source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Mark Vincent
    (14736)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued January 12—
    decision released March 18, 1994

      Michael C. Courtney, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and David Holzbach, assistant state’s attorney, for the appellee (state).

       March 18,1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Norcott, J.

The dispositive issue in this appeal is whether, under the circumstances of this case, a search warrant application stated probable cause to believe that a crime had been committed. This statement of the dispositive issue belies a complex factual predicate that complicates the resolution of this appeal.

After a jury trial, the defendant, Mark Vincent, was convicted of criminal possession of a revolver in violation of General Statutes (Rev. to 1989) § 53a-217. The revolver was discovered on July 31,1989, by the Wallingford police while executing a search warrant at the home of the defendant’s mother in Bethel, where the defendant resided at that time. The warrant was issued in response to the sudden and suspicious disappearance of the defendant’s twelve year old daughter, Doreen, who has been missing since June, 1988. The warrant, dated July 31,1989, authorized the police to seize medical records, personal papers, clothing, artifacts and photographs of Doreen. Although the gun was not identified in the warrant, the police seized it as contraband because the defendant previously had been convicted of a felony.

Prior to trial, the defendant moved to suppress the revolver, which he claimed had been seized in violation of his rights under both the federal and state constitutions. The trial court denied the defendant’s motion to suppress the evidence, concluding that the search had not been pretextual and that the revolver had been discovered “inadvertently and in plain view.” Following a jury trial, the trial court rendered a judgment of conviction and sentenced the defendant to a period of four years incarceration.

The Appellate Court affirmed the judgment of conviction concluding, inter alia, that probable cause supported the search warrant application and that inadvertence was not required because the evidence seized was contraband. State v. Vincent, 30 Conn. App. 249, 256-60, 620 A.2d 152 (1993). We granted the defendant’s petition for certification. State v. Vincent, 225 Conn. 917, 623 A.2d 1026 (1993). We now affirm the judgment of the Appellate Court.

I

The defendant claims that the search warrant affidavit contained an insufficient factual basis to support a conclusion of probable cause that a crime had been committed, in violation of the fourth amendment to the United States constitution, as made applicable to the states by the due process clause of the fourteenth amendment, and article first, § 7, of the Connecticut constitution. He argues that because of this deficiency, the warrant was invalid and therefore did not give the police authority to be in a position to make the inadvertent discovery of the revolver. We disagree.

When determining whether an affidavit in support of a search warrant presented a substantial factual basis upon which a magistrate could have found probable cause, an appellate court is confined to the “four corners” of the warrant. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). As the Appellate Court properly stated, “[w]e are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause.” State v. Vincent, supra, 30 Conn. App. 252; see Illinois v. Gates, 462 U.S. 213, 235-36, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

The Appellate Court has adequately set forth the allegations that appeared in the warrant affidavit upon which the issuing magistrate’s conclusion of probable cause could have been based. “On June 5, 1988, the defendant moved from Bridgeport to Whirlwind Hill Road in Wallingford with his wife Sharon, her children, and Doreen Vincent, the defendant’s daughter from a previous marriage. Doreen’s mother, Donna Jones, lived in Waterbury. On June 15,1988, at approximately 11:30 p.m., Sharon Vincent returned home from church and was informed by the defendant that Doreen was missing. The defendant said that she had left through the front door. Sharon Vincent later stated that this was impossible because the door was locked with a deadbolt that required a key. Jones then called the defendant’s Wallingford home and was told that Doreen was not at home. Jones attempted to contact Doreen several times on June 17, but the defendant had removed the phone from the wall. On Saturday evening, June 18, Jones arrived at the defendant’s house to pick up Doreen and was then told that she had run away. Jones asked the defendant to alert the police, but he refused. Only at Jones’ insistence did the defendant agree to report Doreen missing. He explained that he did not report her missing right away because he thought she had run away to Jones’ house. Doreen had run away to Jones’ house three times before, but on each occasion Jones had immediately called the defendant. The defendant also told police that he did not report Doreen missing because he thought Jones had come to get her when, in fact, he knew that at the time of the disappearance Jones did not know where he lived. The defendant did not tell his mother or a longtime family friend that Doreen was missing even though he visited those people on June 19, 1988.

“In 1989, when Sharon Vincent moved from the Wallingford residence to Danbury, she gave Doreen’s bedroom furniture and curtains to Jones. She told Jones that the defendant had thrown away Doreen’s bedspread because Doreen had ‘messed it up.’ Sharon refused to turn over to police any of Doreen’s school papers, clothing or personal effects.

“On July 10,1989, search and seizure warrants were issued to seize Doreen’s personal effects from Sharon’s home in Danbury and her brother’s home in Newtown. Property of Doreen’s that the defendant said she had taken with her was recovered pursuant to these warrants.

“The defendant admitted to the police that he had a volatile temper and that on June 15, 1988, he had become angry with Doreen, had hit her and had pushed her into a window, breaking it.

“In November, 1988, the defendant moved into a house he shared with Roseann Pelloni. He left no forwarding address with the police, Sharon Vincent or Jones. His whereabouts were discovered after he was involved in a domestic dispute to which the Walling-ford police were called.

“The defendant admitted to the police that he had taken photographs of Doreen in her underwear in the weeks prior to her disappearance. Pelloni stated that the defendant often took photographs, but that she searched his personal effects and was not able to find any. The defendant claimed that he no longer had any property of Doreen’s when in fact, acting pursuant to a warrant, the police seized from the defendant’s truck a jersey similar to Doreen’s clothing. Jones consented to a search of her house and turned over to police papers, furniture and magazines belonging to Doreen. The police were unable to recover any personal or medical records of Doreen and believed it valuable to their investigation to obtain any personal articles that might contain fingerprints, hair samples, handwriting samples and medical records that might identify her, and personal artifacts that might contain information concerning her disappearance. Sharon Vincent told police that, after Doreen’s disappearance, she found several letters that Doreen had written to her friends but had not mailed. Those letters were not recovered. The defendant had been living at his mother’s house in Bethel for several weeks prior to the issuance of the warrant.” State v. Vincent, supra, 30 Conn. App. 252-54.

The police may lawfully seek and obtain a search warrant for an investigatory search for which it has been established that there is probable cause to believe that the objects sought constitute evidence of a crime and are located at the site to be searched. Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Weinberg, 215 Conn. 231, 237, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987); see also State v. Gold, 180 Conn. 619, 650, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Citations omitted; emphasis in original.) State v. Weinberg, supra, 238. Findings of probable cause do not lend themselves to any uniform formula because “ ‘probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ ” State v. Zarick, 227 Conn. 207, 222, 630 A.2d 565 (1993); see also In re Armand, 454 A.2d 1216, 1218 (R.I. 1983).

In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a “practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Johnson, supra, 219 Conn. 563. We view the information in the affidavit in the light most favorable to upholding the magistrate’s determination of probable cause. State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992). “‘In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge’s] determination.’ State v. Johnson, supra, 565; see In re Keijam T., 221 Conn. 109, 116, 602 A.2d 967 (1992).” State v. Duntz, supra, 216. Furthermore, it is axiomatic that “[a] significantly lower quanta of proof is required to establish probable cause than guilt.” United States v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972); see State v. Lamme, 216 Conn. 172, 178, 579 A.2d 484 (1990).

In the present case, the affidavit provided a factual basis from which the magistrate could reasonably have inferred that Doreen’s sudden disappearance was the result of criminal activity involving the defendant. Although the defendant makes much of the fact that neither the supporting affidavit nor the search warrant names a specific crime to which the objects sought are connected, this lack of specificity is of no great moment. See People v. Casillo, 99 Ill. App. 3d 825, 830, 425 N.E.2d 1379 (1981) (“[i]t does not matter whether the affidavit indicates that the offense is murder, voluntary manslaughter, or reckless homicide, since the facts in the affidavit, not the offense cited by the affiant, are those which the magistrate is required to assess in terms of their sufficiency”) (Heiple, J., concurring). There is no question in this instance that the affidavit provided information that could support different theories of criminal activity, including homicide, sexual abuse, assault and battery, kidnapping or risk of injury to a child. As the defendant conceded at oral argument, this was not just a missing person investigation. The affidavit here contained substantial facts beyond the mere unexplained absence of the girl that supported the magistrate’s finding of probable cause to believe that a crime had been committed.

