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STATE OF CONNECTICUT v. JOSE V.*

(AC 35836)

DiPentima, C. J., and Alvord and Pellegrino, Js.

Argued February 10—officially released May 26, 2015

(Appeal from Superior Court, judicial district of

Hartford, geographical area number twelve, Fuger, J.)

Glenn W. Falk, assigned counsel, for the appellant

(defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Adam B. Scott, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Jose V., appeals from the

judgment of conviction, rendered after a jury trial, of

sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to

a child in violation of General Statutes § 53-21 (a) (2).

On appeal, the defendant claims that the trial court

improperly considered his handwritten letter, which

included incriminating remarks,1 when it imposed his

sentence. Specifically, the defendant claims that the

court’s consideration of the letter(1) violated his constitutional privilege against self-incrimination and

deprived him of his right to the effective assistance of

counsel, and (2) was improper because the contents

were protected by the attorney-client privilege. The

defendantrequests this court to exercise its supervisory

authority to remand the matter to the trial court for

resentencing by another judge without consideration

of his letter. We disagree with all of the defendant’s

claims and, accordingly, affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. The defendant is a native of Ecuador. He was

married to the grandmother of the victim and lived in

New York, but he visited the victim and her family in

Connecticut on weekends. In October, 2009, when the

victim was four years old, the defendant inappropriately

touched her during one of his visits. The victim disclosed the incident to her mother, who contacted the

Manchester Police Department. The defendant provided a statement to Detective A.J. DeJulius, in which

he denied making inappropriate contact with the victim

and explained that she may have mistakenly thought

he had done so while he was tickling her.

The defendant was arrested and charged with the

offenses for which he was convicted. At trial, the defendant testified on his own behalf and denied ever touching the victim in her vaginal area. He further testified

that he occasionally tickled his daughters and the victim, but that he never touched the victim inappropriately. After the jury returned a verdict of guilty as to

both charges, the court scheduled a date for sentencing.

During the period of time between the verdict and the

sentencing, defense counsel provided a number of letters to the court and to the state’s attorney on behalf

of the defendant. One of the letters, which had been

provided only to the state’s attorney, was handwritten

in Spanish by the defendant.2

At the beginning of the sentencing proceeding,

defense counsel stated that he had provided the court,

through the clerk’s office, with several letters in English

that were either handwritten or typed. He further stated

that he had received two additional letters that were

handwritten in Spanish. Defense counsel explained
that, although he had given copies of those letters to

the state’s attorney, he had removed the letters in Spanish from the submission to the court because they had

not been translated into English, and he did not want

‘‘to burden’’ the court with ‘‘something that was incomprehensible.’’

Defense counsel then represented to the court that he

had just that day discerned that one of the handwritten

letters in Spanish had been signed by the defendant.

He reported that when he made that discovery, he asked

the interpreter to translate the contents of the letter,

and that he now was making the following request of

the court: ‘‘[The defendant] wishes not to present that

letter to Your Honor, and instead to speak to the best

of his ability from his mind and his heart to Your Honor

today . . . .’’ The court interrupted defense counsel,

stating that it generally gave the state’s attorney the

initial opportunity to make a presentation with respect

to sentencing.

The state’s attorney then proceeded to tell the court

that he was ‘‘shocked’’ by the defendant’s letter, which

he earlier had translated by a different interpreter as

soon as he received it. He read certain portions of the

letter into the record3 and concluded with the following

remarks: ‘‘The defendant took this case to trial, forced

this child of tender years to testify about a horrific act

that was perpetrated upon her, subjected the child to

cross-examination when all the while he knew what

the lie detector knew. He . . . knew what [the mother]

knew and, essentially and most importantly, he knew

what [the victim] knew. . . . He now admits that his

denials on the stand were perjury. . . . He admits that

he’s a liar. And, mainly, Your Honor, as [the victim]

testified, he admits that he’s a child molester and a sex

offender.’’ The state’s attorney requested that the court

sentence the defendant to twenty-five years incarceration, execution suspended after twelve years, and ten

years probation.4

In response to the remarks of the state’s attorney,

defense counsel stated: ‘‘I want to say for the record

sake that I gave the letterto [the state’s attorney] yesterday, fair and square. There’s no claim otherwise. I gave

him the letter. And I’ll also say for the record sake that

I didn’t know what the letter said. And as a matter of

fact, I didn’t even know who the letter was from. And

I believe there is a second handwritten letter in the

packet because my office had put [the] packages

together. And the only reason that those two handwritten Spanish language letters were not included in Your

