Lewis v. Commissioner of Correction , 165 Conn. App. 411 ( 2016 )

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NORMAN LEWIS v. COMMISSIONER
OF CORRECTION
(AC 36888)
DiPentima, C. J., and Keller and Prescott, Js.
Argued February 1—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Mullins,
J.)
John C. Drapp III, assigned counsel, with whom, on
the brief, were Joseph A Jaumann, assigned counsel,
and James R. Fraguela, former assigned counsel, for
the appellant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Yamini Menon, special deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Norman Lewis, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court abused its
discretion by denying his petition for certification to
appeal and rejecting his claim that his trial counsel’s
ineffective plea bargaining deprived him of his right
to effective assistance of counsel. Having thoroughly
reviewed the record, we conclude that the habeas court
properly denied the petition for certification to appeal,
and, accordingly, we dismiss the appeal.
The record reveals the following facts and procedural
history relevant to our consideration of the petitioner’s
claims. Following a jury trial, the petitioner was found
guilty of robbery in the first degree as an accessory in
violation of General Statutes §§ 53a-134 (a) (4) and 53a-
8 (a), conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-134 (a) (4) and
53a-48, and interfering with a police officer in violation
of General Statutes § 53a-167a.1 The trial court sen-
tenced the defendant to a total effective term of twenty-
one years of incarceration. The petitioner’s judgment of
conviction was affirmed by this court in a memorandum
decision. State v. Lewis, 142 Conn. App. 901, 63 A.3d
550, cert. denied, 310 Conn 916, 76 A.3d 632 (2013).
On July 14, 2011, the self-represented petitioner filed
a petition for a writ of habeas corpus alleging that his
trial counsel, Attorney Ryan E. Bausch, had provided
ineffective assistance by failing to object to the jury’s
viewing of an enhanced surveillance video of the rob-
bery. The petitioner later was appointed a special public
defender, who filed an amended petition for a writ of
habeas corpus on September 27, 2013. Although the
amended petition continued to claim that Bausch had
provided ineffective assistance of counsel, it relied on
a different theory than the petitioner had asserted in the
original petition. The sole claim raised in the amended
petition was that Bausch was ineffective because he
failed ‘‘to properly and competently engage in plea nego-
tiations with the prosecutor on behalf of the peti-
tioner.’’2
The court conducted a habeas trial on January 27,
2014. The petitioner called four witnesses: Attorney
Richard Rubino, the trial prosecutor; Bausch; the peti-
tioner; and Attorney Christopher Duby, the petitioner’s
expert witness. The respondent, the Commissioner of
Correction, did not call any witnesses.
The court first heard from Rubino. He testified that
the state had a very strong case against the petitioner.
As an example, he indicated that the surveillance video
of the robbery showed one of the suspects wearing
sneakers with a very distinctive yellow zigzag design
on the heel, and that that same design was on the sneak-
ers that the petitioner was wearing at the time he was
arrested. Due to the strong case against the petitioner
and his past criminal record, which included prior con-
victions for manslaughter in the first degree and several
other robberies, including a federal bank robbery,3 the
state offered the petitioner a plea deal of twenty years
to serve. According to Rubino, this was the only offer
that was made by the state, although he did speculate
that Judge Gold, who handled the pretrial proceedings
in this matter, would have allowed the petitioner to
argue for somewhere between fifteen and twenty years,
as that was ‘‘normally how he proceeded back then.’’
He recalled that Bausch had sought a deal of six years,
which was something Rubino claimed was ‘‘never going
to be considered’’ either by the state or the court.
Rubino testified that after the twenty year offer was
rejected, no further attempts to reach a plea deal were
made because ‘‘this was one of those cases [that] . . .
was going to trial.’’ He stated in response to a question
by the habeas court that it was highly unlikely that he
would have offered anything less than twenty years
given the severity of the petitioner’s record, nor was it
likely that the trial court would have accepted any deal
that did not include substantial jail time.