The record reveals that many of the facts upon which the police based their belief that a crime had been committed came from the words and actions of the defendant himself. The affidavit stated that: (1) the defendant had never made an affirmative attempt to locate his daughter immediately after her disappearance; (2) the defendant had given a number of inconsistent and evasive accounts of Doreen’s disappearance from which it could reasonably have been inferred that he had attempted to conceal the fact of her disappearance; (3) a number of Doreen’s personal effects, which the defendant had told police she had taken with her, had subsequently been recovered by the police, including a jersey that had been found in the defendant’s truck; (4) the defendant had admitted to the police that he had a volatile temper and that on the day prior to Doreen’s disappearance he had hit her and pushed her into a window with enough force to break it; and (5) after searching the homes of both Doreen’s mother and stepmother, the police had been unable to recover some of Doreen’s personal effects and medical records, including a number of letters that she had written but had not mailed just prior to her disappearance. We conclude, on the basis of the foregoing, that there was a substantial factual basis stated in the affidavit upon which the magistrate could have found probable cause to believe that Doreen had disappeared as the result of criminal activity and that evidence of that activity, namely her personal effects and records, could be found at the defendant’s residence.

II

The defendant also claims that there was no probable cause to search his mother’s house because the facts alleged in the affidavit were too removed in time from the actual search. He contends that the thirteen month period between the dates of Doreen’s disappearance and the search rendered stale the allegations regarding the circumstances of the disappearance and the whereabouts of Doreen’s personal effects. We disagree.

It is undisputed that “[t]he determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. State v. Rose, 168 Conn. 623, 631, 362 A.2d 813 (1975). Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable. ‘The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning [service] has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.’ Andresen v. State, 24 Md. App. 128, 172, 331 A.2d 78 (1975), aff’d, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976); see also Sgro v. United States, 287 U.S. 206, 211, 53 S. Ct. 138, 77 L. Ed. 260 (1932); 2 W. LaFave, Search and Seizure (2d Ed. 1987) § 3.7 (a), pp. 74-88.” State v. Johnson, supra, 219 Conn. 566-67.

The police here sought materials, records and artifacts, which were reasonably and logically deemed to be in the possession of the defendant, the missing girl’s father. It does not stretch the imagination to believe that parents keep their children’s photographs, birth certificates and childhood artifacts with them as they move from place to place over extended periods of time. The police in this case were pursuing leads and investigating theories in order to resolve Doreen’s disappearance. One of those theories was that Doreen had fallen victim to foul play. Under these circumstances, when the police were seeking clearly relevant information to help them resolve the child’s sudden and suspicious disappearance, we refuse to adopt an arbitrary cutoff date, expressed either in days, weeks or months, beyond which probable cause ceases to exist. See United States v. Beltempo, 675 F.2d 472, 478 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S. Ct. 2963, 73 L. Ed. 2d 1353 (1982). The defendant’s claim that the passage of time between Doreen’s disappearance and the challenged search rendered the search warrant invalid is without merit.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-217 (a) provides: “A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The revolver was found under articles of clothing inside of a brown paper bag that was tucked between the wooden studs of the adjacent garage.

       Whether the revolver found in the garage of the defendant’s mother was contraband belonging to the defendant is an issue that was of concern at oral argument before this court. Our review of the record reveals that, in making a finding that the search was not pretextual, the trial court heard evidence during the argument on the motion to suppress that prior to the actual search: (1) the police had been aware of the defendant’s felony record; (2) the defendant’s wife, Sharon, had told the police that the defendant “had a gun”; (3) the defendant himself had told Officer Thomas Hanley that he had a gun for “protection”; and (4) almost simultaneously with the discovery of the revolver, the defendant had entered the garage, acknowledged his ownership of the handgun and told the police that they could not take it.
      Notwithstanding our conclusion that the Appellate Court unnecessarily determined that the gun constituted contraband for the purposes of its “plain view” analysis, we hold that the record clearly supports the conclusion that the police had abundant reason to believe that the gun indeed did belong to the defendant at the time of the execution of the search warrant.

       We granted certification limited to the following issues: “1. Under the circumstances of this case, did the Appellate Court properly conclude that the search warrant application stated probable cause to believe that a crime had been committed?” and “2. Was the Appellate Court correct in not deciding (1) whether the seizure of the revolver, the subject of the prosecution, was ‘inadvertent’ under the ‘plain view’ exception to the warrant requirement, and (2) whether the Connecticut constitution requires ‘inadvertence’ under the ‘plain view’ exception even if the United States constitution does not?” State v. Vincent, 225 Conn. 917, 623 A.2d 1026 (1993).
      After examining the record on appeal and after considering the briefs and the arguments of the parties, we have determined that the second certified issue should not be considered because certification on that issue was improvidently granted. In fact, the trial court specifically found that the police discovered the revolver “inadvertently and in plain view.” In its review, the Appellate Court acknowledged and adopted this finding, concluding that it was not “clearly erroneous.” State v. Vincent, supra, 30 Conn. App. 262-63. Thus, the Appellate Court did decide the issue that the second certified question suggests it avoided. Furthermore, because the revolver was found inadvertently, the constitutional concerns that are addressed in part (2) of the second certified question need not be reached.

       The defendant has not provided an independent analysis of his claim under the state constitution. Therefore, we address only his fourth amendment claim. See, e.g., State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993), and the cases cited therein.


author: Per Curiam.

text:
    Whisper Wind Development Corporation v. Planning and Zoning Commission of the town of Middlefield et al.
    (14849)
    Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.
    Argued March 23—
    decision released March 24, 1994

      Lori Welch-Rubin, with whom, on the brief, was Roger Sullivan, for the appellant (plaintiff).

      Thomas F. Byrne, with whom was Steven E. Byrne, for the appellees (defendants).

       March 24,1994, the date that this decision was released as a slip opinion, is thé operative date for all substantive and procedural purposes.

   Per Curiam.

The sole issue in this land use appeal is whether the named defendant, the planning and zoning commission of the town of Middlefield, had the authority to deny the special permit application filed by the plaintiff, Whisper Wind Development Corporation, even though the plaintiffs application complied with the technical requirements of the permit regulations. In Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 630 A.2d 108 (1993), the Appellate Court affirmed the judgment of the trial court dismissing the plaintiff’s appeal. The Appellate Court agreed with the defendant’s contention that, in the case of a special permit, zoning regulations may authorize a planning and zoning commission to deny an application on the basis of enumerated general considerations such as public health, safety and welfare. Id., 519-22. We granted the plaintiff’s petition for certification to appeal this question of regulatory authority.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive majority opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board Of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment of the Appellate Court is affirmed.

       We granted the plaintiffs petition for certification to appeal limited to the following issue: “Was the Appellate Court correct in concluding that the trial court properly determined that the plaintiff's failure to meet the general health, safety and welfare requirements set forth in the town’s zoning regulations provided an adequate basis for the defendant’s denial of a special permit application, even though the plaintiff’s application complied with all of the technical requirements of the regulations applicable to special permits?” Whisper Wind Development Corp. v. Planning & Zoning Commission, 227 Conn. 929, 632 A.2d 706 (1993).


author: Peters, C. J. Borden, J.,

text:
    Floyd Simms v. Warden
    (14681)
    Peters, C. J., Borden, Berdon, Santaniello and Dupont, Js.
    Argued January 4—
    decision released March 18, 1994

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the plaintiff in error.

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Patricia Swords, state’s attorney, and, on the brief, Jacqueline J. Footman, assistant state’s attorney, for the defendant in error.

       March 18, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Peters, C. J.

The dispositive issue in this case is whether the governing statutes give this court subject matter jurisdiction over a writ of error brought to review the denial of a petition for a writ of habeas corpus after the habeas court has denied certification to appeal. The plaintiff in error, Floyd Simms (plaintiff), filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, the warden of the Connecticut correctional institution at Somers (state). In his petition for a writ of habeas corpus, the plaintiff maintained that his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes §§ 53a-59 (a) (3), 53a-59a and 53a-8 and robbery in the second degree pursuant to General Statutes § 53a-135 (a) (3) should be set aside or that he should be resentenced. His three count petition alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel and impairment of his rights to due process under the federal and state constitutions. The habeas court dismissed the count of the petition claiming a constitutional deprivation of due process and, after an evidentiary hearing, denied the counts of the petition claiming ineffective assistance of counsel. The habeas court thereafter denied the plaintiffs petition for certification to appeal. Without attempting to appeal from this denial, the plaintiff filed this writ of error. We conclude that the writ of error must be dismissed.

