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WILTON CARRAWAY v. COMMISSIONER OF

CORRECTION

(SC 19347)

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

Robinson, Js.

Argued May 20—officially released July 21, 2015

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Brian Preleski, state’s attorney, and

Jo Anne Sulik, supervisory assistant state’s attorney,

for the appellant (respondent).

Dante R. Gallucci, assigned counsel, for the appellee (petitioner).
Opinion

ROGERS, C. J. This certified appeal raises the question of whether a party is aggrieved and therefore has

standing to appeal from a decision that the party is

seeking to have affirmed. The Appellate Court reversed

the habeas court’s denial of relief to the petitioner,

Wilton Carraway, after the Appellate Court held that

the habeas court had improperly applied the prejudice

standard enunciated in Copas v. Commissioner of Correction, 234 Conn. 139, 151, 157, 662 A.2d 178 (1995).

Carraway v. Commissioner of Correction, 144 Conn.

App. 461, 470–71, 72 A.3d 426 (2013). The respondent,

the Commissioner of Correction, claims on appeal that

the judgment of the Appellate Court should be affirmed

because Copas sets forth an improper standard for

determining prejudice. Because we conclude that the

respondent is not aggrieved by the judgment of the

Appellate Court and because Copas has already been

overruled sub silentio in subsequent decisions by this

court, we dismiss the appeal for lack of subject matter jurisdiction.

The following facts and procedural background are

relevant to the respondent’s claim on appeal. On March

11, 2008, the petitioner pleaded nolo contendere to a

charge of assault in the first degree.1 Pursuant to a plea

agreement, on May 8, 2008, the trial court sentenced the

petitioner to fifteen years of incarceration, execution

suspended after seven years, and five years of probation.

On June 3, 2011, the petitioner filed an amended

habeas petition alleging that his trial counsel had ‘‘failed

to provide sufficient information to enable [him] to

make an informed decision about whether to plead

nolo contendere or proceed to trial.’’(Internal quotation

marks omitted.) Id., 467. After a trial, the habeas court

rendered judgment denying the petition. Id., 470. In

doing so, the habeas court addressed only whether the

petitioner was prejudiced by counsel’s alleged errors.2

Id., 469. In determining that the petitioner had not been

prejudiced by entering a nolo plea, the court relied on

the prejudice standard enunciated in Copas v. Commissioner of Correction, supra, 234 Conn. 151. Carraway

v. Commissioner of Correction, supra, 144 Conn. App.

469. In Copas, this court relied upon Hill v. Lockhart,

474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), a case

in which the United States Supreme Court discussed a

modified prejudice standard first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984), for demonstrating that ineffective

assistance of counsel tainted a guilty plea. The court

interpreted Hill to require a petitioner to demonstrate

both a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would

have insisted on going to trial, and ‘‘that evidence that

had been undiscovered orthe defenses he claims should
have been introduced were likely to have been successful at trial.’’ Copas v. Commissioner of Correction,

supra, 151. Consistent with the standard stated in

Copas, the habeas court found that the petitioner failed

to satisfy the prejudice prong because the petitioner

failed to demonstrate that he would have had a more

favorable outcome if he had gone to trial. Carraway v.

Commissioner of Correction, supra, 469–70.

Thereafter, the petitioner appealed to the Appellate

Court, claiming only that the habeas court had improperly applied the Copas standard to the facts, and not

that the habeas court had applied the wrong prejudice

standard. Id., 470. The respondent asserted that the

petitioner’s claim failed under the Copas standard. The

respondent also noted, however, in his appellate brief

and at oral argument, that in a case that was pending

before this court,3 his position was that the Copas standard for prejudice is incorrect. Id. Due to this representation, the Appellate Court reasoned that it could not

‘‘avoid the question of whether the [habeas] court

applied the correct prejudice standard.’’ Id., 470–71.

The Appellate Court concluded that the Copas standard that the habeas court applied was inconsistent

with federal law concerning the prejudice prong as

applied in Hill v. Lockhart, supra, 474 U.S. 52.Carraway

v. Commissioner of Correction, supra, 144 Conn. App.

471 and n.9. Specifically, the Appellate Court stated

that ‘‘[t]he bottom line issue that must be resolved is

whether, but for counsel’s allegedly deficient performance, the petitioner would have insisted on a trial’’;

id., 476; and not that the outcome was likely to have

been more successful at trial. See id., 469. The Appellate

Court recognized that the habeas court had applied the

Copas standard and that the Appellate Court was bound

by this court’s precedent; nevertheless, on the basis of

the clear language of Hill v. Lockhart, supra, 52, and

interpretations of the Hill standard by various federal

Courts of Appeals,4

the Appellate Court decided to follow the United States Supreme Court. Carraway v.