Bausch was the second witness called by the peti-
tioner. Bausch testified that, at the time of the petition-
er’s trial, his practice consisted mostly of criminal
defense and immigration matters. Although he had han-
dled between one hundred and one hundred and fifty
criminal cases, they had all ended in plea deals. Until
the present case, he had never argued a case to a jury.
Bausch claimed that he had a good relationship with the
petitioner and that, as someone with a lengthy criminal
record, the petitioner understood the criminal justice
system well, including the process of plea negotiations.
In contrast to Rubino’s testimony, Bausch believed that
the state did not have a strong case against the peti-
tioner because the state lacked any physical evidence,
and he thought ‘‘that [the petitioner] had a really good
chance’’ to win on the robbery charges. Bausch relayed
to the petitioner, however, that he likely would lose on
the charge arising from the high speed car chase with
the police prior to his arrest. He informed the petitioner
that even if he was acquitted on the robbery charges,
he likely would receive a minimum sentence of six
years. According to Bausch, the petitioner instructed
him to get an offer ‘‘as low as you can,’’ but never
specified any exact number or an acceptable range.
On the basis of the petitioner’s age and health issues,
Bausch assumed that the petitioner would not accept
any plea of more than eight years. After the state
rejected Bausch’s proposed six year plea, Bausch made
no counteroffer and relayed to the petitioner that the
case was ‘‘going to trial.’’
According to Bausch, the petitioner never asked him
to go back and negotiate for a plea higher than six
years, never insisted that Bausch reach a plea deal, and
never indicated that he wanted to avoid trial at all costs.
When the petitioner’s habeas counsel asked Bausch if
part of his plea assessment was his desire to try his
first criminal jury case, Bausch responded: ‘‘I’d like to
hope not.’’
After Bausch, the petitioner testified. He acknowl-
edged that during the time he was represented by
Bausch, the two had met and spoken about his case at
least seven or eight times, and that they had discussed
the relative strengths and weaknesses of the case. He
claimed that he told Bausch that he really did not want
to go to trial because of his past criminal history, and
that if Bausch could get him a ‘‘good deal,’’ he would
take it. According to the petitioner, the only plea offer
that Bausch presented to him was for twenty-two years,4
which he understood did not include any right to argue
for less time or any suspended time, probation, or spe-
cial parole. He claimed on direct examination that he
never placed any limits on Bausch regarding the amount
of time he would be willing to consider. He told Bausch
to get him as little time as he possibly could, suggesting
at one point ‘‘maybe ten years.’’ He claimed that he
never asked Bausch to offer only a six year plea, and
that he did not know where that number came from,
stating that he did not believe that the state would have
ever accepted such a plea given his past convictions.
Importantly, he further testified that he would have
accepted a plea of fourteen years if one had been
offered, but he claimed that he never communicated
to Bausch any ceiling on the number of years he would
have agreed to accept.
The last witness to testify was Duby, whom the court
qualified as an expert in the field of criminal practice.
He testified that the state’s case against the petitioner
was ‘‘potent,’’ and that unless the petitioner had insisted
that he wanted to go to trial, a reasonably competent
criminal defense lawyer would have conducted ongoing
plea negotiations throughout the proceedings in an
effort to avoid a trial.
In addition to the aforementioned testimony, the tran-
scripts of the criminal trial were also entered into evi-
dence. A review of those transcripts reveals two pretrial
proceedings during which the status of plea negotia-
tions was discussed on the record. First, at a hearing
on February 5, 2009, the following colloquy occurred:
‘‘The Court: We’ve had some discussions on the case
today, frankly, based on what I see to be the seriousness
of the case and particularly given [the petitioner’s] sig-
nificant prior record, I don’t have any reason to believe
this case is going to be resolved short of trial. You don’t
disagree with that?
‘‘[Bausch]: I don’t disagree with that, Your Honor.
Though it might as we negotiate.
‘‘The Court: It might be. But this is going—it’s a case
in which the state understandably is going to be seeking
a significant period of incarceration. So, I’m going to
put the case on the firm jury list.’’