In this court, the plaintiffs contentions in support of his writ of error mirror the substantive and the procedural arguments that he presented to the habeas court. The state maintains, however, that we lack subject matter jurisdiction to review the merits of the plaintiff s case because, under General Statutes § 52-273, “[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.” We agree with the state.

Once an issue of subject matter jurisdiction has come to our attention, we cannot adjudicate a case on its merits without first determining whether we have the authority to proceed. Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). “[Jjurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.” Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). “[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993).

The subject matter jurisdiction of this court is defined by statute. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 759-60, 628 A.2d 1303 (1993); Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); Chipman v. Waterbury, 59 Conn. 496, 497, 22 A. 289 (1890). The central issue before us, therefore, is whether § 52-273 confers jurisdiction on this court to review the disposition of a petition for a writ of habeas corpus after denial of certification to appeal. This issue can usefully be divided into the following subparts: (1) Does § 52-273 permit writs of error for review of judgments rendered in habeas corpus proceedings? (2) If § 52-273 does not permit such a writ of error, does Practice Book § 4143 nevertheless provide authority for such a writ of error? (3) If neither the statute nor the Practice Book permits a writ of error to be brought, what avenues of appellate review are available to challenge an adverse judgment in a habeas corpus proceeding?

I

On its face, the text of § 52-273 strongly suggests that the plaintiff may not bring a writ of error in the circumstances of this case. The statute disallows a writ of error “for the correction of any error which might have been reviewed by process of appeal.” (Emphasis added.) Although the plaintiff does not have an unqualified right to appeal from the denial of his petition for a writ of habeas corpus, he would have had such a right if, in accordance with the provisions of General Statutes § 52-470 (b), either the habeas court or an appellate judge had certified that “a question is involved in the decision which ought to be reviewed . . . .” The availability of this qualified right of appeal is sufficient to deny the plaintiff access to a statutory right to a writ of error. See C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 8.3. This case is one example of a request for a review of errors that, in the language of § 52-273, “might have been reviewed by process of appeal.”

As a matter of statutory construction, this result is entirely consistent with the manifest intention of the legislature, when it enacted § 52-470 (b), to limit the opportunity for plenary appellate review of decisions in cases seeking postconviction review of criminal convictions. The legislature amended the predecessor statute to § 52-470 (b) for this specific purpose. See Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). At the same time, it also amended the statute governing a petition for a new trial in a criminal case, now General Statutes § 54-95 (a), to require a similar certification as a condition on the right to appeal. Having restricted the right to appeal, under both statutes, to cases in which a judge or justice has specifically determined that further review is appropriate, the legislature could not have intended a writ of error to serve as an alternate, unrestricted route for appellate review.

II

Despite this consistent and unambiguous manifestation of legislative intent, the plaintiff maintains that court rules of procedure and judicial precedents entitle him to bring a writ of error. We are unpersuaded.

The Practice Book provision on which the plaintiff principally relies is § 4143 (b) (1). Subsection (b) (1) provides: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court.”

The plaintiff contends that he may invoke the provisions of § 4143 (b) because, in his view, its provisions are consistent with the provisions of § 52-273. We disagree. A textual comparison of the two provisions ineluctably demonstrates that, after a denial by the habeas court of certification to appeal that is not an abuse of discretion, the statute precludes access to a writ of error, while the Practice Book authorizes its use. To the extent that § 4143 (b) (1) is inconsistent with the provisions of the General Statutes, our jurisdiction to consider a writ of error is governed by the applicable statutes. Provisions of the Practice Book cannot confer jurisdiction on this court. See General Statutes § 51-14; Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 759-60; Grieco v. Zoning Commission, supra, 226 Conn. 231; State v. Ayala, supra, 222 Conn. 338-41; State v. Curcio, supra, 191 Conn. 30.

The stark textual contrast between the statute and the Practice Book is heightened by the fact that, since the 1986 amendments to the Practice Book, the scope of review afforded by a writ of error is no longer limited to errors of law “apparent on the face of the record.” Practice Book, 1963, § 3090 (now § 4143). Instead, Practice Book § 4144 now provides that procedures for a writ of error “shall be in accordance with the rules for appeals.” See Bergeron v. Mackler, 225 Conn. 391, 393 n.3, 623 A.2d 489 (1993); C. Tait, supra, § 8.6. Permitting a writ of error in accordance with § 4143 of the Practice Book would therefore authorize a plenary review that is the functional equivalent of an ordinary appeal. Such a use of the writ of error would effectively write the certification requirement out of § 52-470 (b). A litigant disappointed by the outcome of a habeas corpus proceeding could always obtain plenary review of its merits, either on appeal if certification to appeal were granted, or through a writ of error if certification to appeal were denied.

Even if such inconsistency would normally require the provisions of the Practice Book to give way to the governing provisions of the jurisdictional statutes, the plaintiff contends that this court’s past practice of reviewing habeas corpus decisions on writs of error establishes the legitimacy of this procedural route. In essence, this argument suggests that decisions of this court estop the state from insistence on compliance with the governing statutes. To state this argument is to refute it. Constraints on our jurisdiction cannot be waived by anyone, including this court. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766-67; Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988). To the extent that our precedents imply that a writ of error may be brought in the circumstances of this case, these precedents are mistaken and are hereby overruled.

III

The unavailability of appellate review of habeas corpus proceedings by means of a writ of error does not leave a disappointed litigant remediless to obtain review of the merits of the habeas corpus judgment. The litigant may, of course, persuade either the habeas court, or an appellate judge or justice, to permit a further appeal. The fact that certification to appeal may be sought from someone other than the judge hearing the habeas case is a significant protection of the rights that habeas corpus proceedings are intended to protect. Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984).

Even if certification to appeal is denied, however, the disappointed litigant does not lack further recourse. The petitioner or the state, as the case may be, can nonetheless file an appeal in the proper appellate forum. In such an appeal, the first issue for the appellate tribunal will necessarily be whether it has jurisdiction to hear the appeal. Appellate tribunals are regularly called upon to determine their own jurisdiction, which may be brought into question either by a motion to dismiss or by appropriate briefing of the issue. For example, before reaching the merits of appellate litigation, appellate tribunals routinely resolve disagreements about the timeliness of an appeal, the presence or absence of a final judgment from which to appeal, or the occurrence of intervening events that may have rendered an appeal moot. A similar threshold jurisdictional question will be presented in any case in which, despite the absence of certification to appeal, an appellate tribunal is asked to determine the merits of a habeas corpus judgment involving a criminal conviction. Before addressing the merits, the appellate tribunal will have to decide whether the habeas court’s denial of certification was an abuse of that court’s discretion.

Construing § 52-470 (b) to permit appellate scrutiny of the denial of certification to appeal is consistent not only with the salutary purposes of the writ of habeas corpus; Gaines v. Manson, supra, 194 A.2d 516; but with other statutes establishing certification requirements that expressly preclude further appellate review. “Because the legislature is always presumed to have created a harmonious and consistent body of law, we read statutes together when they relate to the same subject matter.” Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993); Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987). Although §§ 52-470 (b) and 54-95 (a) both require certification to appeal, neither statute includes a provision that denial of the requisite certification is final and dispositive. By contrast, in General Statutes § 8-8, governing zoning appeals and in General Statutes § 51-197f, governing appeals from final judgments of the Appellate Court, the legislature has expressly stated that, upon the denial of certification to appeal, there shall be “no right to further review.” See also General Statutes § 46b-231 (n) and (o), governing appeals from family magistrates.