Honor’s package is that I was embarrassed to give upon

the court letters that had not been translated. I thought

that was an unfair indulgence. Not that I didn’t care

about unfairly and, you know, burdening the state with

these letters; I just didn’t remove them from him.’’5

Defense counsel then told the court that he met with
the defendant after the interpreter translated the contents of the letter, and he asked the defendant if he now

was admitting to the offenses. According to defense

counsel, the defendant looked at him ‘‘quizzically,’’ and

he ‘‘explained to me that the reason he admitted it in

this letter that was intended for Your Honor is that . . .

some of the men in the jail told him that if you don’t

admit what you are convicted of, the judge will give

you a harsher sentence.’’ Defense counsel said that the

defendant ‘‘wrote the letter and accepted responsibility

for something that he still professes he did not do,

because of jailhouse advice that this was the only way

to try and get leniency from the judge. . . . [T]he reason he wrote this letter to you is bad jailhouse advice.

And I’m embarrassed. I’m ashamed that he took jailhouse advice over mine.’’ After offering the court what

he considered to be mitigating factors, defense counsel

requested that the court sentence the defendant to

twenty years incarceration, execution suspended after

the mandatory minimum offive years, and ten years probation.

The defendant’s wife and daughter, in their brief

remarks to the court, asked for leniency on behalf of

the defendant. At that point, the defendant exercised his

right of allocution. After thanking the court for allowing

him to speak ‘‘from the bottom of my heart,’’ the defendant made the following statement: ‘‘Everything that I

wrote in the letter to you, it was not my thoughts and

my ideas, but—a lot of people in jail make comments

and say things. That when you go in front of the judge

and you don’t accept your guilt, then the judge turns

very severe to you—very harsh to you. Because when

the judge sees that you have like an attitude and you

don’t accept guilt, then the judge is very harsh to you.

That was my motivation when I wrote the letter. Not

because I felt in my heart that I was guilty. That’s all,

Your Honor.’’

In imposing the defendant’s sentence, the court made

the following remarks: ‘‘I’m going to start with the letter

that exploded out of the lockup today. The prosecutor

expressed quite righteous indignation, as he had every

right to do. But there are some comments that I do

have to address that the prosecutor I think made and

make it clear where this court is coming from. Mendacity, lying on the part of a defendant, may not and will

not be used to enhance any punishment. While the prosecutor is correct that the victim and her family had to

go through a trial, it is the absolute constitutional right

of any defendant, no matter how strong the evidence

may be arrayed against him or her, to enter a plea of

not guilty and take the case to trial. So the fact that

the victim had to testify and go through a trial [and]

perhaps suffer additional trauma as a result will not be

used to enhance or increase any punishment for the

offenses for which this defendant stands convicted.’’
After a few additional comments, the court returned

to the subject of the defendant’s letter. The court stated:

‘‘And without making any sort of determination as to

whether the letter that was presented to this court is

true or not, what is clear is that you [the defendant]

had no hesitation to lie. Because the letter and your

testimony are at complete odds of each other, either

you lied on the witness stand or you lied in the letter.

So your ability to be honest is in severe doubt here. And

while I cannot and will not use yourlying to enhance the

punishment, I most certainly am free to use it when

assessing the credibility of the things that you have told

this court. And that has had a very negative effect.’’

The court imposed a total effective sentence of twentyfive years incarceration, execution suspended after ten

years, followed by ten years probation with special conditions. This appeal followed.

I

A

The defendant’s first claim is that the court’s consideration of his letter during the sentencing proceeding

violated his constitutional privilege against self-incrimination. He argues that the court was precluded from

considering the letter’s contents because defense counsel, in his initial remarks, told the court that ‘‘[the defendant] wishes not to present that letter to Your Honor,

and instead to speak to the best of his ability from his

mind and his heart . . . .’’ The defendant claims that

his counsel’s statement ‘‘implicit[ly]’’ invoked his fifth

amendment privilege against self-incrimination. We

conclude that the defendant’s fifth amendment claim

was not preserved by this statement to the court, particularly in light of defense counsel’s explanation that he

had removed the letters in Spanish from the submission

to the court solely because he did not want ‘‘to burden’’

the court with untranslated letters.

