section 53-202k elements in Connecticut

2022First, she alleged a freestanding sixth amendment claim6 that her sentence on her conviction of attempt to commit assault in the first degree improperly was enhanced pursuant to § 53-202k because the jury was not instructed on one or more of the elements of § 53-202k, including the legal definition of ‘‘firearm,’’7 as defined in § 53a-3.8 See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000) (defendant’s sixth amendment right to jury trial requires that ‘‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitt

2022First, she alleged a freestanding sixth amendment claim6 that her sentence on her conviction of attempt to commit assault in the first degree improperly was enhanced pursuant to § 53-202k because the jury was not instructed on one or more of the elements of § 53-202k, including the legal definition of ‘‘firearm,’’7 as defined in § 53a-3.8 See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000) (defendant’s sixth amendment right to jury trial requires that ‘‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitt

2022Therefore, the habeas court, citing State v. Beall, 61 Conn. App. 430, 435 , 769 A.2d 708 , cert. denied, 255 Conn. 954 , 772 A.2d 152 (2001),11 determined that any error caused by the trial court’s failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt and, accordingly, the petitioner had failed to meet her burden as to her first claim.

2022Therefore, the habeas court, citing State v. Beall, 61 Conn. App. 430, 435 , 769 A.2d 708 , cert. denied, 255 Conn. 954 , 772 A.2d 152 (2001),11 determined that any error caused by the trial court’s failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt and, accordingly, the petitioner had failed to meet her burden as to her first claim.

2022Therefore, the habeas court, citing State v. Beall, 61 Conn. App. 430, 435 , 769 A.2d 708 , cert. denied, 255 Conn. 954 , 772 A.2d 152 (2001),11 determined that any error caused by the trial court’s failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt and, accordingly, the petitioner had failed to meet her burden as to her first claim.

2022Therefore, the habeas court, citing State v. Beall, 61 Conn. App. 430, 435 , 769 A.2d 708 , cert. denied, 255 Conn. 954 , 772 A.2d 152 (2001),11 determined that any error caused by the trial court’s failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt and, accordingly, the petitioner had failed to meet her burden as to her first claim.

2022See Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984); Skakel v. Commissioner of Correction, 329 Conn. 1, 30 , 188 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 788 , 202 L. Ed. 2d 569 (2019).

2022See Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984); Skakel v. Commissioner of Correction, 329 Conn. 1, 30 , 188 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 788 , 202 L. Ed. 2d 569 (2019).

2022See Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984); Skakel v. Commissioner of Correction, 329 Conn. 1, 30 , 188 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 788 , 202 L. Ed. 2d 569 (2019).

2022See Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984); Skakel v. Commissioner of Correction, 329 Conn. 1, 30 , 188 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 788 , 202 L. Ed. 2d 569 (2019).

2022In support of her contention, the petitioner points us to the decision of the United States Court of Appeals for the Ninth Circuit in United States v. Becerra, 939 F.3d 995 (9th Cir. 2019), in which the court stated that a trial court’s ‘‘failure to provide any oral instructions to the jurors is an error that as a practical matter precludes a harmless error analysis . . . .’’ (Emphasis added; internal quotation marks omitted.) Id., 1004 ; see also Guam v. Mar- quez, 963 F.2d 1311 , 1316 (9th Cir. 1992) (same).

2022In support of her contention, the petitioner points us to the decision of the United States Court of Appeals for the Ninth Circuit in United States v. Becerra, 939 F.3d 995 (9th Cir. 2019), in which the court stated that a trial court’s ‘‘failure to provide any oral instructions to the jurors is an error that as a practical matter precludes a harmless error analysis . . . .’’ (Emphasis added; internal quotation marks omitted.) Id., 1004 ; see also Guam v. Mar- quez, 963 F.2d 1311 , 1316 (9th Cir. 1992) (same).

2007See, e.g., State v. Brown, 259 Conn. 799, 807-808 , 792 A. 2d 86 (2002) (court properly instructed jury only on second element of § 53-202k); State v. Feliciano, 74 Conn. App. 391, 404 , 812 A.2d 141 (2002) (“application of § 53-202k depends on factual findings concerning the two elements of that statute: [1] that the defendant committed a class A, B or C felony and [2] that the defendant committed such felony with the use of a firearm” [emphasis added]), cert. denied, 262 Conn. 952 , 817 A.2d 110 (2003). 19 We conclude that § 53a-136a is a sentence enhancement provision and not a separate cri