Although we have not previously articulated the standard of review on direct appeal of the denial of certification under §§ 52-470 (b) or 54-95 (a), we have considered a similar issue in related cases. When we determined that a writ of error to review such a denial would require the showing of an abuse of discretion; Walker v. Commissioner of Correction, 223 Conn. 411, 414, 611 A.2d 413 (1992); we relied on case law under General Statutes § 54-96, which authorizes a trial court to permit the state to appeal questions of law in criminal cases. In that context, we have held that, on appeal, the issue is whether the record manifests a “clear and extreme abuse of discretion” or whether “injustice appears to have been done.” State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977); State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 312, 521 A.2d 1017 (1987). In similar fashion, therefore, we construe § 52-470 (b) to permit a disappointed habeas corpus litigant to invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that an injustice appears to have been done.

The writ of error is dismissed.

In this opinion Santaniello and Dupont, Js., concurred.

Borden, J.,

concurring. I fully agree with parts I and II of the majority opinion. I decline to join part III, however, in which the majority states that a disappointed habeas corpus litigant, whose petition for certification under General Statutes § 52-470 (b) has been denied, may nonetheless file a direct appeal, the threshold issue of which would be whether the denial of the certification petition was an abuse of discretion.

First, part III of the opinion is dictum. Whether such an appeal is permissible under § 52-470 (b) was not raised in this case, was not briefed by either party, and is not necessary to our decision that a writ of error does not lie following the denial of certification to appeal. Experience has demonstrated that we are wiser to defer difficult questions to cases that squarely present them. I would follow that wisdom and defer the question to a case in which the issue is squarely presented and briefed.

Second, I am not prepared necessarily to agree with the reasoning of the majority on its interpretation of § 52-470 (b), at least without much further thought and research than this case has presented to us. I am not persuaded, at this time, by the comparisons to the zoning appeal certification statute; General Statutes § 8-8; and to the statute regarding certified appeals to this court from judgments of the Appellate Court. General Statutes § 51-197Í. The fact that § 52-470 (b) does not contain the same emphatic language regarding the lack of further review that is contained in those statutes is not conclusive on the question of whether the legislature’s intent in enacting § 52-470 (b) was just as emphatic. See Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992).

Third, I am not prepared to equate, as does the majority, § 52-470 (b) with the state’s appellate rights pursuant to General Statutes § 54-96, again, at least without further thought and scholarship on the issue. There are several significant differences between § 52-470 (b) and § 54-96 that, arguably, could require differing treatments of the right to appeal following the denial by the trial court of a certification to appeal.

Section 52-470 (b) was enacted to limit appellate rights that previously existed; see Iovieno v. Commissioner of Correction, supra, 222 Conn. 259; whereas § 54-96 was enacted to create appellate rights that previously had not existed. Furthermore, under § 52-470 (b), unlike under § 54-96, the disappointed litigant has the option of applying to a judge of the Appellate Court or a justice of this court for certification to appeal, rather than relying on the determination of the habeas judge who made the initial decision. In addition, an unsuccessful habeas petitioner who has been denied certification to appeal under § 52-470 (b) will, in most cases, have federal habeas corpus available to him. Thus, a denial of certification under § 52-470 (b) will not be the end of the line for such a litigant, whereas absent the residual opportunity of the state to appeal following the denial of the state’s petition for certification under § 54-96, such a denial would be the end of the state’s case. This difference is particularly pertinent in a case such as this, in which the petitioner’s substantive claim is that his federal constitutional right to effective representation of counsel was violated.

Finally, the majority’s implied invitation to appeal, directed to all disappointed habeas petitioners denied certification to appeal, could well eviscerate the limitations contained in § 52-470 (b). In effect, the denial of the petition for certification could become an empty gesture, because one does not need to be prescient to foresee that every disappointed habeas petitioner could, once his petition for certification is denied, file or perfect a direct appeal under the same statute. Although, under the majority’s analysis, the “threshold” issue will be whether the denial of the § 52-470 (b) petition was an abuse of discretion, that will not prevent the appeal itself, nor is it likely that the threshold issue will be a jurisdictional issue that we will be able to dispose of prior to hearing the appeal on its merits. Unlike a question of whether an appeal was timely, a question of whether the habeas court abused its discretion requires an examination of the merits.

Thus, it is difficult for me, again at least at this stage of the process, to understand why the legislature would have limited the right to appeal as it did under § 52-470 (b), and at the same time, nonetheless, intended to permit a full appeal, the first issue of which would be whether the court abused its discretion under § 52-470 (b) in denying a petition for certification. I see no justification for reaching out to find such an intent in a case, such as this, that does not present the issue.

Berdon, J., dissenting. I respectfully dissent for the reasons stated in my dissenting opinion in Carpenter v. Meachum, 229 Conn. 193, 203, 640 A.2d 591 (1994).

       In a companion case, Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994), we have today considered and rejected a constitutional challenge to the validity of General Statutes § 52-273.

       The Appellate Court affirmed the plaintiff’s criminal conviction in State v. Simms, 14 Conn. App. 1, 539 A.2d 601 (1988). We affirmed the judgment of the Appellate Court. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989).

       Each of the plaintiff’s counts was premised on his contention that the trial court judge, Corrigan, J., should have recused himself, in large measure because he had presided over a previous trial that resulted in the plaintiff’s conviction of the crime of felony murder and had commented on the plaintiffs lack of credibility when sentencing him for that crime.

       In its memorandum of decision, the habeas court noted that its dismissal of the third count of the amended petition for a writ of habeas corpus at the habeas hearing had been “because the ‘cause and prejudice’ grounds alleged therein to justify not raising these issues on direct appeal were insufficient to excuse that failure and for failure to allege ‘no deliberate bypass’ of the direct appeal process.”

       The habeas court denied a motion to open the evidence that the plaintiff filed after the conclusion of the evidentiary hearing.

       General Statutes § 52-470 provides: “summary disposal of the case, appeal BY PERSON convicted OF CRIME, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
      “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       See 7 S. Proc., Pt. 5, 1957 Sess., pp. 2936, 2939-40; 7 H.R. Proc., Pt. 5, 1957 Sess., pp. 2881-83.

       General Statutes § 54-95 provides in relevant part: “appeal by defendant in criminal prosecution; stay of execution, (a) Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal, petition for a new trial or writ of error, in the same manner and -with the same effect as in civil actions. No appeal may be taken from a judgment denying a petition for a new trial unless, within ten days after the judgment is rendered, the judge who heard the case or a judge of the supreme court or the appellate court, as the case may be, certifies that a question is involved in the decision which ought to be reviewed by the supreme court or by the appellate court. It shall be sufficient service of any such writ of error or petition for a new trial to serve it upon the state’s attorney for the judicial district where it is brought.”

       See part II regarding the plenary scope of review for writs of error.

       General Statutes § 51-14 provides in relevant part: “rules of COURT. ... (a) The judges of the supreme court, the judges of the appellate court, and the judges of the superior court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure injudicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts. ...”

       Furthermore, applying the rule of the Practice Book would create a distinction between postconviction cases brought under General Statutes § 52-470 (b), for which the writ of error would be available, and under General Statutes § 54-95 (a), for which the writ of error would be unavailable, even though the legislature has determined that these remedies should be treated alike. See C. Tait, supra, § 2.5.

       The plaintiff principally relies on four cases. Our review persuades us, however, that only three are relevant to the present discussion.
      In Laws v. Warden, 218 Conn. 479, 590 A.2d 436 (1991), we held that the respondent, as well as the petitioner, must obtain certification under General Statutes § 52-470 (b) in order to appeal from an adverse habeas corpus judgment. In that context, when we described Practice Book § 4143 (b) as clarifying an ambiguity in the underlying statute, the relevant statute was § 52-470 (b) and not General Statutes § 52-273.
      In Iovieno v. Commissioner of Correction, supra, 222 Conn. 254, we rejected the plaintiff’s contention that a habeas court has discretion to consider an untimely filed petition for certification to appeal. The jurisdictional flaw in the plaintiff’s pursuit of a writ of error was not called to our attention. We were, however, mistaken to have assumed that we had the jurisdiction to entertain that writ of error.
      In Commissioner of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631 (1992), we sustained the state’s action in bringing a writ of error to challenge the validity of habeas corpus proceedings in which the habeas court had ordered a new trial and had denied the state’s request for certification to appeal. The jurisdictional flaw in the state’s pursuit of a writ of error was again not called to our attention. We were, however, mistaken to have assumed that we had the jurisdiction to entertain that writ of error.
      In Walker v. Commissioner of Correction, 223 Conn. 411, 413-14 n.3, 611 A.2d 413 (1992), we permitted a writ of error to be used to affirm the decision of a habeas court denying the plaintiff’s request for certification to appeal. The jurisdictional flaw in the plaintiff’s pursuit of a writ of error was not raised by the parties or briefed by them. We were, however, mistaken to have addressed the merits without determining our jurisdiction to entertain that writ of error.

