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State v. Jose V.

Appellate Court of Connecticut

May 26, 2015

STATE OF CONNECTICUT
v.
JOSE V.[*]

Argued February 10, 2015.

Page 834

[Copyrighted Material Omitted]

Page 835

Substitute information charging the defendant with the crimes of sexual assault in the fourth degree and risk of injury to a child, brought to the Superior Court in thejudicial district of Hartford, geographical area number twelve, and tried to the jury beforeFuger, J.; verdict and judgment of guilty, from which the defendant appealed to thiscourt.

Affirmed.

SYLLABUS

Convicted of the crimes of sexual assault in the fourth degree and risk of injury to a child, the defendant appealed to this court. He claimed, inter alia, that, during sentencing, the trial court improperly had considered a certain letter handwritten by him in Spanish, which included incriminating remarks. Prior to sentencing, defense counsel had provided two letters to the state's attorney that were handwritten in Spanish, but had removed the letters from the submission to the court because they had not been translated into English. After defense counsel discovered that one of the handwritten letters had been signed by the defendant, an interpreter translated the contents of the letter, and defense counsel represented to the court that the defendant did not want to present that letter to the court. The state's attorney read portions of the letter into the record, and the trial court, in imposing sentence, stated that it would not use the letter to enhance the defendant's punishment, but would use it to assess the credibility of the defendant's representations to the court. On appeal, the defendant sought review of certain of his unpreserved claims of constitutional error, which concerned alleged violations of his rights against self-incrimination and to effective assistance of counsel, pursuant to the test set forth in State v. Golding (213 Conn. 233, 567 A.2d 823).

Held:

1. The defendant could not prevail on his claim that the trial court's consideration of his letter during the sentencing proceeding violated his constitutional privilege against self-incrimination, which was based on his claim that his counsel's statement that the defendant did not want to present the letter to the court implicitly invoked his fifth amendment privilege against self-incrimination: defense counsel's statement to the court was not sufficient to preserve the defendant's fifth amendment claim, especially in light of 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 the untranslated letters; furthermore, the defendant's unpreserved claim failed under Golding because it was evident that no violation of the constitutional privilege against self-incrimination had occurred, as there was nothing in the record to suggest 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 to the trial court, there was no claim that the incriminating remarks were coerced or otherwise involuntary, and 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.

2. This court declined to review the defendant's unpreserved claim that the trial court's consideration of his letter during the sentencing proceeding deprived him of his right to the effective assistance of counsel, the defendant having provided no analysis or applicable case law in support of his claim; this court has required, almost without exception, that claims of ineffective assistance of counsel be raised by way of habeas corpus, rather than by direct appeal, and this case did not present a rare circumstance where the claim of ineffective assistance of counsel could be reviewed on direct appeal, as the record did not reflect all of the reasons for defense counsel's actions, and without a hearing in which the reasons for counsel's decision would be elicited, any decision by this court would be speculative.

3. The defendant failed to establish an adequate factual record for appellate review under Golding of his unpreserved claim that the trial court's consideration of his letter during the sentencing proceeding was improper because its contents were protected by the attorney-client privilege; the trial court was never presented with the opportunity to make necessary findings of fact and conclusions of law with respect to any alleged violation of the attorney-client privilege, there was nothing in the record indicating that defense counsel asked the defendant to prepare his letter for the purposes of obtaining legal advice, the letter itself was addressed to the court, and there were 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.

4. This court declined the defendant's request to 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 trial court expressly stated that it was not relying on the contents of the letter to increase the defendant's sentence, traditional protections were adequate to safeguard the rights of the defendant and the integrity of the judicial system, and, therefore, this case did not present a situation that merited the extraordinary remedy requested by the defendant.

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).

DiPentima, C. J., and Alvord and Pellegrino, Js. ALVORD, J. In this opinion the other judges concurred.

OPINION

Page 836

[157 Conn.App. 395] 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 [157 Conn.App. 396] 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 defendant requests this court to exercise its supervisory authority ...


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