Commissioner of Correction, supra, 471 n.9. On March

10, 2015, the Appellate Court sua sponte issued a

replacement page adding two sentences and three citations to footnote 9 of its July 30, 2013 Carraway opinion.5 The Appellate Court’s addition modified its

reasoning to reflect that its decision, although inconsistent with Copas, was also consistent with this court’s

more recent decisions enunciating the proper standard

under Hill, which required only that a petitioner demonstrate that he would have insisted on going to trial.6

Id.,

citing Washington v. Commissioner of Correction, 287

Conn. 792, 833, 950 A.2d 1220 (2008), Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d

789 (2008), and Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). Because

the Appellate Court concluded that the habeas court

applied an incorrect legal standard in assessing the
petitioner’s claims, it reversed the judgment of the

habeas court and remanded the case for further proceedings consistent with its opinion. Carraway v. Commissioner of Correction, supra, 477. This certified

appeal followed.7

On appeal, the respondent claims that the Appellate

Court improperly determined that the habeas court

applied an incorrect legal standard, because the habeas

court was required to follow Copas, but also asks that

we affirm the judgment of the Appellate Court and

clarify Copas to make it consistent with federal law

under Hill v. Lockhart, supra, 474 U.S. 52. In the alternative, the respondent requests that we remand this issue

to the Appellate Court to apply the Copas standard.

Because both parties are arguing that the Appellate

Court’s judgment should be affirmed,8 we must first

consider if the respondent has been aggrieved by that

judgment, thereby giving him standing to pursue an

appeal.9 Aggrievement is essential to jurisdiction and

thus must be resolved as a threshold matter. State v.

Long, 268 Conn. 508, 531–32, 847 A.2d 862, cert. denied,

543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004);

Johnson v. Commissioner of Correction, 258 Conn. 804,

813, 786 A.2d 1091 (2002). To determine whether the

parties have been classically aggrieved, we apply a well

established two-pronged test. First, the allegedly

aggrieved party must have a specific personal and legal

interest in the subject matter of the decision. Seymour

v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002).

Second, this specific personal and legal interest must

have been specially and injuriously affected by the decision. Id.; see also State v. T.D., 286 Conn. 353, 358, 944

A.2d 288 (2008).

Even if we were to assume that the respondent does

have a specific personal and legal interest in the subject

matter of the decision, he cannot show that this interest

has been specially and injuriously affected by the Appellate Court’s decision. Although the respondent claims

that the Appellate Court improperly determined that

the habeas court applied an incorrect legal standard

because of the respondent’s position that the Appellate

Court was bound by and should have applied the legal

standard set forth in Copas, the respondent seeks to

have the judgment of the Appellate Court affirmed.

Essentially, the respondent agrees with the reasoning

and outcome of the Appellate Court’s decision, if not

the route the Appellate Court took to reach that decision. Such a disagreement is not enough to show an

injury to the respondent’s interest. At oral argument

before this court, neither party could provide a reason,

other than the desire to clarify or modify Copas, for

this court to provide relief or even what relief we could

grant.10 As the respondent cannot show that his

assumed interest has been specially and injuriously

affected by the Appellate Court’s decision, the respondent is not aggrieved. We therefore dismiss the appeal
for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other justices concurred.

1 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when: (1) With intent to cause serious

physical injury to another person, he causes such injury to such person or

to a third person by means of a deadly weapon or a dangerous instrument . . . .’’

2 To prevail on ineffective assistance of counsel claims, a petitioner must

satisfy the two-pronged test articulated in Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Washington v.

Commissioner of Correction, 287 Conn. 792, 832, 950 A.2d 1220 (2008).

Under Strickland, a petitioner must show, first, that counsel’s performance

fell below the standard of reasonably effective assistance; Strickland v.

Washington, supra, 687–88; and, second, that counsel’s ineffectiveness at

trial prejudiced the defense. Id., 694; see, e.g., Nardini v. Manson, 207 Conn.

118, 124, 540 A.2d 69 (1988). ‘‘A court deciding an ineffective assistance of

counsel claim need not address the question of counsel’s performance, if

it is easier to dispose of the claim on the ground of insufficient prejudice.’’

Nardini v. Manson, supra, 124.

3 Brown v. Commissioner of Correction, Docket No. SC 18859. On June

23, 2014, the respondent moved to dismiss Brown for lack of subject matter

jurisdiction because the appeal was rendered moot by the petitioner’s death.