Alternatively, the defendant requests review of this

unpreserved claim pursuant to State v. Golding, 213

Conn. 233, 239–40, 567A.2d 823 (1989).6 The state argues

that the record is not sufficient in this case to review

the defendant’s claimed error because it is ‘‘devoid of

any factual findings relating to any potential fifth

amendment violation.’’ The state also contends that his

alleged constitutional claim is actually an evidentiary

claim masquerading as a violation of his privilege

against self-incrimination. In support, the state argues

that defense counsel expressly stated that he earlier

had given the letter to the state’s attorney and did not

later seek to retrieve it. Moreover, defense counsel did

not object to the use of the letter by the state’s attorney

at any time during the sentencing proceeding.

Instead offocusing on the first two prongs of Golding,

we direct our attention to the third prong because it is

evident that no violation of the constitutional privilege
against self-incrimination has occurred. ‘‘It is not necessary to review all of the prongs of Golding as ‘[i]n the

absence of any one of these conditions, the defendant’s

claim will fail. The appellate tribunal is free, therefore,

to respond to the defendant’s claim by focusing on

whichever condition is most relevant in the particular

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

State v. Smart, 37 Conn. App. 360, 374–75, 656 A.2d

677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

The fifth amendmentto the United States constitution

provides in relevant part: ‘‘No person . . . shall be

compelled in any criminal case to be a witness against

himself . . . .’’ (Emphasis added.) U.S. Const., amend.

V. ‘‘The fifth amendment privilege against self-incrimination is made applicable to state prosecutions through

the due process clause of the fourteenth amendment

to the United States constitution.’’ State v. Moore, 293

Conn. 781, 784 n.2, 981 A.2d 1030 (2009), cert. denied,

560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010).

The privilege against self-incrimination applies during

sentencing proceedings, even in noncapital cases.

Mitchell v. United States, 526 U.S. 314, 325–27, 119 S.

Ct. 1307, 143 L. Ed. 2d 424 (1999).

In this case, nothing in the record suggests that the

defendant was compelled by state action to create the

letter or that he was compelled to submit the letter to

the state’s attorney or the trial court. There is no claim

that the incriminating remarks were coerced or otherwise involuntary, nor could the record support such a

claim.7 To the contrary, both defense counsel and the

defendant explained that the defendant wrote the letter

in the belief that the court would be more lenient in

its sentencing if he admitted that he committed the

offenses of which he was convicted. He relied on jailhouse advice that he would receive a lesser sentence

if he expressed remorse and admitted responsibility for

the offenses. Under these circumstances, the defendant

cannot establish a clear constitutional violation that

clearly deprived him of a fair trial, and thus his claim

fails under the third prong of Golding.

B

The defendant additionally claims that the court’s

consideration of his letter during the sentencing proceeding deprived him of his right to the effective assistance of counsel.Again,this alleged constitutional claim

was not preserved, and, therefore, the defendant seeks

review under Golding. Significantly, however, the

defendant provides no analysis or applicable case law

in support of his claim.8It is undisputed that the defendant was represented by counsel throughout the criminal proceeding, including the sentencing procedure on

March 22, 2013.

In connection with this claim, the defendant also

presents the following alternate argument: ‘‘Although
this appeal concerns the waiver of the right to counsel,

this court may also review it as a matter of the ineffective assistance of counsel under the sixth amendment.

Sentencing is a critical stage of a criminal prosecution

during which the defendant is entitled not merely to

counsel in name only, but counsel functioning effectively according to objective reasonable standards.’’

‘‘Almost without exception, we have required that a

claim of ineffective assistance of counsel must be raised

by way of habeas corpus, rather than by direct appeal,

because of the need for a full evidentiary record for

such [a] claim. . . . Absent the evidentiary hearing

available in the collateral action, review in this court

of the ineffective assistance claim is at best difficult

and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often

necessary to evaluate the competency of the defense

and the harmfulness of any incompetency. . . . [O]n

the rare occasions that we have addressed an ineffective

assistance of counsel claim on direct appeal . . . we

have limited ourreview to situations in which the record

of the trial court’s allegedly improper action was adequate for review or the issue presented was a question

of law, not one of fact requiring further evidentiary

development.’’ (Citation omitted; emphasis omitted;

internal quotation marks omitted.) State v. Greene, 274

Conn. 134, 151–52, 874 A.2d 750 (2005), cert. denied,

548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).

