rising to the level of a constitutional violation,

is nonetheless of utmost seriousness, not only for the

integrity of a particular trial but also for the perceived

fairness of the judicial system as a whole.’’ (Citation

omitted; emphasis omitted; internal quotation marks

omitted.) State v. Lockhart, supra, 298 Conn. 576.

Indeed, there is ‘‘no principle that would bar us from

exercising our supervisory authority to craft a remedy

that might extend beyond the constitutional minimum’’

because articulating a rule of policy and reversing a

conviction under our supervisory powers ‘‘is perfectly

in line with the general principle that this court ‘ordinarily invoke[s] [its] supervisory powers to enunciate

a rule that is not constitutionally required but that [it]

think[s] is preferable as a matter of policy.’ ’’

28 (Emphasis omitted.) State v. Rose, supra, 607–608, quoting State

v. Marquez, 291Conn. 122, 166, 967A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

We begin with the state’s arguments with respect to

the propriety of the use of our supervisory powers in

this case. The state contends that we should not use

our supervisory powers to reach the defendant’s unpreserved sentencing claim because he failed to request

this type ofreview in his main brief before the Appellate

Court, doing so only in his reply brief filed in that court.

The state correctly observes that, to receive review, a

claim must be raised and briefed adequately in a party’s

principal brief, and that the failure to do so constitutes

the abandonment of the claim. See, e.g., State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007); State v.

Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). The

purpose of this rule is to provide the court with ‘‘the

full benefit of . . . written argument’’ and to eliminate

the unfair surprise to the appellee that would be created

were an appellant to be permitted to raise a new claim

on appeal in its reply brief. (Internal quotation marks

omitted.) State v. Garvin, supra, 312. An appeals court

may, however, raise the question of whether to use

its supervisory powers sua sponte. See, e.g., State v.

Santiago, 245 Conn. 301, 332 n.20, 715 A.2d 1 (1998).

When an appellate court chooses to exercise this

authority after oral argument, as we have in the present

appeal, concerns regarding unfair surprise and inadequate argumentation can be alleviated by an order

requiring the parties to file supplemental briefs. See,

e.g., State v. Rose, supra, 305 Conn. 604–605 (sua sponte

orderrequiring parties to brief supervisory powers issue

after oral argument of appeal where certified question

concerned applicability of constitutional harmless error

analysis to defendant’s compelled appearance in prison

attire); accord State v. Dalzell, supra, 282 Conn. 715

(‘‘[i]f 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’’). Accordingly,

we conclude that the defendant’s failure to brief his

supervisory authority claim properly in the Appellate

Court does not preclude us from raising that issue sua

sponte and deciding it subsequent to the receipt of

supplemental briefing from the parties.

We next turn to the state’s contention that existing

constitutional, statutory and proceduralrules, including

bypass doctrines permitting the review of unpreserved

claims such as State v. Golding, supra, 213 Conn. 239–

40, and plain error,29 are ‘‘generally adequate to protect

the rights of the defendant and the integrity of the

judicial system’’; (internal quotation marks omitted)

State v. Lockhart, supra, 298 Conn. 576; thus rendering

it unnecessary and inappropriate to utilize our supervisory authority ‘‘for the sole purpose of vacating some

portion or all of a criminal judgment merely to redress

a perceived error in an individual case.’’ See also State

v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997)
(noting that supervisory authority ‘‘is not a form of freefloating justice, untethered to legal principle’’ [internal

quotation marks omitted]). We agree with the state that

the supervisory authority of this state’s appellate courts

is not intended to serve as a bypass to the bypass,

permitting the review of unpreserved claims of case

specific error—constitutional or not—that are not otherwise amenable to relief under Golding or the plain

error doctrine. ‘‘Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly

disparate use of our supervisory powers.’’(Internal quotation marks omitted.) State v. Anderson, 255 Conn.

425, 439, 773 A.2d 287 (2001). Thus, a defendant seeking

review of an unpreserved claim under our supervisory

authority must demonstrate that his claim is one that,

as a matter of policy, is relevant to ‘‘the perceived fairness of the judicial system as a whole,’’ most typically

in that it lends itself to the adoption of a procedural rule

that will ‘‘guide the lower courts in the administration of

justice in all aspects of the criminal process.’’30 (Internal

quotation marks omitted.) State v. Rose, supra, 305

Conn. 607; see also State v. Anderson, supra, 255 Conn.

441 (Where the trial court had conducted the proper

preliminary inquiry under State v. Brown, 235 Conn.

502, 528, 668 A.2d 1288 [1995], ‘‘the use of [this court’s]

supervisory authority [to order a new trial] would be

inappropriate . . . because it would not have sufficient boundaries to guide future trial courts. Rather, it

would more likely create confusion as to the proper

procedures to follow in jury misconduct cases.’’). In

our view, adherence to this unifying principle mitigates

against the specter of arbitrary, result oriented, and

undisciplined jurisprudence that may be a potential risk

of the expansive use of our supervisory powers. Thus,

we turn to the merits of the defendant’s claims to determine whether they implicate the perceived fairness of

the system as a whole.31

B

This Court’s Supervisory Powers in the Sentencing

Context

1

Background

We have previously utilized our supervisory powers

to craft proceduralrules that protect against the appearance of a judge penalizing a defendant for the exercise

of his constitutional rights because ‘‘[t]o punish a person because he has done what the law plainly allows

him to do is a due process violation of the most basic

sort . . . .’’ (Citation omitted.) Bordenkircher v.

Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604

(1978). Most notably, in State v. Coleman, supra, 242

Conn. 541, we refrained from determining, ‘‘for state

constitutional purposes, as to whether a presumption

of vindictiveness attaches where a defendant previously
has been sentenced underthe terms of a plea agreement

and, having successfully challenged his conviction,

receives a greater sentence following a trial,’’32 but nevertheless utilized our supervisory powers to conclude

that ‘‘such a defendant should be afforded an explanation, if one is requested, justifying the enhanced sentence.’’33 In utilizing our supervisory powers, we

emphasized that ‘‘[a]n important function of this court

is to ensure public confidence in the integrity of the

judicial system. This confidence is enhanced through

the enactment of rules that safeguard the fairness of

our system of justice. A requirement that the trial court

articulate the objective criteria upon which it relied in

imposing a greater sentence will promote public confidence in the fair and impartial administration of justice

by dispelling concerns that the subsequent sentence

was the product of prosecutorial or judicial vindictiveness.’’ Id.

In Coleman, we determined that our use of supervisory powers to adopt this rule ‘‘dispels these concerns

in two important respects. First, it aids in the eliminat[ion of] even the possibility of retaliation so that the

defendant will have no apprehension about exercising

the right of appeal. . . . Second, because it is [usually]

exceedingly difficult to establish that a judge has retaliated against a defendant for exercising legal rights . . .

the rule ensures thatthere will be an adequate record for

appellate review of a defendant’s claim of retaliation.’’34

(Citations omitted; internal quotation marks omitted.)

Id., 541–42.

Similarly, in State v. Revelo, supra, 256 Conn. 503

and n.19, we deemed the presence or appearance of

vindictiveness in sentencing to be a matter sufficiently

important to justify the use of our supervisory power

to reach an issue that was not preserved and, indeed,

might well have been waived by the trial court’s canvass

informing the defendant that his appellate rights were

limited under General Statutes § 54-94a35 to the substantive issues raised in his motion to suppress. In Revelo,

we noted that the defendant’s ‘‘due process claim gives

rise to an important issue, namely, the proper role of

ourtrial judges in the plea bargaining process, the significance of which transcends this particular case.’’ Id.,

503. Citing Bordenkircher v. Hayes, supra, 434 U.S. 363,

in support of the proposition that ‘‘principles of due

process prohibit a court from retaliating against a defendant merely for exercising a statutory or constitutional

right,’’ we then concluded that the trial court36 had violated the defendant’s due process rights by telling him

that ‘‘he would be required to serve one extra year in

prison if he agreed to plead guilty only after exercising

his right to a judicial determination of his motion to

suppress.’’ State v. Revelo, supra, 513; see also id., 514

(finding ‘‘no difficulty’’ in discerning from record that

‘‘trial court imposed a more severe sentence on the

defendant solely because he asserted his right to a judi-
cial ruling on his motion to suppress’’). We emphasized

that, to avoid the perception of vindictiveness in sentencing, ‘‘it also would be incumbent upon the court to

explain why a greater sentence might be appropriate

. . . to dispel any suggestion that the court was prepared to punish the defendant merely for exercising his

right to a judicial determination of his motion.’’ (Citation omitted.) Id., 516.