       Although some of our precedents suggest that a motion for review is the proper way to seek appellate consideration of the propriety of a denial of certification, the motion for review is not an appropriate vehicle for determining whether an appellate tribunal has jurisdiction. The scope of the motion for review is defined by Practice Book § 4053 to encompass orders “relating to the perfecting of the record for the appeal or the procedure of prosecuting or defending against the appeal, or any order made by the trial court concerning a stay of execution on appeal.” The motion for review is therefore restricted to matters that are ancillary to an existing appeal. See C. Tait, supra, § 2.6 (e).
      Another alternate remedy that might provide access to appellate review of the merits of a habeas corpus judgment is a petition for review. That remedy is, however, statutory. To date, the legislature has provided such a remedy only for appeals of orders prohibiting attendance at any session of court; General Statutes § 51-164x (a); and of orders relating to the disclosure of the records of an investigatory grand jury. General Statutes § 54-47g (a).

       “[General Statutes] Sec. 8-8. appeal from board to court, review BY APPELLATE COURT. . . .
      “(o) There shall be no right to further review except to the appellate court by certification for review, on the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.” (Emphasis added.)

       “[General Statutes] Sec. 51-1971 further review by certification ONLY. Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish. The procedure on appeal from the appellate court to the supreme court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court, unless modified by rule of the justices of the supreme court.” (Emphasis added.)

       In its requirement for a certificate of probable cause, federal law places similar constraints on a federal petitioner’s right to appeal from the denial of relief in habeas corpus proceedings challenging the validity of a state criminal conviction. See 28 U.S.C. § 2253; Fed. R. App. P. 22 (b); see also L. Yackle, Postconviction Remedies (1981) § 160.
      The Supreme Court of the United States has instructed federal courts that a certificate of probable cause should issue whenever a petitioner makes “a substantial showing of a denial of [a] federal right.” (Internal quotation marks omitted.) Lozada v. Deeds, 498 U.S. 430, 431, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). To make such a showing, “a petitioner who has been denied relief in a district court must demonstrate that the issues are debatable among jurists of reason; that a court could, resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Lozada v. Deeds, supra, 432.
      We do not need to decide today whether the federal standard should guide the granting or denial of certification to appeal under General Statutes § 52-470 (b). Justice Berdon’s dissent in the companion case of Carpenter v. Meachum, 229 Conn. 193, 203, 640 A.2d 591 (1994), therefore, raises issues that are not properly before us in this case.


author:
Peters, C. J.
      Berdon, J., Katz, J., with whom Berdon, J.,

text:
    Richard T. Carpenter v. Larry R. Meachum, Commissioner of Correction
    (14595)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued January 5—
    decision released March 18, 1994

      John R. Williams, for the plaintiff in error.

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the defendant in error.

       March 18, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Peters, C. J.

In this companion case to Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), the dis-positive issue is the constitutionality of General Statutes § 52-273 insofar as that statute deprives this court of subject matter jurisdiction over a writ of error brought to review the denial of a petition of habeas corpus after the habeas court has denied certification to appeal. We conclude that the statute passes constitutional muster and that the writ of error must, therefore, be dismissed.

The plaintiff in error, Richard T. Carpenter (plaintiff), filed a revised petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, Larry R. Meachum, commissioner of correction (state), pursuant to his 1990 conviction of the crime of manslaughter in the first degree. He alleged that he had been denied his constitutional right to effective assistance of trial counsel as guaranteed by the sixth and fourteenth amendments to the United States constitution. After an evidentiary hearing, the habeas court denied the petition, concluding that the plaintiff had failed to prove either that his trial counsel had rendered ineffective assistance, or that, even if the representation had been ineffective, it was probable that, but for that ineffectiveness, a different result would have been realized. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The habeas court thereafter denied the plaintiffs petition for certification to appeal. Without attempting to challenge the validity of this denial, the plaintiff then filed a writ of error in this court.

Pursuant to his writ of error, the plaintiff contends that the judgment of the habeas court should be set aside because that court improperly excluded relevant evidence and improperly rejected his claim of ineffective assistance of counsel. While countering these contentions on their merits, the state also maintains that, for two reasons, both grounded in § 52-273, we lack subject matter jurisdiction over the writ of error in this case. First, the state contends that the plaintiff may not bring a writ of error because, under the second sentence of § 52-273, “[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.” Second, the state contends that the writ of error must be dismissed as untimely because, contrary to the first sentence of § 52-273, the plaintiffs writ was not “allowed and signed within two weeks after the rendition of the judgment or decree complained of.” We agree with the state’s first jurisdictional claim and, therefore, need not reach the other issues.

In Simms v. Warden, supra, 229 Conn. 178, we have today concluded that, as a matter of statutory construction, § 52-273 deprives this court of subject matter jurisdiction to hear a writ of error challenging the propriety of a judgment denying a petition for a writ of habeas corpus regarding a criminal conviction, when the habeas court has denied the petitioner’s request for certification to appeal. In this case, besides reiterating the statutory argument that we rejected in Simms v. Warden, supra, the plaintiff further contends that it is unconstitutional for the legislature to limit this court’s authority to decide any writ of error filed in conformity with the rules of the Practice Book.

Before we consider the merits of the plaintiff’s constitutional argument, we must determine whether the plaintiff’s claims to relief fit within the terms of the writ of error that we have enacted pursuant to our rule-making authority. Practice Book § 4143 (b), on which the plaintiff relies for jurisdiction to proceed in this court, does not provide unlimited authority to bring to this court a writ of error in habeas corpus cases.

Section 4143 (b) allows a petitioner in a habeas corpus proceeding who has been denied certification to appeal to pursue a writ of error only with respect to issues that “do not present any federal question cognizable by the federal district court.” This limitation presents a difficulty to the plaintiff in this case because his substantive claim in the habeas court, and in this court, is that he was deprived of the assistance of effective counsel under the sixth and fourteenth amendments to the United States constitution. The plaintiff maintains, nonetheless, that his evidentiary claim entitles him to invoke § 4143. He argues that his evidentiary claim arises as a matter of state law and that this evidentiary claim is both independent of and antecedent to the federal question of ineffective assistance of counsel. We doubt that the drafters of § 4143 envisaged the administrative complexities that such a bifurcation of habeas appeals would entail. For the purposes of the present proceedings, however, we will assume that the plaintiff’s articulation of an evidentiary claim would suffice to permit him to have recourse to Practice Book § 4143 if that provision were not inconsistent with General Statutes § 52-273.

We turn, therefore, to the merits of the plaintiff’s constitutional claim that state constitutional principles rooted in the separation of powers established in the Connecticut constitution of 1818 deprive the legislature of authority to limit this court’s jurisdiction to determine when we will hear a writ of error. Two cases are central to the plaintiff’s argument. The first is Szarwak v. Warden, 167 Conn. 10, 355 A.2d 49 (1974), in which we restated and applied state constitutional limitations on the authority of the legislature to impair the jurisdiction of the constitutional courts. The second is State v. Assuntino, 173 Conn. 104, 376 A.2d 1091 (1977), in which we concluded that this court has the authority to adjudicate a common law writ of error even though the legislature has not affirmatively authorized such a writ of error to be brought. These cases do not sustain the plaintiff’s claim.

In Szarwak v. Warden, supra, 167 Conn. 10, we held that state constitutional principles of separation of powers prevent the legislature from conferring broad criminal jurisdiction on a nonconstitutional trial court in derogation of the constitutional jurisdiction of the Superior Court. We reiterated the position that we had taken in Walkinshaw v. O’Brien, 130 Conn. 122, 127, 32 A.2d 547 (1943), that the constitution of 1818 preserved “the essential characteristics” that this state’s constitutional courts then possessed. We quoted with approval the statement in Walkinshaw v. O’Brien, supra, 142, that “[i]t is entirely clear . . . that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts.” Szarwak v. Warden, supra, did not purport, however, to identify “the essential characteristics” of this constitutional court.