On July 10, 2014, this court granted the motion to dismiss prior to any

scheduled oral argument.

4 Subsequent federal Circuit Court jurisprudence makes clear that Hill

only requires a petitioner to demonstrate a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial. See, e.g., United States v. Orocio, 645 F.3d 630,

643 (3d Cir. 2011) (‘‘The Supreme Court, however, requires only that a

defendant could have rationally gone to trial in the first place, and it has

never required an affirmative demonstration of likely acquittal at such a

trial as the sine qua non of prejudice. [Hill v. Lockhart, supra, 474 U.S. 59.]

To the extent that we have previously interpreted Hill to require such a

showing, the Supreme Court’s intervening decision in Padilla [v. Kentucky,

559 U.S. 356, 371–73, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)] . . . has

made it clear that that is not appropriate.’’), abrogated in part on other

grounds by Chaidez v. United States, U.S. , 133 S. Ct. 1103, 1107,

185 L. Ed. 2d 149 (2013); see also Miller v. Champion, 262 F.3d 1066, 1074

(10th Cir. 2001) (‘‘[a]ccordingly, in light of the Supreme Court’s opinion in

[Hill] . . . and the overwhelming weight of authority among the other federal circuits, we hold [that] the [D]istrict [C]ourt erred by requiring [the

petitioner] to prove a reasonable probability existed not only that he would

have insisted on trial but for his counsel’s mistakes, but also that there was

a likelihood that he would have prevailed at trial’’), cert. denied, 534 U.S.

1140, 122 S. Ct. 1092, 151 L. Ed. 2d 990 (2002).

5 See Carraway v. Commissioner of Correction, supra, 144 Conn. App.

471 n.9 (‘‘We also note that our Supreme Court has enunciated the standard

set forth in Hill in several cases subsequent to Copas. . . . Though inconsistent with Copas, then, our decision today is consistent with subsequent

decisions of our Supreme Court.’’ [Citations omitted.]). The Appellate Court

later relied on this language in its March 17, 2015 decision in Yerinides v.

Commissioner of Correction, 156 Conn. App. 71, 78, 111 A.3d 961 (2015).

6 We note that in our most recent decision addressing the Hill prejudice

standard, we specifically disapproved of the petitioner’s characterization of

the prejudice prong as ‘‘a reasonable probability that the result of the trial

court proceedings would have been different’’ and instead stated that ‘‘[i]n

the context of a guilty plea . . . to succeed on the prejudice prong the

petitioner must demonstrate that, but for counsel’s alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.’’ Washington v. Commissioner of Correction, 287 Conn.

792, 835, 950 A.2d 1220 (2008); see also Crawford v. Commissioner of

Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008) (‘‘Under the test in Hill

[v. Lockhart, supra, 474 U.S. 59], in which the United States Supreme Court

modified the prejudice prong of the Strickland test for claims of ineffective

assistance when the conviction resulted from a guilty plea, the evidence

must demonstrate thatthere is a reasonable probability that, butfor counsel’s

errors,the [petitioner] would not have pleaded guilty and would have insisted

on going to trial.’’ [Internal quotation marks omitted.]) These cases sub
silentio overruled Copas.

7 This court granted the petition for certification to appeal, limited to

the following issue: ‘‘Did the Appellate Court properly determine that the

[habeas] court applied the wrong legal standard in assessing the petitioner’s

claims?’’ Carraway v. Commmisioner of Correction, 312 Conn. 925, 925,

95 A.3d 521 (2014).

8 The respondent requests that we conclude that the Appellate Court

improperly determined that the habeas court applied an incorrect legal

standard, but nevertheless affirm the Appellate Court’s decision and remand

the case to the habeas court for it to evaluate the petitioner’s claims under

the correct prejudice standard. The petitioner requests that the judgment

of the Appellate Court be affirmed and the case be remanded to the Appellate

Court with direction to remand the case to the habeas court for further

proceedings in accordance with the opinion of the Appellate Court.

9 We raise the issue of subject matter jurisdiction sua sponte. ‘‘The subject

matter jurisdiction requirement may not be waived by any party, and also

may be raised by a party, or by the court sua sponte, at any stage of the

proceedings, including on appeal.’’ Peters v. Dept. of Social Services, 273

Conn. 434, 441, 870 A.2d 448 (2005).

10 We recognize that the mootness doctrine is implicated in this appeal

and likely provides an independent basis for our subject matter jurisdiction

determination. Because we decide the case on the basis of aggrievement,

however, we need not reach the mootness issue.