2

Trial Courts’ Commentary during Sentencing

In our view, concerns about the appearance of vindictiveness in sentencing expressed in Coleman and Revelo

are not assuaged by the oft-repeated, but difficult to

implement, ‘‘fine distinction’’ noted therein between

extending lenience to those who plead guilty and penalizing those who exercise their rights to a trial.37 See,

e.g., State v. Revelo, supra, 256 Conn. 513–14; State v.

Kelly, supra, 256 Conn. 84; State v. Coleman, supra, 242

Conn. 544. Thus, we find persuasive Judge Bishop’s

comprehensive dissenting opinion, which utilizes the

appellate courts’ supervisory power to reach the defendant’s unpreserved claims. State v. Elson, supra, 125

Conn. App. 388–89. In particular, we agree with Judge

Bishop that, given our state’s extremely heavy reliance

on plea bargaining in resolving criminal cases;38 see,

e.g., State v. D’Antonio, 274 Conn. 658, 679–80 n.12, 877

A.2d 696 (2005); we ‘‘must be particularly vigilant in

circumstances in which the right [to a jury trial] may be

in peril. One such circumstance may arise at sentencing.

One court has commented, ‘courts must not use the

sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice.’ United States v. Stockwell, 472

F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948,

93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973).’’ State v. Elson,

supra, 125 Conn. App. 393. Thus, we too observe that,

‘‘[w]here disposition by trial is relatively rare, it is even

more important to public confidence in our judicial

system, if not to due process itself, that the court not

take into consideration at sentencing the rare exercise

of the right of the defendant to require the state to prove

its case at trial.’’ Id., 393 n.7 (Bishop, J., concurring and

dissenting). Accordingly, we conclude, pursuant to our

supervisory authority, that a trial judge should not comment negatively on the defendant’s decision to elect a

trial during sentencing, given the appearance of impropriety of that consideration.39

Further, our conclusion, pursuant to our supervisory

authority, at sentencing, that trial judges should not

comment negatively on a defendant’s election of a trial

supplements the constitutional analysis in State v. Kelly,

supra, 256 Conn. 81, wherein this court emphasized 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.) As

noted previously,40 in Kelly, we adopted what we

deemed to be the majority approach, and concluded

‘‘that review of claims that a trial court lengthened a

defendant’s sentence as a punishment for exercising

his or her constitutional right to a jury trial should be

based on the totality of the circumstances. We further

[held] that the burden of proof in such cases rests with

the defendant.’’ Id., 82. In so concluding, we rejected

as a constitutional matter a minority view employing

a ‘‘ ‘per se’ rule requiring a remand for resentencing

whenever a colorable claim is raised by a defendant

that his sentence was lengthened because of his choice

to stand trial.’’ Id. Our conclusion in this case, made

pursuant to our supervisory powers, supplements the

constitutional rule identified in Kelly because, although

the totality of the circumstances analysis adopted

therein is appropriate for constitutional due process

purposes to determine whether the violation of a nonstructural rule amounts to harmful error requiring the

remedy of reversal,41 it does not provide trial judges

with the clear guidance that typically accompanies the

exercise of our supervisory authority. See State v. Rose,

supra, 305 Conn. 605–606 (utilizing supervisory power

to adopt rule ‘‘that the conviction of a defendant who

is compelled to stand trial in identifiable prison clothing

in violation of his or her constitutional rights is reversible per se’’). Moreover, and as Judge Bishop noted,

except in the ‘‘most blatant’’ cases, it is difficult to

ascertain meaningfully from the record whether a trial

judge has actually held a defendant’s election of a trial

against him. State v. Elson, supra, 125 Conn. App. 392

n.6; see also, e.g., United States v. Perez, 904 F.2d 142,

146 (2d Cir. 1990) (‘‘this court recognizes . . . that it

is not always easy to demonstrate actual vindictiveness’’

[citation omitted]). This is particularly so, given the

‘‘fine line between considering a defendant’s lack of

remorse and penalizing a defendantforrefusing to plead

guilty and insisting on his right to trial’’; State v. Knight,

701 N.W.2d 83, 87 (Iowa 2005); see also footnote 37 of

this opinion and accompanying text; and the fact that

Connecticut lacks sentencing guidelines that might create norms from which otherwise unexplained deviations could be objective evidence of retaliation. See

State v. Elson, supra, 125 Conn. App. 392 n.5 (Bishop,

J., concurring and dissenting). That such comments are,

therefore, not truly amenable to a traditional constitutional harmless error analysis is a factor that is a ‘‘core

[consideration] . . . identified as [a prerequisite] to

the invocation of our supervisory authority.’’ State v.

Rose, supra, 608; see also id., 614 (noting that ‘‘unlike

most other constitutional errors, compelling a defendant to stand trial in identifiable prison clothing is not

just highly demeaning but also potentially highly prejudicial in a manner the effects of which may be very

difficult to measure because they involve a subtle but

ever present cognitive bias’’); id., 614 n.20 (stating that
‘‘ill effects of a defendant’s compelled appearance in

prison clothing being very difficult to measure, we are

loath to engage in . . . harmless error analysis’’).

3

Application to the Merits of This Case

Relying on Judge Robinson’s concurrence in this

case, the state contends, however, that the record is

ambiguous with respect to whether the trial court actually lengthened the defendant’s sentence as a result of

his election of a trial, and that this ambiguity renders

it inadequate for review. See State v. Elson, supra, 125

Conn. App. 375–77. We disagree. The record in this case

is perfectly adequate for review in that the transcript

of the sentencing proceeding tells us verbatim what

happened in the trial court; the only question or ambiguity remaining concerns the possible inferences to be

drawn from the trial court’s comments therein.42 Put

differently, finding this particular record inadequate for

review of this claim would mean that, absent the

extremely unlikely admission by a trial judge that he

or she is lengthening a defendant’s sentence as a result

of the trial election,43 no record would ever be adequate

forreview of a claim like this without the aid of a crystal

ball or mind reader.

Moreover, Judge Robinson’s observations with

respect to the content of the record in this case capture

the very need forthe exercise of our supervisory authority in this context. He aptly observed that ‘‘reasonable

minds can disagree as to whether the court’s statement

concerning the defendant’s remorse actually was factored into the court’s sentence.’’ Id., 377. The apparent

ambiguity in the trial court’s remarks with respect to

the court’s intent to penalize the defendant for exercising his right to a trial, and the disparate inferences that

could be drawn therefrom, lend support to the exercise

of our supervisory authority in order to prevent the

appearance of improper action that reflects poorly on

the ‘‘perceived fairness of the judicial system as a

whole.’’ (Internal quotation marks omitted.) State v.

Rose, supra, 305 Conn. 607; see also State v. Pena, 301

Conn. 669, 684, 22 A.3d 611 (2011) (‘‘we suggest that

our trial courts in future sentencings refrain from

expressing disagreement with the jury’s verdict’’

because doing so ‘‘may undermine public confidence

in the jury system’’); cf. State v. D’Antonio, supra, 274

Conn. 693 n.22 (due process requires ‘‘that a defendant

receive a trial before a court who, at the very least,

appears free of bias’’); Cameron v. Cameron, 187 Conn.

163, 170, 444 A.2d 915 (1982) (‘‘[t]he appearance as well

as the actuality of impartiality on the part of the trier

is an essential ingredient of a fair trial’’).

Finally, we do not in any way intimate that trial courts

are precluded from considering or discussing at sentencing the defendant’s conduct during the trial and
sentencing proceedings, including the apparent veracity

of the defendant’s testimony therein. Beyond forgoing

the potential and permissible exercise of leniency in

exchange for a guilty plea, a defendant who elects a

trial generally incurs greater exposure at sentencing

because ‘‘the relevant sentencing information available

to the judge after the plea will usually be considerably

less than that available after a trial.’’ Alabama v. Smith,

490 U.S. 794, 801, 109 S. Ct. 2201, 104 L. Ed. 2d 865

(1989); accord State v. Coleman, supra, 242 Conn. 543–

44. The defendant’s demeanor, criminal history, presentence investigation report, prospect for rehabilitation

and ‘‘general lack of remorse for the crimes’’ of which

he has been convicted remain ‘‘legitimate sentencing

considerations.’’44 State v. Anderson, supra, 212 Conn.

