State v. Dixon (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. DIXON CONCURRENCE BISHOP, J., concurring. It is well established that the subject matter jurisdiction of the Appellate Court. . . . is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court. (Emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). In a criminal proceeding, there is no final judgment until the imposition of a sentence. (Internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617, 954 A.2d 806 (2008).1 In this case, it is clear there is a final judgment; the defendant, Robert Dixon, has been convicted by plea and sentenced. Although the defendant nominally appeals from the judgment, he seeks no relief from it. He asks this court to take no action with respect to the judgment of conviction or the sentence imposed, as both were the fruits of plea negotiations. He does not claim that he has been wrongfully convicted or illegally sentenced, nor does he ask that his conviction be reversed or that his sentence be vacated or modified. In sum, he claims no aggrievement from either his conviction or the sentence he received. Rather, the defendant complains of a ruling made by the court regarding portions of his presentence investigation report. On appeal, he seeks an order redacting certain portions of that report that he believes are inaccurate and potentially harmful to him. Although [t]he sole purpose [of a presentence investigation report] is to enable the court . . . to impose an appropriate penalty; (internal quotation marks omitted) State v. Patterson, 236 Conn. 561, 574, 674 A.2d 416 (1996); the defendant does not claim that the court improperly considered the report in imposing his sentence. Thus, the defendant s claim regarding the contents of the presentence investigation report have no connection to the terms of the judgment. Normally, a party who prevails in the trial court is not aggrieved. Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002). In a sense, the defendant in this instance may be said to have prevailed in the trial court because he was convicted by his own plea and received an agreed sentence. On that basis, he cannot be said to be aggrieved by the judgment. There is, however, a narrow band of cases in which a prevailing party may nevertheless be aggrieved by a decision of the court entered during the course of proceedings leading to a judgment. In such cases, one may be able to demonstrate that such an order of the court is likely to have an adverse effect on his legal interests in a future proceeding. Thus, for example, it has been stated that a prevailing party may appeal a collateral adverse ruling that can serve as a basis for the bar of res judicata, collateral estoppel, or law of the case in the same or other litigation. 4 C.J.S. 236, Appeal and Error § 252 (2007). To be aggrieved by such a decision, however, an appellant must demonstrate that the attendant deprivation of his right is likely and not merely speculative, concrete and particularized . . . and . . . actual or imminent, not conjectural or hypothetical . . . . (Citations omitted; internal quotation marks omitted.) Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).2 In this instance, the defendant makes no such particularized claims. Rather, he claims that he is harmed by the libelous innuendo contained in the report because it may, at some uncertain point in the future, impact his conditions of incarceration or his eligibility for parole or probation. The defendant s claim, however, is contingent on the occurrence of some event that has not, and may not, happen. Therefore, the consideration of the issue he raises on appeal would require us to engage in speculation and conjecture regarding events yet to occur. Under these circumstances, because the claims made by the defendant are inadequate to demonstrate his aggrievement, it is likely this court has no subject matter jurisdiction over this appeal. Accordingly, rather than affirming the judgment of the trial court, I would invite the parties to submit supplemental briefs to this court on the question of whether this matter should be dismissed for lack of subject matter jurisdiction.3 1 Pursuant to General Statutes § 54-95, appellate criminal jurisdiction lies when there is an appeal from a final judgment. See State v. Piorkowski, 236 Conn. 388, 401, 672 A.2d 921 (1996). Generally, to have standing, one who appeals from a final judgment must claim to be aggrieved by it. See State v. T.D., 286 Conn. 353, 944 A.2d 288 (2008). In this instance, the defendant makes no such claim; rather, he claims to be aggrieved by a pretrial decision of the court not connected to its judgment. 2 For example, in the matter of In re Allison G., 276 Conn. 146, 883 A.2d 1226 (2005), our Supreme Court permitted an appeal by the department of children and families (department) even though the trial court had found in favor of the department on one count of a two count petition alleging, in one count that the child was uncared for and, in another count, that the child was neglected. In adjudicating the matter, the trial court granted the relief sought by the department, the commitment of the child to the department, and found in favor of it on the uncared for count but dismissed the neglect count. Even though the department prevailed at trial, the Supreme Court, on review, found that the department was aggrieved by the dismissal of the neglect count on the ground that an adjudication of that count likely would affect the course of future proceedings between the department and the parents of the child. 3 In reaching this view, I offer no opinion on what other legal and or equitable avenues of redress may be available to the defendant administratively or in the trial court concerning the contents of the subject presentence investigation report.
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