In State v. Assuntino, supra, 173 Conn. 104, we permitted the state to bring a writ of error to contest dismissal of criminal charges by the Court of Common Pleas, for which the legislature had provided no right of appeal. Recognizing inconsistencies in earlier Connecticut cases about whether a writ of error was purely statutory, we concluded that “the common-law writ of error was adopted by Connecticut as part of its own common law.” Id., 110. No statute expressly purported to limit the state’s authority to bring a writ of error; id.; and we concluded that the legislature had not impliedly intended to do so. Id., 106. Accordingly, we held that it was “unnecessary for this court to consider whether the jurisdiction to hear such a writ is an essential attribute of the constitutional role of this court . . . Id., 110. Assuntino, therefore, did not set constitutional limits on the legislature’s authority to determine this court’s jurisdiction over writs of error.

The constitutional question raised by this case is narrower than the question that remains unanswered by State v. Assuntino, supra, 173 Conn. 104. We need not decide to what extent the legislature may constitutionally encroach on the writ of error as it existed at common law. The only question before us is whether the legislature may constitutionally limit recourse to a writ of error to review a judgment in a habeas corpus proceeding concerning the validity of a criminal conviction. We are persuaded that, although a writ of habeas corpus existed at common law, the denial of such a writ was not reviewable either on appeal or by writ of error.

The plaintiff has cited no case, and our research has disclosed none, in which this court or its historical antecedents, at or near the time of the adoption of the Connecticut constitution of 1818, reviewed the merits of a trial court’s denial of a writ of habeas corpus. Perhaps the closest analogy may be found in a series of early nineteenth century cases concerning appeals sought to be taken from trial court rulings denying a petition for a new trial. These cases do not support the plaintiff. They uniformly held that, because a petition for a new trial calls upon the trial court to exercise its discretion, a writ of error does not lie on a judgment or decree refusing to grant such a petition. Magill v. Lyman, 6 Conn. 59, 60 (1825); White v. Trinity Church, 5 Conn. 187, 188 (1823); Lewis v. Hawley, 1 Conn. 49, 50 (1814); Granger v. Bissell, 2 Day (Conn.) 364, 368 (1806).

In the absence of dispositive state cases about Connecticut common law practices, State v. Assuntino, supra, 173 Conn. 107, enjoins us to “look back to the practice of England.” Professor Yackle states that, “[a]t common law, there was no right of appeal from judgments in habeas corpus. [Ex parte Savarkar, 2 K.B. 1056 (1910); R. Sharpe, The Law of Habeas Corpus (1976) p. 195; G. Longsdorf, ‘Habeas Corpus: A Protean Writ and Remedy,’ 8 F.R.D. 179, 189-90 (1948)]. . . . The reason for the lack of appellate process is difficult to ascertain, but it appears that the unavailability of the writ of error in habeas cases may have stemmed from an understanding that habeas was a summary proceeding, even interlocutory in nature. Accordingly, appeal was denied in order to avoid unnecessary delays in reaching final judgment in the case in chief—usually the criminal prosecution of the petitioner.” L. Yackle, Postconviction Remedies (1981) § 158, pp. 581-82.

Professor Yackle further notes that “[e]arly state court decisions in this country adopted the British understanding, viewing appellate review in habeas cases as wholly a creature of statute. [See note, J. Crim. L. Criminology and Police Sci. 277 (1936)]. Congress apparently took a similar position regarding the federal writ. Indeed, the Judiciary Act of 1789 neglected to provide for appellate review of habeas proceedings and, instead, restricted the writ of error or appeal to cases in which a sum of money was at stake. . . . [I]t is generally agreed that appellate review was first introduced by the Act of 1867, which also extended the reach of the writ to prisoners held in state custody.” Id., p. 582.

A series of late nineteenth century Connecticut cases confirm the accuracy of Professor Yackle’s observation with regard to the limitations of the common law of habeas corpus in Connecticut and the implementation of appropriate procedures by statute. The first discussion that we have found in our case law concerning a right to appeal from a judgment rendered pursuant to a writ of habeas corpus with respect to a criminal conviction is Yudkin v. Gates, 60 Conn. 426, 22 A. 776 (1891). That case held that appellate jurisdiction to hear such an appeal depended upon compliance with the requirements of General Statutes (1888 Rev.) § 1129. Id., 427. As we explained in State v. Caplan, 85 Conn. 618, 623-24, 84 A. 280 (1912), § 1129 had been enacted in 1882 to provide a general right of appeal for any questions of law thereafter arising in any trial court. There is, therefore, nothing in our case law to suggest that either a common law or statutory right to appellate review of a habeas judgment existed before the enactment of § 1129 in 1882.

Other late nineteenth century cases may help to explain the absence of an earlier appellate remedy for review of habeas corpus proceedings. These cases emphasize the limited scope of the common law writ of habeas corpus in Connecticut. In In re Bion, 59 Conn. 372, 390-92, 20 A. 662 (1890), this court observed that the scope of relief pursuant to a writ of habeas corpus precluded review of mere errors and irregularities of procedure, and focused instead on alleged claims concerning the jurisdiction of the court and its authority to impose the sentence at issue. Pursuing that theme further, in Scott v. Spiegel, 67 Conn. 349, 35 A. 262 (1896), we cited Swift’s Digest for the proposition that “in cases of habeas corpus, by the common law, the ‘truth of the return cannot be contested, and there is no remedy for the party aggrieved, but an action on the case for the false return, or by information, or indictment in the name of the public.’ . . . ‘As the remedy by the common law is very imperfect, it has been supplied in this State by statute.’ ” Id., 357; see 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 568-69. We specifically noted that, to correct these common law imperfections, “[i]n 1815, the legislature of this State had provided for pleadings and procedure in cases of habeas corpus, by an enactment, one section of which has been continued without change in every Revision to this time.” (Emphasis added.) Scott v. Spiegel, supra, 357-58; see also Whitten v. Spiegel, 67 Conn. 551, 553, 35 A. 508 (1896) (petitioner could not succeed in appeal from denial of writ of habeas corpus because parol evidence was inadmissible to challenge validity of indictment).

In light of these precedents, we are persuaded that, at common law in Connecticut in 1818, neither an appeal nor a writ of error would have been available to review the denial of a writ of habeas corpus in the circumstances of the present case. We have found nothing in the case law or in the secondary literature to demonstrate that Connecticut’s long history of recognizing the significance of a right to counsel; see State v. Stod dard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988); was ever translated into a common law right to mount a collateral attack on a criminal conviction, through use of a writ of habeas corpus, for lack of effective assistance of counsel. Indeed, as a matter of federal law, that connection was not articulated until McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 663 (1970).

The plaintiffs attack on § 52-273 as unconstitutionally impairing this court’s authority to hear a writ of error in habeas corpus cases has, at best, not been affirmatively established. We do not declare statutes to be unconstitutional on such a basis. To the contrary, “[bjecause a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt.” Calfee v. Usman, 224 Conn. 29, 33, 616 A.2d 250 (1992); Sassone v. Lepore, 226 Conn. 773, 778, 629 A.2d 357 (1993).

To summarize, we conclude that, since 1815, the General Assembly has enacted statutes to provide for pleadings and procedures in cases of habeas corpus challenging the validity of a criminal conviction. This history furnishes a constitutional basis for the General Assembly’s proper exercise, in 1882, of its legislative authority to enact § 1129 granting a right to appeal in habeas corpus proceedings. Having constitutionally granted a right to appeal in 1882, the General Assembly did not impair “the essential nature or jurisdiction of this court” when it qualified the right to appeal to this court by enacting § 52-470 (b) in 1957. In habeas corpus proceedings, therefore, it was equally constitutional for the General Assembly to limit the right to obtain appellate review through a writ of error, under § 52-273, by excluding cases “which might have been reviewed by process of appeal.”

The writ of error is dismissed.

In this opinion Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. I agree with the conclusion reached in Justice Katz’s well reasoned dissent that a writ of error may be brought by a petitioner who has been denied certification to appeal in a habeas corpus proceeding under General Statutes § 52-470 (b). I nevertheless write separately to express my great concern over the serious implications that this case and Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), hold for the writ of habeas corpus.