50; see also State v. Eric M., supra, 271 Conn. 653–54

(same); State v. Barnes, supra, 33 Conn. App. 610 (‘‘a

continued protestation of innocence and lack of

remorse indicate to the sentencing judge the individual’s prospect for rehabilitation’’). To this end, the Iowa

Supreme Court has emphasized that a sentencing court

is ‘‘not preclude[d] . . . from finding a lack of remorse

based on facts other than the defendant’s failure to

plead guilty,’’ but ‘‘must carefully avoid any suggestions

in its comments at the sentencing stage that it was

taking into account the fact [the] defendant had not

pleaded guilty but had put the prosecution to its proof.’’

(Internal quotation marks omitted.) State v. Knight,

supra, 701 N.W.2d 87; see also Jennings v. State, 339

Md. 675, 688, 664 A.2d 903 (1995) (‘‘[A] sentencing court

may consider, on the issue of a defendant’s prospects

for rehabilitation, the defendant’s lack of remorse. The

record in this case does not indicate that the trial court

was considering the defendant’s refusal to plead guilty.

Instead, it was the [defendant’s] present tense refusal

to accept responsibility, or show remorse, for his

actions on which the court focused.’’); State v. Shreves,

313 Mont. 252, 260, 60 P.3d 991 (2002) (‘‘[W]e cannot

uphold a sentence that is based on a refusal to admit

guilt. To do so would reflect an inquisitorial system of

justice rather than our adversarial system.’’); State v.

Burgess, 156 N.H. 746, 760, 943 A.2d 727 (2008) (the

court held ‘‘that a sentencing court may not draw a

negative inference of lack ofremorse from a defendant’s

silence at sentencing,’’ but emphasized that ‘‘this holding does not preclude a court from considering other

evidence besides a defendant’s silence that indicates a

defendant’s lack of remorse. . . . Nor does it prevent

a trial court from considering a defendant’s false trial

testimony as a sentencing factor.’’ [Citation omitted.]).

We conclude, therefore, that the trial court’s remarks,

which created an appearance of impropriety insofar as

they referred adversely to the defendant’s election of

a trial in evaluating the defendant’s remorse and

addressing the effect of the offense and trial on the

victim,45 warrant the invocation of our supervisory
authority to grant the defendant a new sentencing proceeding. An observer hearing the comments at issue

in this case could have perceived that the trial court

‘‘equated the defendant’s exercise of the right to trial

with the absence of remorse’’; State v. Elson, supra, 125

Conn. App. 395 (Bishop, J., concurring and dissenting);

thereby tainting the public’s perception of the sentencing decision in this case. This is particularly so when

the specific comment, namely, that, ‘‘[i]f the defendant

had been truly apologetic, he wouldn’t have put the

victim through the trial,’’ is viewed in the context of the

trial court’s subsequent remark apparently discounting

the defendant’s decision to plead guilty to the bail status

offense under § 53a-40b (1), by noting that it ‘‘would

have been a simple trial and the violation was obvious,

so the admission really did not save the state any

resources.’’(Emphasis added.) Although these remarks,

when viewed in the totality of the circumstances surrounding the rest of the defendant’s sentencing, cannot

be understood as violating the defendant’s due process

rights by penalizing him for exercising his right to a

trial; see part I B of this opinion; they nevertheless,

viewed together, create the perception—if not the actuality—that the trial court, in crafting the sentence,

improperly took into account the defendant’s exercise

of his rights, which the court viewed as an unnecessary

imposition on the system and the victim. Accordingly,

given the adverse effects such commentary may have

on the public’s perception of the inherent fairness of

the criminal justice system, we conclude that a new

sentencing proceeding is required.46

The judgment of the Appellate Court with respect to

the defendant’s sentencing is reversed and the case is

remanded to that court with direction to reverse the

judgment of the trial court in part and to remand the

case to the trial court for a new sentencing proceeding.

In this opinion the other justices concurred.

* This case originally was argued before a panel of this court consisting

of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh.

Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte,

ordered thatthe case be considered en banc. Accordingly, Justices McDonald

and Espinosa were added to the panel, and they have read the record and

briefs and listened to a recording of the oral argument prior to participating

in this decision.

The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 We granted the defendant’s petition for certification limited to the following issue: ‘‘Did the Appellate Court properly conclude that the defendant’s

claims were not reviewable under State v. Golding, [supra, 213 Conn. 233]?’’

State v. Elson, 300 Conn. 904, 12 A.3d 572 (2011).

2 General Statutes § 53a-40b was amended by No. 10-36, § 21, of the 2010

Public Acts, which made certain changes to the statute that are not relevant

to the present appeal. For purposes of clarity, we referto the currentrevision

of the statute.

3 For a more detailed recitation of the underlying facts of this case, see

State v. Elson, supra, 125 Conn. App. 331–34.

4 The jury found the defendant not guilty on the charge of attempt to

commit assault in the first degree.

5

In her impact statement, the victim stated that: ‘‘On September 3, 2004,

the defendant changed my life forever. At the time, I was a newlywed,
married just two months, working on completing my degree at Western

Connecticut State University.

‘‘As I worked on a drawing in White Hall, [the defendant] brutally attacked

me with a knife. . . . As I put up my hands to protect my face he slashed

me with the knife. I don’t know how I found the strength to fight him off,

especially given the pain I was in and the blood covering me, but somehow

I escaped and ran to campus police for assistance. I was in such shock that

I refused to stop running, despite offers of help from other students. I felt

that if I could reach a police officer I would be safe. I cannot stop thinking

about what would have happened if I did not manage to escape, most likely

I would not be here today.

‘‘After the attack my family and I lived in fear that the defendant would

not be found and I would live my life afraid that he would return and . . .

continue to attack or kill other victims. My husband and other family members and friends stayed with me at all times so I would not be alone. He

was apprehended, but I am so fearful.

‘‘I underwent surgery for my hand and had several months of therapy. I

have visible scars on my face and body that will never go away.

‘‘Beyond the physical injuries I’ve suffered, this crime has had a tremendous impact on my life emotionally. Before this happened, I was open and

trusting. Now I am guarded and cautious, always fearing that this could

happen to me again.

‘‘I am now the mother of a four month old—in fact, I testified at the trial

when my baby was only four weeks old. During the trial, it was awful for

me to relive the brutal attack and for my husband, parents, friends, and the

many other family members to hear firsthand the events of that day.

‘‘The fact that the defendant denied he had the capacity to commit this

crime is shocking and shows me that he has not taken responsibility for

what he has done to me. In my opinion, anyone capable of such a brutal

and unprovoked attack will strike again.

‘‘It is my sincere hope that the court recognizes the viciousness of the

crime and the apparent lack of remorse by the defendant and sentences

him to an appropriate punishment. Please protect me and other innocent

victims from further attacks. Thank you.’’

6 The trial court qualified that observation, however, noting that the bail

status charge ‘‘would have been a simple trial and the violation was obvious,

so the admission really did not save the state any resources.’’

7 The defendant also claimed that: ‘‘(1) with regard to his assault conviction, the court improperly permitted the jury to find that his hands were

dangerous instruments, (2) the court improperly admitted certain evidence,

(3) the court, in its jury charge, improperly commented on his interest in

the outcome of the case, improperly commented on the state’s interest in

protecting innocent persons from being convicted of crimes and delivered

an instruction on reasonable doubt that diluted the state’s burden of proof,

[and] (4) the evidence did not support the jury’s verdict with regard to the

assault charge . . . .’’ State v. Elson, 116 Conn. App. 196, 199, 975 A.2d 678

(2009). The Appellate Court rejected these claims, and they are not at issue

in this certified appeal. See id.; see also State v. Elson, supra, 125 Conn.

App. 331.

8 We note that the defendant does not contend in this certified appeal

that the trial court improperly considered the knife at sentencing and, thus,

limits his challenge to the trial court’s comments regarding his decision to

stand trial.

9 The Appellate Court’s dictum relying on State v. Kelly, supra, 256 Conn.

79–84, was a response to a dissenting opinion issued by Judge Bishop. State

v. Elson, supra, 125 Conn. App. 365–66 and 366–67 n.15. The Appellate Court

determined that ‘‘the interests of justice do not require that we exercise

our supervisory powers to grant the defendant relief’’; id., 361; because

‘‘[t]he record in the present case is inherently ambiguous with regard to

whether the court, in fact, augmented the defendant’s sentence because he

elected to stand trial,’’ and ‘‘[o]n appeal, the rulings of the trial court are

entitled to a presumption of correctness; a reviewing court does not presume

error on the basis of an incomplete or ambiguous record.’’ Id., 365.

10 With respect to these separate opinions, we note that Judge Bishop,

joined by Judge Lavine, agreed with the majority’s decision to overrule

Wright, but concluded that, although the defendant had not adequately

requested Golding review of his unpreserved constitutional claim, he would

reach that ‘‘issue by invoking our supervisory power over the administration

of justice in resolving the present appeal.’’ State v. Elson, supra, 125 Conn.