2007See, e.g., State v. Brown, 259 Conn. 799, 807-808 , 792 A. 2d 86 (2002) (court properly instructed jury only on second element of § 53-202k); State v. Feliciano, 74 Conn. App. 391, 404 , 812 A.2d 141 (2002) (“application of § 53-202k depends on factual findings concerning the two elements of that statute: [1] that the defendant committed a class A, B or C felony and [2] that the defendant committed such felony with the use of a firearm” [emphasis added]), cert. denied, 262 Conn. 952 , 817 A.2d 110 (2003). 19 We conclude that § 53a-136a is a sentence enhancement provision and not a separate cri

2007See, e.g., State v. Brown, 259 Conn. 799, 807-808 , 792 A. 2d 86 (2002) (court properly instructed jury only on second element of § 53-202k); State v. Feliciano, 74 Conn. App. 391, 404 , 812 A.2d 141 (2002) (“application of § 53-202k depends on factual findings concerning the two elements of that statute: [1] that the defendant committed a class A, B or C felony and [2] that the defendant committed such felony with the use of a firearm” [emphasis added]), cert. denied, 262 Conn. 952 , 817 A.2d 110 (2003). 19 We conclude that § 53a-136a is a sentence enhancement provision and not a separate cri

2007See, e.g., State v. Brown, 259 Conn. 799, 807-808 , 792 A. 2d 86 (2002) (court properly instructed jury only on second element of § 53-202k); State v. Feliciano, 74 Conn. App. 391, 404 , 812 A.2d 141 (2002) (“application of § 53-202k depends on factual findings concerning the two elements of that statute: [1] that the defendant committed a class A, B or C felony and [2] that the defendant committed such felony with the use of a firearm” [emphasis added]), cert. denied, 262 Conn. 952 , 817 A.2d 110 (2003). 19 We conclude that § 53a-136a is a sentence enhancement provision and not a separate cri

2004Although it is the jury rather than the court that is required to find the facts pertaining to a violation of § 53-202k; State v. Rivera, 74 Conn. App. 129, 153 , 810 A.2d 824 (2002); neither this court nor our Supreme Court has ever held, nor do we hold now, that a defendant has a constitutional right to have the jury be informed of the consequences of its finding.

2004Although it is the jury rather than the court that is required to find the facts pertaining to a violation of § 53-202k; State v. Rivera, 74 Conn. App. 129, 153 , 810 A.2d 824 (2002); neither this court nor our Supreme Court has ever held, nor do we hold now, that a defendant has a constitutional right to have the jury be informed of the consequences of its finding.

2002“A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 794 , citing Neder v. United States, 527 U.S. 1, 17 , 119 S. Ct. 1827 , 144 L.

2002“A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 794 , citing Neder v. United States, 527 U.S. 1, 17 , 119 S. Ct. 1827 , 144 L.

2002State v. Montgomery, 254 Conn. 694, 737 , 000000759 A.2d 995 (2000) (holding trial court violated defendant’s due process rights by improperly failing to instruct jury on elements of § 53-202k, although failure was harmless error); State v. Velasco, 253 Conn. 210, 214 , 751 A.2d 800 (2000) (vacating sentence enhancement because trial court violated defendant’s due process rights by failing to instruct jury on § 53-202k); State v. Gerardi, 237 Conn. 348, 356-61 , 677 A.2d 937 (1996) (holding trial court violated due process safeguards by instructing that presence of unregistered gun in vehicle

2002State v. Montgomery, 254 Conn. 694, 737 , 000000759 A.2d 995 (2000) (holding trial court violated defendant’s due process rights by improperly failing to instruct jury on elements of § 53-202k, although failure was harmless error); State v. Velasco, 253 Conn. 210, 214 , 751 A.2d 800 (2000) (vacating sentence enhancement because trial court violated defendant’s due process rights by failing to instruct jury on § 53-202k); State v. Gerardi, 237 Conn. 348, 356-61 , 677 A.2d 937 (1996) (holding trial court violated due process safeguards by instructing that presence of unregistered gun in vehicle

2001The defendant failed to preserve this claim at trial and now seeks to prevail under State v. Golding, 213 Conn. 233, 239-40 , 567 A.2d 823 (1989). 15 Because the defendant failed to demonstrate that a constitutional violation clearly exists and deprived him of a fair trial, his claim fails under the third prong of Golding .

2001The defendant failed to preserve this claim at trial and now seeks to prevail under State v. Golding, 213 Conn. 233, 239-40 , 567 A.2d 823 (1989). 15 Because the defendant failed to demonstrate that a constitutional violation clearly exists and deprived him of a fair trial, his claim fails under the third prong of Golding .