Later, at a hearing on December 21, 2009, the follow-
ing colloquy occurred:
‘‘The Court: I know the case is on the firm jury list
but trial is going to be starting, I think. Were there ever
formal numbers placed on this? I mean, is this a case
you want to try to resolve or do you want the trial
to start?
‘‘[Bausch]: We had talked about numbers. And the
numbers, Your Honor, then we discussed in chambers,
were too high, Your Honor, for [the petitioner] to be
able to accept. So we’re going to go to trial, Your Honor.
‘‘[Rubino]: We were essentially at a cap5 of twenty
years. And I don’t think it was anything that we put a
floor on or anything like that. But it may have been
that we were talking between—
‘‘The Court: All right. You understand it would be a
right to argue for lesser time. So are the parties ready
to go?’’ (Emphasis added; footnote added.)
After hearing arguments from both counsel, the
habeas court, Mullins, J., indicated that it would take
the petition under advisement and issue a written deci-
sion. The court later issued a memorandum of decision
denying the petition for a writ of habeas corpus.
According to the court, even if the petitioner demon-
strated that Bausch had failed to properly and compe-
tently engage in plea negotiations with the Rubino, the
petitioner had failed to establish that he was prejudiced
by Bausch’s deficient performance. In particular, after
summarizing the habeas trial testimony, the court rea-
soned as follows: ‘‘The petitioner has not demonstrated
that there is a reasonable probability that, but for
[Bausch’s] performance, the plea negotiations would
have resulted in a different outcome in this case. The
evidence adduced at the habeas trial indicates that there
was only one offer made by the state for twenty years
of incarceration, and the petitioner rejected that offer.
The state made no counteroffer after the petitioner
rejected its initial offer. There was no evidence provided
at trial that, in light of the perceived strength of the
state’s case and the petitioner’s extensive criminal
record, the state would have made a lower offer. Indeed,
[Rubino] credibly testified that, based on the petition-
er’s record, he was not going to offer anything less
than the twenty years. Thus, notwithstanding [Bausch’s]
performance, which the court does not condone, the
state was not willing to, and did not, offer anything less
than twenty years and the petitioner was not willing to
accept that offer, which was the only available offer.
Under the circumstances of this case, the petitioner has
not demonstrated prejudice.’’
The petitioner filed a petition for certification to
appeal the court’s judgment, which the habeas court
denied. This appeal followed.
The petitioner initially claims that the court abused
its discretion by denying his petition for certification
to appeal. Specifically, the petitioner argues that
whether he was prejudiced by his counsel’s failure to
competently engage in plea negotiations is a question
‘‘that could have been decided differently by a court
and is debatable among jurists of reason.’’ Because we
disagree, we dismiss the appeal.
We begin by setting forth our well established stan-
dard of review. ‘‘In Simms v. Warden, 229 Conn. 178,
187, 640 A.2d 601 (1994), [our Supreme Court] con-
cluded that . . . [General Statutes] § 52-470 (b) pre-
vents a reviewing court from hearing the merits of a
habeas appeal following the denial of certification to
appeal unless the petitioner establishes that the denial
of certification constituted an abuse of discretion by
the habeas court. In Simms v. Warden, 230 Conn. 608,
615–16, 646 A.2d 126 (1994), [our Supreme Court] incor-
porated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 543–44, 124 A.3d 1, cert. denied, 320
Conn. 910, 128 A.3d 954 (2015).
‘‘[W]e recognize that [a] criminal defendant is consti-
tutionally entitled to adequate and effective assistance
of counsel at all critical stages of criminal proceedings.
. . . Pretrial negotiations implicating the decision of
whether to plead guilty is a critical stage . . . and plea
bargaining is an integral component of the criminal
justice system . . . .’’ (Citation omitted; internal quota-
tion mark omitted.) Daniel v. Commissioner of Correc-
tion, 57 Conn. App. 651, 664, 751 A.2d 398, cert. denied,
254 Conn. 918, 759 A.2d 1024 (2000). ‘‘To succeed on
a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires
that a petitioner satisfy both a performance prong and
a prejudice prong. To satisfy the performance prong, a
claimant must demonstrate that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed . . . by the [s]ixth [a]mendment [to the
United States constitution]. . . . To satisfy the preju-
dice prong, a claimant must demonstrate that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different. . . . The claim will succeed only
if both prongs are satisfied.’’ (Citations omitted; internal
quotation marks omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). It is axiomatic that
courts may decide against a petitioner on either prong,
whichever is easier. Id., 713; see also Strickland v.