App. 388–89. After reviewing the record, Judge Bishop then concluded that
the case should be remanded for resentencing because the trial court’s

remarks were distinguishable from those deemed not reversible in State v.

Kelly, supra, 256 Conn. 79–84, and had violated the defendant’s due process

rights. See State v. Elson, supra, 125 Conn. App. 395–96, 398–99.

Judge Robinson concurred with the judgment of the Appellate Court,

including the majority’s decision not to utilize its supervisory powers to

reach the defendant’s claims, but wrote ‘‘separately to emphasize the point

that a trial court should never take into consideration whether a person

exercised his or her constitutional right to trial by jury and also to dispel

any suggestion that this court’s decision represents tacit approval for such

a practice.’’ Id., 369.

Judge Dupont again concurred in the result separately, concluding that

the defendant’s unpreserved constitutional claim was raised adequately

under State v. Wright, supra, 114 Conn. App. 463, which she would not

overrule, but also concluding that the defendant had failed to prove that

the trial court violated his due process rights at sentencing. See State v.

Elson, supra, 125 Conn. App. 386–87.

11 Accordingly, we leave for another day the first question raised by way

of our supplemental briefing order, namely, whether ‘‘the doctrine of State

v. Golding, [supra, 213 Conn. 233], [should] apply to an unpreserved claim

that a trial judge commented improperly during sentencing on the defendant’s exercise of his constitutional right to a jury trial?’’

12 As the state points out, we acknowledge that the defendant does not

expressly request the overruling or abolition of the affirmative request

requirement. Nevertheless, given the significant inconsistency between the

analysis in State v. Wright, supra, 114 Conn. App. 463–64, and our postRamos case law, we view the defendant’s extensive arguments in support

of the Wright standard as seeking, de facto, the overruling of the affirmative

request requirement. Thus, for the purpose of providing clear guidance to

litigants and the lower courts in this important area of appellate procedure,

we do not intimate that our adoption of the Wright analysis urged by the

defendant is anything less than complete abandonment of the affirmative

request rule. Further, the state’s brief, which focuses primarily on the consistency of the affirmative request rule as interpreted by the Appellate Court

in this case with existing principles of appellate review, and the inconsistency

of Wright as a corollary, essentially mirrors the stare decisis considerations

in support of rejecting Wright—meaning that the state has not been prejudiced by not having the opportunity to brief a specific claim objecting to

the elimination of the affirmative request rule.

13 In determining that Golding review was appropriate in Waz, this court

cited by analogy to State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995) (per

curiam), wherein the ‘‘state [had] conceded that such review is appropriate,

despite the defendant’s failure to invoke the guidelines set forth in State v.

Golding, [supra, 213 Conn. 239–40], for review of his unpreserved claim of

constitutional error.’’ See State v. Waz, supra, 240 Conn. 371 n.11. We note

that, in its en banc opinion in this case, the Appellate Court distinguished

Roy on the ground that it involved a challenge to the sufficiency of the

evidence and, therefore, belonged in a category that this court has specifically ‘‘disconnected’’ from the need to brief entitlement to Golding review

on the ground that a defendant convicted based on insufficient evidence

‘‘ ‘would therefore necessarily meet the four prongs of Golding.’ ’’ State v.

Elson, supra, 125 Conn. App. 350, quoting State v. Adams, 225 Conn. 270,

276 n.3, 623 A.2d 42 (1993).

We acknowledge that Roy appears to have sowed some confusion about

whether its principle of permitting review under the principles of State v.

Golding, supra, 213 Conn. 239–40, despite the defendant’s failure to invoke

that decision, ‘‘applies to all alleged constitutional deprivations or only those

that relate to a claim that the evidence was insufficient to convince a trier

that every element of an offense has been proven beyond a reasonable

doubt.’’ State v. Rogers, 38 Conn. App. 777, 788 n.10, 664 A.2d 291, cert.

denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116

S. Ct. 799, 133 L. Ed. 2d 747 (1996). The Appellate Court ‘‘interpret[ed] the

words ‘[i]n the circumstances of this case’ to referto unpreserved sufficiency

claims and not to the particular factual situation presented in Roy.’’ Id.; see

State v. Thomas, 62 Conn. App. 356, 361 n.6, 772 A.2d 611 (same), cert.

denied, 256 Conn. 912, 772 A.2d 1125 (2001); see also State v. Wright, supra,

114 Conn. App. 462–63 (citing Roy and Waz in support of proposition that,

‘‘in a number of instances, both [our Appellate Court] and our Supreme

Court have reviewed an unpreserved alleged constitutional claim despite

the defendant’s failure to request a Golding review’’); State v. Liebowitz,
65 Conn. App. 788, 805 n.7, 783 A.2d 1108 (citing Roy in rejecting the state’s

claim ‘‘that Golding review is inappropriate because the defendant, in his

brief, summarily states that his confrontation clause rights were violated

without any citation to authority or analysis’’ stating that ‘‘[a]lthough the

defendant did not provide this court with an overwhelming analysis of his

claim, neither an inadequate briefing of a constitutional issue nor a failure

to invoke the word ‘Golding’ prevents us from reviewing the claim’’), cert.

denied, 259 Conn. 901, 789 A.2d 992 (2001).

14 Other decisions of this court affording Golding review after Ramos

acknowledged the affirmative request requirement without explicating in

detail how the party requesting review complied. See State v. Cutler, 293

Conn. 303, 324–25, 977 A.2d 209 (2009); State v. Bowman, 289 Conn. 809,

815, 960 A.2d 1027 (2008); State v. Reid, 277 Conn. 764, 781, 894 A.2d 963

(2006); see also State v. Cameron M., 307 Conn. 504, 530 n.23, 55 A.3d 272

(2012) (noting state’s claim to contrary, and ‘‘assum[ing], without deciding,

that the defendant’s brief adequately makes an ‘affirmative request’ for

Golding review of his unpreserved constitutional claim’’), cert. denied,

U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013).

15 The closest we came to an explanation was a rather circular and perfunctory citation to Ghant v. Commissioner of Correction, supra, 255 Conn. 17,

for the proposition that ‘‘[i]t is not appropriate to engage in a level of review

that is not requested.’’ (Internal quotation marks omitted.) See, e.g., In re

Melody L., supra, 290 Conn. 154; State v. Ramos, supra, 261 Conn. 171–72.

16 Thus, we disagree with the state’s contention that not requiring a defendant to acknowledge explicitly the unpreserved nature of his claim ‘‘removes

any meaningful consequence of not contemporaneously objecting to a perceived error at trial.’’ A defendant who fails to object to a perceived error

at trial faces numerous ‘‘meaningful consequence[s]’’ with respect to the

odds of his success on appeal, including raising risks that: (1) he may fail

to establish a record adequate for appellate review, thus leading to a loss

under the first prong of Golding; (2) his claim may not be deemed constitutional in nature, thus leading to a loss under the second prong of Golding;

or (3) his or counsel’s inaction may be construed as a waiver of his rights;

see, e.g., State v. Kitchens, 299 Conn. 447, 467–68, 10 A.3d 942 (2011); thus

leading to a loss under the third prong of Golding. Moreover, statistical

analysis demonstrates that removing this artificial and contrived barrier to

the availability of Golding review will not hand defendants the keys to the

jailhouse door, even in jury instruction cases where the record is, by definition, adequate for review. See id., 522 and n.17 (Katz, J., concurring)

(explaining and detailing ‘‘statistics showing that reviewing courts rarely

conclude that the defendant can prevail on a Golding challenge to an

improper jury instruction’’).

17 Moreover, because this court may, on occasion, exercise its supervisory

authority to consider a claim ‘‘that has not been raised appropriately under

. . . Golding’’; State v. Ramos, supra, 261 Conn. 172 n.16; even the most

stringent affirmative request requirement did not generally relieve the prudent appellate prosecutor from responding to the merits of unpreserved

constitutional claims.