In the present case, the defendant claims that ‘‘[t]his

is one of the exceedingly rare cases where this court

may review the effectiveness of counsel in a direct

appeal, because defense counsel admitted on the record

his failure to vet the defendant’s letter before submission. This was not a tactical choice based on the exercise of professional judgment. . . . [T]herefore, the

defendant’s claims may be resolved as a matter of law

upon review of the existing record, without need for

further evidentiary development in a habeas corpus

trial.’’ We disagree.9

Although the record may reflect the actions of

defense counsel during the sentencing proceeding, we

do not know all of the reasons for those actions. At

one point, defense counsel stated that the defendant,

relying on advice from fellow inmates, did not follow

his advice. The record is silent as to the advice that may

have been given by defense counsel that the defendant

chose not to follow. All of the relevant circumstances

are not known. ‘‘Our role . . . is not to guess at possibilities, butto review claims based on a complete factual

record developed by a trial court. Without a hearing in

which the reasons for counsel’s decision may be elicited, any decision of ours . . . would be entirely speculative.’’ (Internal quotation marks omitted.) State v.

Greene, supra, 274 Conn. 152.10 Accordingly, we decline

to review the defendant’s claim that he was deprived
of effective assistance of counsel.

II

The defendant’s next claim is that the court’s consideration of his letter during the sentencing proceeding

was improper because its contents were protected by

the attorney-client privilege. This claim was not raised

at the trial court and therefore is unpreserved. The

defendant requests Golding review. We conclude that

the defendant has failed to establish an adequate factual

record for appellate review, thus leading to the failure of

the defendant’s claim under the first prong of Golding.

The trial court never was presented with the opportunity to make necessary findings of fact and conclusions

of law with respect to any alleged violation of the defendant’s attorney-client privilege. The basic principles of

the attorney-client privilege are undisputed. Not every

communication between client and attorney falls within

the attorney-client privilege. Ullmann v. State, 230

Conn. 698, 713, 647 A.2d 324 (1994). ‘‘[C]ommunications

between client and attorney are privileged when made

in confidence for the purpose of seeking legal advice.

. . . By contrast, statements made in the presence of

a third party are usually not privileged because there

is no reasonable expectation of confidentiality. . . .

The only recognized exceptions to this rule are when

the third party was an interpreter, clerk or agent of the

client’s attorney . . . .’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) State v.

Christian, 267 Conn. 710, 749, 841 A.2d 1158 (2004).

In the present case, there is nothing in the record

that indicates that defense counsel asked the defendant

to prepare his letter for the purposes of obtaining legal

advice. The letter itself is addressed to the court, and

a copy was provided to the state’s attorney by defense

counsel prior to the day of sentencing. After the author

of the letter was determined and the contents of the

letter were translated by an interpreter, the defendant

did not ask the state’s attorney to return the letter nor

did he object to the use of the letter by the state’s

attorney during the sentencing proceeding. There are

no findings by the trial court regarding the purpose for

which the letter was created or whether the defendant

intended the letter to be confidential. Accordingly, we

agree with the state that the record is inadequate for

us to review the defendant’s claim under Golding.

III

The defendant’s final claim is that this court should

exercise its supervisory authority to remand the matter

to the trial court for resentencing by another judge

without consideration of the defendant’s letter. The

defendant argues: ‘‘Even if this court does not find any

violations of constitutional rights or the attorney-client

privilege, the use of the incriminatory letter by both the

prosecutor and the court created a public perception of
unfairness in the proceedings, which should be

redressed through the court’s exercise of its supervisory

authority overthe administration of justice.’’ We decline

the defendant’s request.

‘‘Although [a]ppellate courts possess an inherent

supervisory authority over the administration of justice

. . . [that] authority . . . is not a form of free-floating

justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every

untenable appeal. They are 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. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the

rights of the defendant and the integrity of the judicial

system. Our supervisory powers are invoked only in

the rare circumstance where these traditional protections are inadequate to ensure the fair and just administration of the courts.’’ (Citation omitted; emphasis in

original; internal quotation marks omitted.) State v.

Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009).

In the present case, the court expressly stated that

it was not relying on the contents of the letter to

increase the defendant’s sentence. We have no reason

to doubt the court’s representation, and the defendant

has provided nothing to persuade us to the contrary.

Traditional protections are adequate to safeguard the

rights of the defendant and the integrity of the judicial

system. This is not a situation that merits the extraordinary remedy requested by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 The letter, written in Spanish, contained his admission to the crimes

that he had denied committing when he testified at his criminal trial.