Today’s decision, although technically concerned with the writ of error, will have a devastating effect on habeas corpus, “the great writ of liberty.” Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992). This writ, which has its roots in the Magna Charta, was designed to be a bulwark against miscarriages of justice and convictions that violate fundamental fairness. Id. Chief Justice Swift wrote that “[t]his writ furnishes the strongest security for the liberty of the citizen, and constitutes the most prominent distinction between a free and absolute government.” 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 568. Indeed, like the federal constitution, this state’s first formal constitution enshrined the writ of habeas corpus, as have all of our subsequent charters of liberty.

The majority decision undermines the writ by eliminating appellate review as a matter of right. In addition, because we require ineffective assistance of counsel claims to be raised exclusively through the writ of habeas corpus; State v. Hamilton, 228 Conn. 234, 242-43, 636 A.2d 760 (1994); Lozada v. Warden, supra, 223 Conn. 841; State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); today’s decision means that a petitioner will be deprived of any state appellate review of this claim unless a justice or judge provides the required certification.

The majority in Simms purports to provide an alternative remedy—that is, an appeal to determine whether the habeas court abused its discretion in denying certification—but gives no guidance concerning the standard to be applied in making this determination. Under any standard, we would be required to consider the merits of the appeal in order to determine whether “a question is involved in the [habeas court’s] decision which ought to be reviewed . . . .” General Statutes § 52-470 (b). Would the standard be that if there is a little injustice, there is not an abuse of discretion, but if there is a great injustice, then there is an abuse of discretion?

The fact is that this court has dealt harshly with criminal defendants who seek to establish that a trial court has abused its discretion. For example, in a recent appeal challenging the trial court’s refusal to grant a defendant a mere one day continuance to obtain preferred counsel, the majority stated that “abuse of discretion” was a standard “that, although not unreviewable, affords the trial court broad discretion . . . ." State v. Hamilton, supra, 228 Conn. 250. This “broad discretion” led the majority to uphold the trial court even though there is a constitutional right to counsel of choice; id., 243; and the defendant in the case was only seventeen years old. Id., 236. In fact, my recent search through 200 years of this state’s jurisprudence has revealed only one criminal case “in which this court . . . held that the trial court’s denial of a motion for continuance constituted an abuse of discretion.” Jackson v. Commissioner of Correction, 227 Conn. 124, 145, 629 A.2d 413 (1993) (Berdon, J., dissenting).

I believe that, with this decision and that in Simms v. Warden, supra, 229 Conn. 178, a majority of this court furthers its efforts to limit the writ of habeas corpus. I most recently expressed this concern in my dissent in Jackson v. Commissioner of Correction, supra, 227 Conn. 139, in which I stated: “I must confess that the scales weigh heavily, at least for me, in favor of granting a new trial to persons whose claims cast a substantial cloud on the validity of their convictions. The rules established today have equal application for those who are incarcerated for life as well as those who are awaiting the death penalty. The majority, emulating the United States Supreme Court, restricts habeas corpus in the name of finality of decisions. Lest we forget, there is nothing more final than the imposition of the death penalty.”

Indeed, it appears that the goal of executing people with dispatch was what brought about the amendment of the habeas statute to require certification in the first place: “During discussion on the Senate floor concerning the amendment, Senator Elmer S. Watson read into the record a letter from former Chief Justice William M. Maltbie expressing concern over the delay in the executions for first degree murder. The letter stated, inter alia: ‘There are . . . two means which have been used to delay the execution of the death sentence and which . . . may properly be subjected to more regulation than now exists. One of these is the petition for a new trial for . . . newly discovered evidence, with an appeal to the Supreme Court, if it is denied. It has seemed to me that such petitions have been used in certain instances, not because they had any merit, but in a calculated effort to delay the imposition of the penalty. . . . The other means by which, I feel, unjustifiable delay has been caused is through the use of the writ of habeas corpus. . . .’ 7 S. Proc., Pt. 5, 1957 Sess., pp. 2938-39.” Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). I must agree with Chief Justice Maltbie that the best way to expedite the business of putting people to death is to limit severely the right to appeal in habeas corpus proceedings.

In Safford v. Warden, 223 Conn. 180, 612 A.2d 1161 (1992), the majority claimed that my fears concerning their apparent assault on the writ of habeas corpus as a vehicle for justice; id., 205 (Berdon, J., concurring); were “baseless” because they had “no hidden agendas.” Id., 191 n.13.1 believe, however, that this court’s own record on appeals and writs of error taken from habeas corpus proceedings in recent years demonstrates just how well founded are the fears I voiced in Safford. See, e.g., Iovieno v. Commissioner of Correction, supra, 222 Conn. 262 (holding that the habeas court had no discretion to consider a petition for certification to appeal that was filed one day after the expiration of the ten day limit imposed by § 52-470 [b]); Bunkley v. Commissioner of Correction, 222 Conn. 444, 610 A.2d 598 (1992) (holding that in order to prevail on a claim of ineffective assistance of appellate counsel, a habeas petitioner must show not only that his or her appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the verdict at trial would have been different); Jackson v. Commissioner of Correction, supra, 227 Conn. 124 (holding that in order for a habeas petitioner to be entitled to review of a claim not raised on direct appeal, he or she must show that some objective factor external to the defense caused the procedural default and that the default was prejudicial, thereby abandoning the former rule that procedurally defaulted claims were reviewable in habeas proceedings so long as the petitioner had not deliberately bypassed his or her right to review of these claims); Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991) (abandoning the “deliberate bypass” standard in favor of the “cause and prejudice” standard for claims not raised at trial). Today’s decisions in the present case and Simms continue that assault on habeas corpus, stripping petitioners of the absolute right to appeal from habeas proceedings.

In my concurring opinion in Safford v. Warden, supra, 223 Conn. 206, I pointed out the following: “Justice Charles Evans Hughes wrote over fifty years ago that ‘[i]t must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.’ Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939). The writ of habeas corpus ‘ “holds an honored position in our jurisprudence . . . [as] a bulwark against convictions that violate ‘fundamental fairness.” ’ Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984), quoting Engle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783, reh. denied, 456 U.S. 1001, 102 S. Ct. 2268, 73 L. Ed. 2d 1296 (1982).” Today’s decision is fundamentally inconsistent with the writ that is designed to protect life and liberty.

I respectfully dissent.

Katz, J., with whom Berdon, J.,

joins, dissenting. I disagree with the majority’s conclusion that General Statutes § 52-273 deprives this court of subject matter jurisdiction over the writ of error brought by the plaintiff. Because I agree with the plaintiff’s statutory argument, I do not consider his constitutional claim.

The plaintiff, Richard Carpenter, is currently serving a twenty year sentence for manslaughter in the first degree. He brought a petition for a writ of habeas corpus alleging that he had been denied his constitutional right to effective assistance of counsel at trial. The habeas court denied the petition. The plaintiff then sought certification to appeal pursuant to General Statutes § 52-470 (b). This, too, was denied. The plaintiff then brought a writ of error from the decision of the habeas court to this court.

Since 1935, § 52-273 and its predecessors have prohibited the bringing of a writ of error “for the correction of any error which might have been reviewed by process of appeal.” The majority construes the language “process of appeal” to encompass the qualified right of appeal provided by § 52-470 (b). I disagree with this construction. It is undisputed that the habeas court’s denial of the plaintiff’s request for certification pursuant to § 52-470 (b) left the plaintiff without a right to appeal. At that point, the prohibition of § 52-273 became inapplicable.

It is important to recognize that the construction of § 52-273 that I urge is not new. For eighteen years, this court has construed § 52-273 to allow the bringing of a writ of error whenever an absolute right of appeal does not exist. In State v. Audet, 170 Conn. 337, 365 A.2d 1082 (1976), the state sought to appeal from the trial court’s dismissal of four counts against the defendant. The relevant statute, General Statutes (Rev. to 1975) § 54-96, provided that the state could appeal only with the permission of the presiding judge. Because the presiding judge had denied permission, this court dismissed the state’s appeal. Nevertheless, we noted that the state could “use the writ of error in a criminal case as a matter of right . . . .” Id., 341 n.1.