18 We disagree with the state’s argument that the approach to the affirmative request requirement adopted by the en banc Appellate Court in the

present case has the salutary effect of being consistent with this court’s

approach ‘‘in cases in which a party seeks review of a state constitutional

claim’’ under State v. Geisler, supra, 222 Conn. 684–85. As our recent state

constitutional case law makes clear, our ‘‘functional,’’ rather than formulaic,

approach to Geisler leads to the review of adequately briefed state constitutional claims despite technical lapses in the application of that decision’s

six factor approach to the analysis of such claims. See State v. Santiago,

305 Conn. 101, 250–51, 49 A.3d 566 (2012) (reviewing defendant’s state

constitutional claim that it violates Connecticut constitution for pecuniary

gain aggravating factor to duplicate element of capital felony by murder for

hire, despite his failure to cite Geisler ‘‘or outline his state constitutional

analysis seeking greater protection using that decision’s well-known factors,’’ because ‘‘his brief functionally addresses in detail the subject matter

of most of the factors, which Geisler and other cases indicate are appropriate

for an independent state constitutional analysis’’).

19 In overruling this body of case law, ‘‘we are mindful that [t]his court

[often] has . . . acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case

law. . . . The doctrine of stare decisis counsels that a court should not

overrule its earlier decisions unless the most cogentreasons and inescapable
logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that

the law is relatively unchanging, it saves resources and it promotes judicial

efficiency. . . . Nevertheless, [s]tare decisis in not an inexorable command;

rather, it is a principle of policy and not a mechanical formula of adherence

to the latest decision. . . . Consequently, [n]one of the foregoing [considerations] . . . necessarily constitutes an insurmountable barrier to a court’s

reconsideration of its prior precedent. With respect to the doctrine of stare

decisis, we repeatedly have observed that [t]he value of adhering to [past]

precedent is not an end in and of itself . . . if the precedent reflects substantive injustice. [Because] [c]onsistency must also serve a justice related end

. . . [c]onsistency obtains its value best when it promotes a just decision.

. . . [E]xperience can and often does demonstrate that a rule, once believed

sound, needs modification to serve justice better. . . . Indeed, [i]f law is

to have current relevance, courts must have and exert the capacity to change

a rule of law when reason so requires. . . . [Thus] [t]his court . . . has

recognized many times that there are exceptions to the rule of stare decisis.

. . . In accordance with these principles, we have not hesitated to revisit and

overrule our prior holdings, including prior holdings applicable to criminal

matters . . . once we are convinced that they were incorrect and unjust.’’

(Citations omitted; internal quotation marks omitted.) State v. Moulton, 310

Conn. 337, 362–63 n.23, 78 A.3d 55 (2013).

20 For additional discussion of the adequacy of the record for review,

including the state’s claims to the contrary, see footnote 42 of this opinion

and accompanying text.

21 But see State v. Rice, 172 Conn. 94, 103, 374 A.2d 128 (1976) (rejecting

similar claim with no analysis beyond observation that‘‘[a]n essential ingredient in any plea bargaining situation is the recognition by both the prosecution

and the defense that a trial may produce a less favorable result for the

defendant’’).

22 In distinguishing State v. Kelly, supra, 256 Conn. 23, from the present

case, Judge Bishop described the claim presented and decided in Kelly as

‘‘focus[ing] . . . on whether the court lengthened a defendant’s sentence

as punishment for exercising the right to trial,’’ rather than ‘‘on whether the

court impermissibly took the defendant’s [decision to] exercise [that right]

into consideration at sentencing.’’ State v. Elson, supra, 125 Conn. App. 395

n.8. The defendant echoes this analysis, and contends that his constitutional

claim in this case is focused on the impropriety of the trial court’s consideration of his trial election, rather than the impropriety of the elongation of

his sentence as a consequence of that consideration. We disagree with this

assessment of the claims raised and decided in Kelly. Rather, we agree with

the Appellate Court majority’s view of the claims described in Kelly, namely,

that the issue therein was framed based on the trial court’s consideration

of the defendant’s exercise of his right to trial, rather than founded ‘‘solely

upon a theory of sentence augmentation . . . .’’ Id., 367 n.15. As noted by

the Appellate Court majority, we stated in Kelly the impropriety of the action

of considering, at sentencing, a defendant’s decision to elect a trial; see

State v. Kelly, supra, 79–80; but required the defendant to prove sentence

augmentation to establish a ‘‘clear showing’’ of a due process violation.

Id., 84.

In any event, the distinction between consideration and augmentation is,

for the practical purpose of establishing a constitutional violation requiring

reversal, is one that lacks a meaningful difference. Under Kelly, consideration and augmentation are inseparable with respect to establishing the

existence of a constitutional violation requiring reversal; augmentation is

necessary to establish the requisite harm. Put differently, our adoption of

a totality of the circumstances analysis in Kelly indicates a rejection of an

approach deeming consideration of the defendant’s trial election to be, in

essence, structural constitutional error requiring per se reversal.

23 We noted in Kelly that the trial ‘‘court’s complete statement regarding

the factors that it had taken into account in sentencing the defendant was

as follows: ‘The general factors which I have considered in this matter is

whether or not there was a plea or a complete trial, and that is one of the

legal factors to consider in sentencing. Whether the motive accomplished—

of accomplishing the act was either need—was need or greed, the defendant’s degree of involvement, the violence and/or its potential for violence,

physical injury to the victim, the mental injury to the victim, the relationship

between the [d]efendant and the victim, the degree of planning, and the

statutory seriousness of the offense convicted of.

‘‘ ‘Mitigating factors which I have considered are age of the defendant,
intelligence, school record or work record, prior criminal record, record

since the offense in question, remorse, either drug addiction or alcohol

involvement, mental problems, attitude, family support and community

support.

‘‘ ‘The law requires me to consider each and every single one of those

factors in pronouncing the sentence and I have done so.

‘‘ ‘I have given special consideration to five factors that I have noted here:

the age of [the victim] a week after her sixteenth birthday; the age of [the

defendant], a high school teenager; the lack of closure of this matter for a

period of eleven years; the fact that this sentence is not punishing [the

defendant] for any matters for which he is currently awaiting disposition

and/or trial.

‘‘ ‘The final factor that I have considered is the rules on proportionality.’ ’’

(Emphasis added.) State v. Kelly, supra, 256 Conn. 80 n.27.

24 We cited, as exemplars of this majority approach: United States v. Tracy,

12 F.3d 1186, 1202 (2d Cir. 1993); United States v. Medina-Cervantes, 690

F.2d 715, 716–17 (9th Cir. 1982); Frank v. Blackburn, 646 F.2d 873, 884–85

(5th Cir. 1980), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123

(1981); United States v. Araujo, 539 F.2d 287, 291–92 (2d Cir.), cert. denied

sub nom. Rivera v. United States, 429 U.S. 983, 97 S. Ct. 498, 50 L. Ed. 2d

593 (1976); United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert.

denied, 414 U.S. 918, 94 S. Ct. 214, 38 L. Ed. 2d 154 (1973); Santana v. State,

677 So. 2d 1339, 1340 (Fla. App. 1996); State v. Brown, 131 Idaho 61, 72–73,

951 P.2d 1288 (App. 1998); State v. Eastman, 691 A.2d 179, 184 (Me. 1997);

Mitchell v. State, 114 Nev. 1417, 1428–29, 971 P.2d 813 (1998); State v.

Bonilla, 127 N.M. 566, 570, 985 P.2d 168 (App. 1999); State v. Fitzgibbon,

114 Or. App. 581, 586–87, 836 P.2d 154 (1992); and State v. Tiernan, 645

A.2d 482, 487–88 (R.I. 1994). See State v. Kelly, supra, 256 Conn. 81–82.

25 As examples of the minority approach, we cited: United States v. Capriola, 537 F.2d 319, 321 (9th Cir. 1976); Hess v. United States, 496 F.2d 936,

938–39 (8th Cir. 1974); People v. Wilson, 43 Colo. App. 68, 71, 599 P.2d 970

(1979); and Johnson v. State, 274 Md. 536, 542–43, 336 A.2d 113 (1975). See

State v. Kelly, supra, 256 Conn. 82.

26 We observed that, ‘‘[c]onfronted with claims similar to that of the defendant in this case, courts in other jurisdictions generally have required

remarks by a trial judge to threaten explicitly a defendant with a lengthier

sentence should the defendant opt for a trial, or indicate that a defendant’s

sentence was based on that choice.’’ State v. Kelly, supra, 256 Conn. 82. We

noted further that, when ‘‘a trial court employed more ambiguous language,

however, courts generally have rejected claims that the trial court infringed

on the defendant’s rights.’’ Id., 83; citing State v. Tiernan, 645 A.2d 482,

487 (R.I. 1994) (rejecting defendant’s due process challenge to trial court’s

observation at sentencing that defendant had ‘‘required [the victim] to testify

by exercising his right to stand trial’’ [internal quotation marks omitted]).