2 The defendant’s native language is Spanish. He speaks and understands

English to some extent. At trial and during the sentencing procedure, he

was assisted by an interpreter.

3 The defendant’s letter, as translated, provides in relevant part: ‘‘Your

Honor, I know it could be difficult for you to believe in an inmate’s remorse.

At this moment, I find myself in a cell remembering all the bad actions that

I committed in the past. I am embarrassed of all of them. But what I am

most remorseful from the bottom of my heart is this one. Not only because

I let my family down because I let down the love that my stepson . . . had

towards me by committing this reproachable act towards his daughter [the

victim] that has always been like a granddaughter to me.’’

4 The maximum sentence that could have been imposed forthe two convictions was twenty-five years incarceration, with five of those years being a

mandatory minimum sentence.

5 At a later point during the sentencing proceeding, defense counsel stated

that he ‘‘suppose[d] some will fault me’’ for having given the defendant’s

letter to the state’s attorney when he did not know who it was from or the

contents of the letter. Defense counsel provided the following explanation

for his action: ‘‘Because I don’t keep secrets from the state’s attorneys. I
don’t play games with evidence.’’

6 Under Golding, ‘‘a defendant can prevail on a claim of constitutional

error not preserved at trial only if all of the following conditions are met:

(1) the record is adequate to review the alleged claim of error; (2) the claim

is of constitutional magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation 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. In the absence of any one of these

conditions, the defendant’s claim will fail.’’ (Emphasis in original.) State v.

Golding, supra, 213 Conn. 239–40.

7 Black’s Law Dictionary defines ‘‘compel’’ as ‘‘[t]o cause or bring about

by force, threats, or overwhelming pressure . . . .’’ Black’s Law Dictionary

(9th Ed. 2009) p. 321.

‘‘Voluntary statements remain a proper element in law enforcement. . . .

Indeed, far from being prohibited by the Constitution, admissions of guilt

by wrongdoers, if not coerced, are inherently desirable. . . . Absent some

officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.’’ (Citation omitted; internal

quotation marks omitted.) Oregon v. Elstad, 470 U.S. 298, 305, 105 S. Ct.

1285, 84 L. Ed. 2d 222 (1985).

8

‘‘We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than

[mere] abstract assertion, is required in order to avoid abandoning an issue

by failure to brief the issue properly.’’ (Internal quotation marks omitted.)

Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007).

9 The defendant relies on State v. Webb, 238 Conn. 389, 680 A.2d 147 (1996),

aff’d after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835,

121 S. Ct. 93, 148 L. Ed. 2d 53 (2000), in support of his argument that his

ineffective assistance of counsel claim can be addressed by this court on

direct appeal. Webb is inapposite. Webb involved an appellate claim that the

trial court was obligated to disqualify the public defenders representing the

defendant at trial. Id., 413. The defendant argued in Webb that his counsel

had a conflict of interest due to the fact that a witness for the state was

employed by the public defender’s office. Id., 414.

In footnote 24 of the opinion, our Supreme Court explained why the

ineffective assistance of counsel claim could be reviewed on direct appeal.

‘‘We have previously held that claims of ineffective assistance of counsel

should be pursued on a petition for a new trial or on a petition for a writ

of habeas corpus rather than on direct appeal. . . . In the present case,

however, the defendant does not claim ineffective assistance due to attorney

incompetence or error. Rather, he claims, based on the undisputed facts in

the record, that, as a matter of law, judicial conduct denied him his sixth

amendment right to counsel. Because the defendant’s claims do not require

further evidentiary development, unlike the usual claims of attorney incompetence, as well as some conflict of interest claims . . . but may be resolved

as a matter of law upon review of the existing record, we will review them

on direct appeal.’’ (Citations omitted.) Id., 414 n.24.

10 Moreover, to prevail on a claim of ineffective assistance of counsel, the

defendant will have to prove both deficient performance and prejudice.

Anderson v. Commissioner of Correction, 313 Conn. 360, 376, 98 A.3d 23

(2014), cert. denied sub nom. Anderson v. Semple, U.S. , S. Ct. ,

L. Ed. 2d (2015). ‘‘To satisfy the prejudice prong, a claimant must

demonstrate that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’’ (Internal quotation marks omitted.) Id. We note that in the present

case, the trial court expressly stated that it was not enhancing the defendant’s

punishment because the defendant had exercised his constitutional right to

take the matter to trial or because the contents of the letter were contrary

to his testimony at trial.