Two years later, on April 10,1978, the justices of this court met and adopted Practice Book § 3090. Section 3090 provided, in part, that: “An aggrieved party may file a writ of error in the supreme court only to review the final judgment of a judge or court in a case where no unqualified statutory right of appeal has been provided. . . .” (Emphasis added.) Then, as now, the right to appeal from a habeas proceeding was qualified by the certification requirement. Therefore, § 3090 clearly permitted the bringing of a writ of error after a habeas court had denied certification. Although the legislature amended § 52-273 in 1982, it did not change the statute substantively.

It is a fundamental rule of statutory construction that “ ‘the legislature is presumed to be aware of the judicial construction placed upon its enactments.’ Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992).” Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993). Furthermore, in revising a statute, “the legislature re-enact[s] it and is presumed to have impliedly ratified prior judicial interpretation of it. State v. Kyles, 169 Conn. 438, 442, 363 A.2d 97 (1975); Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959); see Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978).” Grodis v. Burns, 190 Conn. 39, 47 n.5, 459 A.2d 994 (1983). Applying these principles of statutory construction, the legislature’s failure to change § 52-273 in 1982 must be construed as a ratification of this court’s interpretation that only an absolute right to appeal bars a writ of error.

Furthermore, in 1986, § 3090, now § 4143, was amended to provide explicitly that either the state or the petitioner could bring a writ of error to this court if the habeas court denied certification to appeal. In Laws v. Warden, 218 Conn. 479, 483, 590 A.2d 436 (1991), this court held that § 4143 was “a judicially approved construction” of the habeas statute, § 52-470 (b). See also Franko v. Bronson, 19 Conn. App. 686, 693, 563 A.2d 1036 (1989) (“[i]f the petition for certification to appeal is denied, the petitioner may bring a writ of error in the Supreme Court under General Statutes § 52-273 and Practice Book § 4143”).

We have long held that “the legislature is presumed to be aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). This presumption is strengthened when the legislature has affirmatively reenacted the statute after the interpretation in question.” (Internal quotation marks omitted.) Union Trust Co. v. Heggelund, 219 Conn. 620, 627, 594 A.2d 464 (1991); White v. Burns, 213 Conn. 307, 333, 567 A.2d 1195 (1990); Scheyd v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 793 (1987). Even if the 1982 amendment of § 52-273 is ignored, the legislature’s nonaction over the past eighteen years in the face of this court’s explicit interpretations of § 52-273 as allowing the bringing of a writ of error after a court denies certification must be viewed as a validation of that interpretation. Habetz v. Condon, 224 Conn. 231, 239 n.12, 618 A.2d 501 (1992) (“[wjhere this court interprets a statute and the legislature fails to take action to change that interpretation, it raises the presumption that the legislature has acquiesced in that interpretation”); Union Trust Co. v. Heggelund, supra, 627.

The majority ignores these fundamental principles of statutory construction and holds that this court’s long-standing interpretation of § 52-273 is invalid. This holding is predicated on the conclusion of the majority in the companion case of Simms v. Warden, 229 Conn. 178, 183, 640 A.2d 601 (1994), that, in adding the certification requirement to the habeas statute in 1957, "the legislature could not have intended a writ of error to serve as an alternate, unrestricted route for appellate review.” As the majority concedes, however, the writ of error did not become an "unrestricted route for appellate review” until the Practice Book was amended in 1986. The current, more liberal scope of the writ of error is irrelevant to determining what the legislature’s intent was when it amended the habeas statute in 1957 to require certification. Their analysis reveals that the majority is essentially making policy, rather than construing statutes.

I respectfully dissent.

       General Statutes § 52-273 provides: “writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”

       The plaintiff was convicted of the crime of murder in violation of General Statutes § 53a-54a in connection with the death of a young child as a result of head trauma and a skull fracture. On direct appeal, this court set aside the murder conviction because of a lack of sufficient evidence to establish the plaintiff’s intent to kill. We concluded that the plaintiff was guilty of the lesser included crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990). On a second direct appeal, this court upheld the trial court’s judgment resentencing the plaintiff to a term of imprisonment of twenty years. State v. Carpenter, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992).

       The plaintiff claimed that he had not received the minimal level of competent representation necessary to comply with federal constitutional law because his trial counsel had allegedly failed: (1) to conduct a proper pretrial investigation; (2) to seek by motion the disclosure of records in the possession of other state agencies that would have substantially aided his defense; and (3) to request jury instructions on lesser included offenses.

       As in Simms v. Warden, supra, 229 Conn. 178, this issue is a matter of first impression. Since the particular issue raised in the two cases has never previously been addressed by this court specifically, there is no basis for concluding that legislative inaction ratified our construction of the statute. See id., n.12.

       The plaintiff has not raised any claim that constitutional principles of due process require an unconditional right to appeal on questions, such as ineffective assistance of counsel, that cannot be raised on direct appeal.

       Like Justice Katz, I do not consider the plaintiff’s constitutional claim.

       See Conn. Const., art. I, § 12. Prior to the adoption of the 1965 constitution, the habeas corpus provision was located in article first, § 14. The federal provision is located in article one, § 9, of the United States constitution.

       General Statutes § 52-470 (b) provides that the petitioner in a habeas corpus proceeding may obtain certification to appeal from “the judge before whom the case was tried or a judge of the supreme court or appellate court . . . (Emphasis added.) I agree with the majority in Simms v. Warden, supra, 229 Conn. 178, that the clear language of § 52-470 (b) permits a party seeking certification to appeal to address their petition to a specific appellate court judge or justice. In view of the majority opinions in this case and in Simms, it appears that the appellate judges and justices in this state will have a busy schedule. Nevertheless, the right to seek certification from an appellate judge or justice is not an adequate substitute for the unqualified right to appeal via a writ of error.

       I presume that the majority would also permit such an appeal if either a justice of this court or a judge of the Appellate Court refused a petitioner’s request for certification to appeal.

       The court in Walker v. Commissioner of Correction, 223 Conn. 411, 413 n.3, 611 A.2d 413 (1992), raised the issue of subject matter jurisdiction sua sponte in a footnote but did not decide it because the issue had not been briefed by the parties. I dissented in Walker, wondering how “the majority [could] profess to be concerned about the ‘troubling’ subject matter jurisdiction questions presented . . . and then quickly sweep them away in a footnote?” Id., 417. It is clear that if we think that we may not have subject matter jurisdiction, we must raise and decide this issue as a threshold matter, whether or not the parties have raised or briefed it. State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992).
      There is a bright side of sorts to today’s holding. The majority in Simms v. Warden, supra, 229 Conn. 185-86 n.12, concedes that the decisions in Iodeno v. Commissioner of Correction, supra, 222 Conn. 254, Commissioner of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631 (1992) (holding that a habeas petitioner who had been denied the right to testify at trial was required to show prejudice in order to prevail on his request for a new trial), and Walker v. Commissioner of Correction, supra, 223 Conn. 411 (holding that the habeas court had not abused its discretion in denying the petitioner’s request for certification to appeal), were rendered without subject matter jurisdiction. Therefore, these cases must be viewed as no longer having any force and effect. Nevertheless, while I am happy to see these cases vacated sub silentio, I fear that today’s holding will be far more destructive of the Great Writ of liberty than anything that has come before.

       General Statutes § 52-273 provides in pertinent part: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       In the companion case of Simms v. Warden, 229 Conn. 178, 186-87, 640 A.2d 601 (1994), the majority suggests that its holding does not leave a petitioner without a remedy because the petitioner may appeal the habeas court’s denial of certification to appeal. The majority concedes, however, that the scope of review would be limited to whether the habeas court abused its discretion in refusing certification. Such limited review can hardly be considered a remedy at all, and certainly is no substitute for full appellate review of the merits of a claim.

       General Statutes (Rev. to 1975) § 54-96 provided: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court, in the same manner and to the same effect as if made by the accused.”

       At the time, General Statutes § 52-273 provided: “No writ of error shall be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of, nor for the correction of any error which might have been reviewed by process of appeal.”

       General Statutes (Rev. to 1977) § 52-470 provided in pertinent part: “No appeal from the judgment rendered in a habeas corpus proceeding . . . shall be taken unless the appellant . . . petitions the judge before whom the case was tried or a judge of the supreme court to certify that a question is involved in the decision which ought to be reviewed by the supreme court and the judge so certifies.”

       Practice Book § 4143 (b) provides: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court, or (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.”