27 See General Statutes (Rev. to 2003) § 53a-35a (6) and (8); see also

General Statutes § 53a-59 (b) (first degree assault is class B felony); General

Statutes § 53a-95 (b) (unlawful restraint in first degree is class D felony);

General Statutes (Rev. to 2003) § 53a-40b (1) (ten year sentence enhancement for felonies committed while on pretrial release).

28 In contrast, it would be inappropriate to use our supervisory power to

adopt a new rule when doing so would mandate administrative or policy

changes beyond the judicial milieu. See State v. Lockhart, supra, 298 Conn.

576–77 (deferring to legislature and declining to utilize supervisory power

to adopt rule requiring confessions to be recorded to be admissible where

its effect would go beyond judicial actors to require all law enforcement

agencies to record confessions where defendants were protected by ‘‘procedures already in place to prevent the admission into evidence of involuntary

or untrustworthy confessions, namely, the voluntariness determination that

must be made by the trial court’’); State v. Marquez, 291 Conn. 122, 165–67,

967 A.2d 56 (declining to utilize supervisory authority to mandate three

procedural changes to identification procedures because ‘‘development and

implementation of identification procedures ‘should continue to be the province of the law enforcement agencies of this state’ ’’ to be evaluated judicially

on case-by-case basis for unnecessary suggestiveness), cert. denied, 558

U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

29 It is well settled that ‘‘[t]he plain error doctrine . . . is not . . . a rule

of reviewability. It is a rule of reversibility. That is, it is a doctrine that this

court invokes in order to rectify a trial court ruling that, although either

not properly preserved or never raised at all in the trial court, nonetheless

requires reversal of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly extraordinary

situations where the existence of the error is so obvious that it affects the

fairness and integrity of and public confidence in the judicial proceedings. . . .

‘‘[W]e recently clarified the two step framework under which we review

claims of plain error. First, we must determine whether the trial court in

fact committed an error and, if it did, whether that error was indeed plain

in the sense that it is patent [or] readily discernable on the face of a factually

adequate record, [and] also . . . obvious in the sense of not debatable. . . .

We made clear . . . that this inquiry entails a relatively high standard, under

which it is not enough for the defendant simply to demonstrate that his

position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable

as to warrant the extraordinary remedy of reversal.’’ (Internal quotation

marks omitted.) State v. Darryl W., 303 Conn. 353, 371–73, 33 A.3d 239

(2012); see also Practice Book § 60-5.

30 A comprehensive catalog of cases wherein we have utilized our supervisory powers to articulate procedural rules in the criminal justice context

is set forth in Justice Palmer’s concurring opinion in State v. Lockhart,

supra, 298 Conn. 601–603 n.12. Analysis of these cases, and several decided

after Lockhart, reveals that they can be divided into two different categories.

In the first category are cases wherein we have utilized our supervisory

power to articulate a procedural rule as a matter of policy, either as holding

or dictum, but without reversing convictions or portions thereof. In the

second category are cases wherein we have utilized our supervisory powers

to articulate a rule or otherwise take measures necessary to remedy a

perceived injustice with respect to a preserved or unpreserved claim on

appeal. Although we recently have noted that, ‘‘[o]ur cases have not always

been clear as to the reason for this distinction’’; State v. Diaz, 302 Conn.

93, 107 n.11, 25 A.3d 594 (2011); a review of the cases in both categories

demonstrates that, in contrast to the second category, the first category

consists of cases where there was no perceived or actual injustice apparent

on the record, but the facts of the case lent themselves to the articulation

of prophylactic procedural rules that might well avert such problems in

the future.

Examples of the first category include: State v. Medrano, 308 Conn. 604,

631, 65 A.3d 503 (2013) (The court utilizes its supervisory power to ‘‘direct

our trial courts in the future to refrain from instructing jurors, when a

defendant testifies, that they may specifically consider the defendant’s interest in the outcome of the case and the importance to him of the outcome

of the trial. Instead, we instruct the trial courts to use the general credibility

instruction to apply to a criminal defendant who testifies.’’); State v. Pena,

301 Conn. 669, 684, 22 A.3d 611 (2011) (declining to use supervisory power

to overrule State v. Huey, 199 Conn. 121, 505 A.2d 1242 [1986], but stating

that ‘‘we suggest that our trial courts in future sentencings refrain from

expressing disagreement with the jury’s verdict’’); State v. Ouellette, 295

Conn. 173, 191–92, 989 A.2d 1048 (2010) (when state attests to witness’

cooperation at that witness’ sentencing hearing, sentencing court must

‘‘inquire into the nature of any plea agreement between the state and the

witness, and any representations concerning that agreement made during

the trials at which the witness testified’’); State v. Ledbetter, 275 Conn. 534,

578–79, 881 A.2d 290 (2005) (requiring jury instruction concerning certain

risks inherent in eyewitness identification procedures), cert. denied, 547

U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006); State v. Padua, 273

Conn. 138, 178–79, 869 A.2d 192 (2005) (requiring appeals court to address

defendant’s insufficiency of evidence claim first, if claim is properly briefed

and sufficient record exists, even if another meritorious claim would result

in new trial, because successful sufficiency claim would render new trial

unnecessary); Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287 (2002)

(when criminal defendant pleads not guilty by reason of mental disease or

defect and state substantially agrees with defendant’s plea, court must canvass defendant to ensure that plea is voluntary and made with full awareness

of consequences); State v. O’Neil, 261 Conn. 49, 74–76, 801 A.2d 730 (2002)

(revising and directing specific version of ‘‘Chip Smith’’ charge in future

cases); State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (using

supervisory power to avoid ‘‘danger of juror misunderstanding’’ by ‘‘direct[-

ing] our trial courts in the future to refrain from instructing jurors that one

who uses a deadly weapon on the vital part of another ‘will be deemed to

have intended’ the probable result of that act and that from such a circumstance the intent to kill properly may be inferred’’); State v. Griffin, 253
Conn. 195, 209–10, 749 A.2d 1192 (2000) (prohibiting use of ‘‘two-inference’’

jury instruction as potentially misleading jury as to application of reasonable

doubt standard); State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125

(1999)(precluding jury instruction stating thatreasonable doubt is not doubt

suggested by ‘‘ ‘ingenuity of counsel’ ’’); State v. Schiappa, 248 Conn. 132,

168, 728 A.2d 466 (prohibiting use of jury instruction that requirement of

proof beyond reasonable doubt is rule intended to ‘‘protect the innocent

and not the guilty’’ [internal quotation marks omitted]), cert. denied, 528

U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Coleman, supra,

242 Conn. 541–42 (concluding that record indicated that reversal was not

necessary after adopting rule requiring sentencing court, upon defendant’s

request, to articulate its reasons for imposing greater sentence after trial

than that previously imposed under terms of withdrawn plea agreement);

State v. Gould, 241 Conn. 1, 14–15, 695 A.2d 1022 (1997) (requiring that

videotaped deposition testimony be replayed in open court, under supervision of trial judge, and in presence of parties and counsel, rather than in

jury room, but holding no prejudice from failure to do so in that case);

State v. Patterson, 230 Conn. 385, 397–400, 645 A.2d 535 (1994) (adopting

unwaivable supervisory rule for future cases requiring trial judge to be

present in court to oversee voir dire in criminal trial, but determining that

defendant had waived his objection to judge’s absence as constitutional

matter); and State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166 (establishing procedure to be followed during jury selection when defendant raises

claim that state has peremptorily excluded juror on basis of race pursuant

to Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1715, 90 L. Ed. 2d 69

[1996]), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).

Examples of the second category include: State v. Polanco, 308 Conn.

242, 256–58, 61 A.3d 1084 (2013) (overruling merger approach articulated

in State v. Chicano, 216 Conn. 699, 584 A.2d 425 [1990], cert. denied, 501

U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 [1991], with vacatur approach

when defendant is convicted of greater and lesser included offenses); State

v. Rose, supra, 305 Conn. 605–606 (adopting rule of per se reversal when

defendant is compelled to stand trial in prison garb); State v. Connor, 292

Conn. 483, 518–19, 533, 973 A.2d 627 (2009) (remanding case to trial court for

findings after adopting rule requiring trial court, upon finding that mentally ill

or incapacitated criminal defendant is competent to stand trial and to waive

right to counsel at that trial, to make additional determination that defendant

is competent to conduct trial proceedings without counsel); State v. Gore,

288 Conn. 770, 787–90, 955 A.2d 1 (2008) (upholding reversal of conviction

after articulating rule that when criminal defendant seeks to waive right to

trial by jury without written waiver, court must canvass defendant to ensure

that waiver is knowing, intelligent and voluntary); State v. Santiago, supra,

245 Conn. 340 (remanding case for further proceedings after expanding

scope of inquiry required for general allegations of juror misconduct when

alleged misconduct results from racial bias of juror or jurors); State v.