Washington, supra, 697 (‘‘a court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant’’).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
Turning to the present case, the habeas court ruled
that even if the petitioner satisfied the performance
prong of Strickland and demonstrated that Bausch had
not engaged in competent plea negotiations with the
state—effectively having ended negotiations after
rejecting the first offer made by the state—the petition-
er’s claim nonetheless failed on the prejudice prong,
because he failed to show how he was prejudiced by
Bausch’s deficient performance. We agree with the
habeas court.
In order to demonstrate prejudice, the petitioner
needed to establish that reasonably competent negotia-
tion likely would have resulted in a better plea offer
than the twenty-one years he was sentenced to follow-
ing trial, and that, had Bausch secured a more favorable
offer, he would have accepted that offer and pleaded
guilty. Although there is some evidence in the record
from which reasonable jurists might have concluded
that a more favorable plea deal was available had
Bausch not so quickly abandoned negotiations, there
is simply no evidence that the petitioner would have
accepted that deal.
The habeas court found Rubino’s testimony credible
that the state had offered a plea deal of twenty years
to serve and that it was highly unlikely that they would
have been open to offering any less than twenty years
even if Bausch had continued to pursue negotiations
given the strength of the state’s case, the petitioner’s
extensive criminal background, and his prior federal
sentence of fifteen years for bank robbery. The notion
that it was likely futile to try to negotiate for a signifi-
cantly lower plea is supported by the testimony of both
trial attorneys and by the trial court’s statement during
pretrial that this was likely a case that would not be
resolved by plea and was going to go to trial. There is,
nevertheless, also some evidence in the record that
had Bausch more aggressively pursued negotiations, he
might have secured an offer of a plea agreement that
included the right to argue for a sentence of less than
twenty years.
We recognize, for example, that it is undisputed from
a review of the transcript of the December 21, 2009
pretrial hearing that, in his colloquy with the trial court
regarding plea negotiations, Rubino stated that they
were ‘‘essentially at a cap of twenty years,’’ but had not
‘‘put a floor on or anything like that,’’ which reasonably
could be viewed as suggesting that the state’s offer of
twenty years had not foreclosed the possibility of a
deal for less prison time. Likewise, the criminal court
seemed to indicate that any deal for twenty years would
include ‘‘a right to argue for lesser time,’’ which is con-
sistent with Rubino’s acknowledgement at the habeas
trial that the trial court likely would have accepted a
deal with a right to argue for as little as fifteen years.
That evidence is somewhat inconsistent with the habeas
court’s factual finding that the state was unwilling to,
and did not, offer anything less than a straight twenty
year plea deal. We nevertheless conclude that any such
factual discrepancy is inconsequential here.
There is simply no evidence in the record that the
trial court would have accepted a plea agreement with
a sentence of twenty years to serve with a right to argue
for less and then would have contemplated imposing
a sentence as low as fourteen years or less to serve. To
hold otherwise on the record before us would amount to
pure speculation, in which we decline to engage. See
Heredia v. Commissioner of Correction, 106 Conn.
App. 827, 833, 943 A.2d 1130, cert. denied, 287 Conn.