Brown, 235 Conn. 502, 528–30, 668 A.2d 1288 (1995) (ordering remand for

further proceedings after adopting rule requiring trial judge presented with

allegations of juror misconduct to conduct preliminary inquiry into such

allegations); and State v. Jones, 234 Conn. 324, 347–50, 662 A.2d 1199 (1995)

(requiring bifurcation of jury trial proceedings in capital felony cases when

defendant is charged under General Statutes § 53a-54b [3], requiring proof

of priorintentional murder conviction, and placing burden on state to demonstrate lack of need for bifurcated proceeding).

We have also utilized our supervisory powers in a very limited manner

to address claims of and deter repeated instances of prosecutorial impropriety. For discussion of these cases, see footnote 31 of this opinion.

31 As noted by the state, we also have utilized our supervisory authority

to reach an unpreserved claim and reverse an individual conviction as a

sanction ‘‘to redress repeated and deliberate misconduct by a prosecutor

seeking to increase the likelihood of conviction even though that conduct

does not necessarily require reversal as a due process violation. . . . [W]e

pa[id] particular attention to the fact that the prosecutor knew or should

have known that the conduct was improper and was part of a pattern of

similar misconduct in other cases. We exercise[d] our supervisory authority

in order to protect the rights of defendants and to maintain standards

among prosecutors throughout the judicial system rather than to redress

the unfairness of a particular trial. We [did] so in order to send a strong

message that such conduct will not be tolerated.’’ (Internal quotation marks

omitted.) State v. Payne, 260 Conn. 446, 451–52, 797 A.2d 1088 (2002); see

also State v. Cohane, 193 Conn. 474, 499–500, 479 A.2d 763 (relying on
supervisory powers in reversing conviction after finding violation pursuant

to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963],

that merited reversal), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed.

2d 331 (1984); State v. Ubaldi, 190 Conn. 559, 576, 462 A.2d 1001 (utilizing

supervisory power to reverse conviction because ‘‘[w]here a prosecutor . . .

interjects remarks [during argument] deliberately intended to undermine the

rulings of the trial court to the prejudice of the defendant, his conduct is

so offensive to the sound administration of justice that only a new trial can

effectively prevent such assaults on the integrity of the tribunal’’), cert.

denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Our use of our

supervisory authority to resolve these claims in Payne and Ubaldi remains

consistent with the unifying principle that the supervisory power should

be utilized when necessary to protect the system’s integrity; leaving the

prosecutorial violations in those cases unaddressed would have adversely

affected public perception of the criminal justice system—at least in those

particular judicial districts.

32 Compare North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. 2072,

23 L. Ed. 2d 656 (1969) (adopting presumption of vindictiveness when trial

court imposes more severe sentence after new trial challenging original

conviction, and ‘‘to assure the absence of such a motivation,’’ requiring ‘‘that

whenever a judge imposes a more severe sentence upon a defendant after

a new trial, the reasons for his doing so must affirmatively appear’’ and ‘‘be

based upon objective information concerning identifiable conduct on the

part of the defendant occurring after the time of the original sentencing

proceeding’’), with Alabama v. Smith, 490 U.S. 794, 801, 109 S. Ct. 2201,

104 L. Ed. 2d 865 (1989)(Pearce presumption of vindictiveness does not apply

to higher sentence imposed after jury trial following successful challenge to

guilty pleas).

33 We did, however, note that Coleman did not raise any preservation

issues because, although the defendant did not request an articulation of

the second trial judge’s reason for imposing a greater sentence, he did argue

that the second trial judge could not impose a greater sentence, and the state

did not object to the court’s ‘‘consideration of the defendant’s supervisory

authority claim . . . .’’ State v. Coleman, supra, 242 Conn. 542 n.22.

34 We further observed that this ‘‘rule places little, if any, additional burden

on trial judges, who frequently are asked to articulate the reasons underlying

particular sentencing decisions. Furthermore, the number of cases in which

the rule will be applicable is likely to be extremely small.’’ State v. Coleman,

supra, 242 Conn. 542.

35 General Statutes § 54-94a provides: ‘‘When a defendant, prior to the

commencement of trial, enters a plea of nolo contendere conditional on the

right to take an appeal from the court’s denial of the defendant’s motion

to suppress or motion to dismiss, the defendant after the imposition of

sentence may file an appeal within the time prescribed by law provided a

trial court has determined that a ruling on such motion to suppress or motion

to dismiss would be dispositive of the case. The issue to be considered in

such an appeal shall be limited to whether it was proper for the court to

have denied the motion to suppress or the motion to dismiss. A plea of nolo

contendere by a defendant under this section shall not constitute a waiver

by the defendant of nonjurisdictional defects in the criminal prosecution.’’

36 We noted that, in contrast, under Bordenkircher v. Hayes, supra, 434

U.S. 363, the prosecutor may ‘‘[threaten] increased charges during the course

of plea negotiations and mak[e] good on the threat if the defendant refuses

to enter a plea’’; State v. Revelo, supra, 256 Conn. 514; but emphasized that

the trial court may not do so when participating in negotiations; the court

may, however, apprise the defendant of the potential for a greater sentence

should he not take the plea offer. See id., 516.

37 ‘‘[I]n certain circumstances, it may be difficult to draw a meaningful

distinction between ‘enhancing’ the punishment imposed on an accused

who exercises a constitutional right and denying him the ‘leniency’ that he

claims he would deserve if he waived that right. . . . Although the distinction between refusing to show leniency to an accused who insists on

asserting a constitutional right and punishing an accused for asserting that

right may, at times, be a fine one, there is no difficulty in discerning what

occurred in this case: the trial court imposed a more severe sentence on

the defendant solely because he asserted his right to a judicial ruling on

his motion to suppress. In doing so, the trial court unfairly punished the

defendant for exercising that right in violation of the federal due process

clause.’’ (Citation omitted.) State v. Revelo, supra, 256 Conn. 513–14.

This ‘‘fine distinction’’ between extending leniency to defendants who
plead guilty and penalizing those who exercise their right to a trial has

recently been criticized as an analytical fiction that ‘‘changes merely the

form of the problem, not the substance’’ and therefore ‘‘fails to alleviate the

constitutional difficulties.’’ C. Hessick & F. Hessick, ‘‘Recognizing Constitutional Rights at Sentencing,’’ 99 Cal. L. Rev. 47, 64 (2011); see also id., 63

(‘‘[t]he refusal to grant a defendant leniency that is given to others because

the defendant performed some act—exercising his right to a jury—seems

analytically indistinct from increasing that defendant’s punishment because

he performed that same act’’).

38 In his concurring and dissenting opinion, Judge Bishop described our

criminal justice system as ‘‘almost completely reliant on the plea bargaining

process for the disposition of criminal cases,’’ citing statistics from the

Judicial Branch’s biennial reports for the fiscal years of 2004–2005, 2005–

2006, 2006–2007 and 2007–2008, demonstrating that approximately 95 percent of criminal cases are resolved by plea bargaining, rather than trial.

State v. Elson, supra, 125 Conn. App. 393 n.7.

The most recent statistics for the fiscal years of 2010–2011 and 2011–2012

indicate that Judge Bishop’s observation retains its currency. See Connecticut Judicial Branch, Biennial Report and Statistics 2010–2012, pp. 50–51

(indicating that 5.1 percent, or 177 out of 3450, of criminal cases were

disposed via trial in 2010–2011 and 4.8 percent, or 164 out of 3386, of criminal

cases were disposed via trial in 2011–2012), available at http://jud.ct.gov/

Publications/BiennialReport2010-12.pdf (last visited April 21, 2014).

39 We acknowledge that there is no indication, in the record or otherwise,

that judicial comments of this ilk are a pervasive or repeated occurrence,

either systemically or on the part of the trial judge in this case, and we

emphatically do not insinuate to the contrary. Thus, our use of supervisory

powers to reverse the sentence in this case is not one intended as a penalty

or ‘‘message,’’ such as that sent in the prosecutorial misconduct cases discussed in footnote 31 of this opinion. We emphasize, however, that we view

the very nature of the trial judge’s comments in this case as implicating

the public’s perception of the fairness of the judicial system, despite their

apparent infrequency.

40 For a more detailed discussion of State v. Kelly, supra, 256 Conn. 79–82,

see part I B of this opinion.

41 See, e.g., State v. Santiago, 305 Conn. 101, 164, 49 A.3d 566 (2012) (for

due process purposes, ‘‘determination of whether a confession is voluntary

must be based on a consideration of the totality of circumstances surrounding it . . . including both the characteristics of the accused and the

details of the interrogation’’ [internal quotation marks omitted]); State v.

Marquez, supra, 291 Conn. 161 (‘‘any analysis of unnecessary suggestiveness

must be conducted in light of the totality of the circumstances and must

focus specifically on the presentation of the photographic array itself as

well as the behavior of law enforcement personnel to determine if the

procedure was designed or administered in such a way as to suggest to

the witness that a particular photograph represents the individual under

suspicion’’); see also State v. D’Antonio, supra, 274 Conn. 693 n.22 (concluding that trial court’s failure to follow rule set forth in State v. Niblack, 220

Conn. 270, 280, 596 A.2d 407 [1991], precluding judge who participated in

plea bargaining from presiding at trial and sentencing is not due process

violation that ‘‘require[s] per se reversal, but rather is protected by appellate

review of the record for actual indications that the appearance of impartiality

has been shattered’’); see also State v. D’Antonio, supra, 680, 691–92 (violation of prophylactic Niblack rule, which ‘‘established a clear and bright line

rule standing forthe proposition that it is improperfor a trial judge to preside

over a defendant’s trial after having participated actively in unsuccessful plea

negotiations in the case’’ is not by itself plain error ‘‘requir[ing] reversal

when the record demonstrates that the defendant otherwise has received

a fair trial and sentencing before an impartial court, and that the core danger

of judicial vindictiveness has not been realized’’).

42 In his concurring opinion, Judge Robinson relied on our decision in

State v. Chambers, 296 Conn. 397, 413–14, 994 A.2d 1248 (2010), in support

of his conclusion that, in the absence of an articulation by the trial judge,

the record was inadequate to sustain the Appellate Court’s invocation of

its supervisory powers. State v. Elson, supra, 125 Conn. App. 375–77. Chambers is, however, inapposite. In that case, we deemed the record inadequate

to determine, under either Golding or our supervisory authority, whether

an meeting in chambers between the court, the prosecutor and defense

counsel was a critical stage of the proceeding at which the defendant had

a constitutional right to be present. State v. Chambers, supra, 410–11. We
noted the fact-intensive nature of that particular inquiry and concluded that,

in the absence of an articulation or rectification, the record was inadequate

because the only evidence concerning ‘‘what transpired in chambers consist[ed] of two passing references by [the trial court] indicating merely that

there had been such a meeting.’’ Id., 413. This case is readily distinguishable

from Chambers because the record in the present case contains a transcript

of the sentencing proceeding that details exactly what happened in the

courtroom while, in essence, the record in Chambers contained no information regarding what had transpired in the judge’s chambers outside the

presence of the defendant.

43 We acknowledge that this does happen on rare occasion. See State v.

Kelly, supra, 256 Conn. 82 (‘‘I’m the kind of a judge where you get a fair

trial . . . [but] [i]f I find that after the trial that you didn’t have a defense

at all, you’re going to get the maximum, because you’re playing games with

me’’ [internal quotation marks omitted]), quoting United States v. Cruz, 977

F.2d 732, 733 (2d Cir. 1992); United States v. Hutchings, 757 F.2d 11, 13

(2d Cir. 1985) (The judge stated at the sentencing that the trial was ‘‘a ‘total

waste of public funds and resources . . . there was no defense in this case.

[The defendant] was clearly and unquestionably guilty, and there should

have been no trial.’ ’’); People v. Mosko, 190 Mich. App. 204, 210, 475 N.W.2d

866 (1991) (‘‘ ‘I am very concerned about this case . . . because it was a

case that went to trial . . . [a]nd to get up on the stand and . . . [be]

sanctimonious and you’re self-righteous and you’re guilty, that seems to me

to be something that is—that is beyond [decent]’ ’’).

44 Like Judge Bishop, we do not discount the importance of victim impact

evidence in the sentencing determination. See State v. Elson, supra, 125

Conn. App. 397 and 397–98 n.11; see also State v. Coleman, supra, 242

Conn. 546–48 (describing trial testimony and information in presentence

investigation report about traumatic effects of sexual assault on victim).

Nevertheless, the exercise of a defendant’s right to a trial, which includes

its concomitant effect on victims or witnesses from the act of having to

testify, remains an improper factor to consider in sentencing. See AbdulMaleek v. State, 426 Md. 59, 73–74, 43 A.3d 383 (2012) (remanding for

resentencing because trial court’s remarks referring to victim having to

testify twice could lead to inference that defendant was being penalized for

exercising his right to trial de novo in higher trial court); People v. Jackson,

474 Mich. 996, 707 N.W.2d 597 (2006) (remanding case for resentencing

because although ‘‘crime was extremely brutal . . . the sentencing judge

stated that she did not believe that [the] defendant was entitled to the same

sentence as his accomplices, ‘who were able to step up to the plate and

say what they did and to admit their guilt,’ while [the] defendant subjected

the victims to ‘having to testify’ ’’); State v. Ambriez, Docket No. L-03-105137,

2004 WL 2334176, * 4–5 (Ohio App. September 24, 2004) (concluding that

trial court improperly augmented sentence on basis of trial election because

trial court stated that ‘‘ ‘there’s no genuine remorse, because we had to

proceed to trial; and obviously with your statement there’s no genuine

remorse, all of which makes recidivism more likely, thus would tip the

scales on the side of [a] prison term’ ’’); State v. Reid, 140 Or. App. 293,

299, 915 P.2d 453 (1996) (remanding for resentencing because, although

‘‘defendant’s empathy—orlack thereof—is appropriate to a court’s consideration of what sentence should be imposed,’’ trial court’s comments about

putting daughter through trauma of trial resulted in ‘‘the exercise of his

constitutional right to a trial [being] woven into the court’s departure findings’’); cf. State v. Holmes, Docket No. L-08-1034, 2009 WL 4270260, *3, 5

(Ohio App. November 20, 2009) (concluding that trial court’s comments

criticizing defendant for ‘‘ ‘violat[ing] [the victim] a second time by forcing

us to go to trial in this case’ ’’ were improper but could not have affected

sentence because ‘‘trial court made its comments after sentencing, without

indicating whether its considerations were tied to the sentence’’ [emphasis

omitted]); but see State v. Farnham, 479 A.2d 887, 892 (Me. 1984)

(‘‘[a]lthough [the] defendant had an absolute right to a trial . . . he cannot

escape the fact that his exercise of those rights are probative of his attitude

towards the victim and society’’); State v. Tiernan, 645 A.2d 482, 487 (R.I.

1994)(rejecting due process challenge to trial court’s observation at sentencing that defendant had ‘‘ ‘required [the victim] to testify’ by exercising his

right to stand trial’’).

45 Like Judge Bishop, we are not ‘‘insensitive to the trauma realized by

victims who must often relive the experiences of criminal acts inflicted

upon them,’’ and recognize that to ‘‘give consideration to a defendant who

pleads guilty and thus saves the victim from having to testify is a hallmark

of our plea bargaining system.’’ State v. Elson, supra, 125 Conn. App. 397

n.11. To this end, the exercise of our supervisory authority in this appeal
is calculated to minimize the need for new sentencing proceedings, with a

retraumatizing effect, that might result from inherently subjective appellate

evaluations under State v. Kelly, supra, 256 Conn. 79–80, of trial courts’

comments referring to a defendants’ election to stand trial. The bright line

rule that we articulate herein better illustrates the outer bounds of what

trial judges permissibly may say in sentencing a defendant without raising

due process concerns.

46 In determining that resentencing is appropriate under our supervisory

powers, we find instructive the balancing of interests utilized in determining

whether to order a new trial under our supervisory powers as a remedy for

prosecutorial impropriety; see footnote 31 of this opinion; namely, ‘‘the

extent of prejudice to the defendant; the emotional trauma to the victims

or others likely to result from reliving their experiences at a new trial; the

practical problems of memory loss and unavailability of witnesses after

much time has elapsed; and the availability of other sanctions for such

misconduct.’’ (Internal quotation marks omitted.) State v. Diaz, 302 Conn.

93, 107 n.11, 25 A.3d 594 (2011), quoting State v. James G., 268 Conn. 382,

423, 844 A.2d 810 (2004).

Under these factors, and particularly with respect to the victim in this

case, as the defendant points out, our remedy in this certified appeal will

not require her to relive the trauma created by the defendant’s actions. The

victim’s previous statement is on record and may be considered by the

trial court at the defendant’s resentencing, should she desire not to return

to court.