918, 951 A.2d 568 (2008). Further, even assuming that
Bausch may have been able to secure an agreement on
behalf of the petitioner that included the right to argue
for a sentence of less than twenty years, that alone does
not establish prejudice without some evidence in the
record that it is reasonably likely that the petitioner
would have accepted such a deal and pleaded guilty
because such an agreement would have permitted the
trial court, in its sentencing discretion, to impose a
sentence of fourteen years. Although the petitioner did
testify that he would have accepted a deal of fourteen
years, he was never asked if he would have accepted
a twenty year deal with the right to argue for less. It
was the petitioner’s burden to establish not only that
he may have secured a more favorable deal absent
Bausch’s deficient performance, but that he would have
taken the deal if it had been offered.6
On the basis of our review of the record, we conclude
that the petitioner has failed to demonstrate that the
issue of whether he was prejudiced by Bausch’s plea
bargaining efforts, or lack thereof, is debatable among
jurists of reason, could be resolved in a different man-
ner, or otherwise deserves encouragement to proceed
further. Accordingly, the habeas court did not abuse its
discretion by denying the petition for certification to
appeal, and we lack jurisdiction to consider the merits
of the present appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The trial transcripts, which were admitted into evidence at the habeas
trial, reveal that the jury reasonably could have found the following facts
underlying the petitioner’s conviction. In 2008, the petitioner and an accom-
plice, Earl Scott, robbed a bank in Bloomfield. The two men, dressed to
conceal their identities and armed with guns, assaulted a security guard
stationed at the bank’s entrance, forcing him into the bank. The petitioner
disarmed the guard and forced him to the ground in the customer area of
the bank, while Scott jumped over the counter and, at gunpoint, forced two
tellers to fill a bag with approximately $18,000 in cash. The petitioner and
Scott then left the bank and fled down a back alley. A witness at a neighboring
business observed the two men running from the bank and getting into a
silver vehicle. She was able to take note of the vehicle’s license plate number.
The police, who arrived shortly after the robbery, were able to identify the
owner of the getaway vehicle from the plate number provided by the witness
and to obtain an address. The police staked out the owner’s address and,
as a result, arrested Scott as he was leaving. During that arrest, the petitioner
arrived in the silver getaway car. The police ordered him to stop, but the
petitioner drove off, leading to a high speed chase. The petitioner eventually
crashed the vehicle and was apprehended by the police. Through their
investigation, the police were able to match footprints left on the bank’s
counter to sneakers worn by Scott. Further, surveillance video from the
bank showed that a logo on the sneakers worn by the petitioner was consis-
tent with one on the sneakers worn by the robber who had not jumped
over the counter. Cell phone records indicated that the two suspects had
called each other numerous times just prior to the robbery. Finally, the
owner of the vehicle and the petitioner lived together, and the owner had
given the petitioner permission to use the car on the morning of the robbery.
2
To the extent that the petitioner now seeks to argue on appeal that
Bausch was ineffective because he failed to convey accurately the terms of
the state’s or the court’s plea bargain offer, that issue was not raised in the
operative amended petition, nor was it argued and decided by the habeas
court. We will not address a claim raised for the first time on appeal as this
would amount to an ambush of the habeas court, which could not have
abused its discretion in denying his petition for certification to appeal as it
relates to an issue that was not properly raised. See Hankerson v. Commis-
sioner of Correction, 150 Conn. App. 362, 369–70, 90 A.3d 368, cert. denied,
314 Conn. 919, 100 A.3d 852 (2014).
3
Although the state filed a part B information alleging that the petitioner
was a persistent offender, it later withdrew it.
4
The petitioner was present and heard both Bausch’s and Rubino’s testi-
mony that the only offer by the state was for twenty years. When petitioner’s
habeas counsel pointed out the discrepancy to the petitioner, he nevertheless
insisted that the only deal he had been made aware of was a twenty-two
year plea deal. The twenty year figure testified to by the attorneys, however,
is supported by other evidence in the record. Specifically, twenty years is
the number mentioned at a December 21, 2009 pretrial hearing before Judge
Gold, as set forth later in this opinion.
5
In plea bargaining parlance, a ‘‘cap’’ represents a maximum possible
prison term that a defendant agrees the court may impose, at its discretion,
as part of the plea agreement, but that the defendant is entitled to argue at
sentencing that the court should impose less than the maximum sentence.
See State v. Anderson, 220 Conn. 400, 405, 599 A.2d 738 (1991).
6
We note that the petitioner was present in court when the trial court
indicated that he might secure a deal of twenty years with a right to argue
for less.