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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 53a8 (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 sentenced the defendant to a total effective term of twentyone 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 robbery. The petitionerlater 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 negotiations with the prosecutor on behalf of the petitioner.’’2

The court conducted a habeas trial on January 27,

2014. The petitioner called four witnesses: Attorney

Richard Rubino, the trial prosecutor; Bausch; the petitioner; 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 sneakers 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 convictions 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 petitioner. Bausch testified that, at the time of the petitioner’s trial, his practice consisted mostly of criminal

defense and immigration matters. Although he had handled 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 petitioner 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 acknowledged 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 fortwenty-two years,4

which he understood did not include any right to argue

for less time or any suspended time, probation, or special 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 transcripts of the criminal trial were also entered into evidence. A review of those transcripts reveals two pretrial

proceedings during which the status of plea negotiations 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] significant 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 following 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 decision. 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 demonstrated that Bausch had failed to properly and competently 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 reasoned 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 petitioner’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 standard of review. ‘‘In Simms v. Warden, 229 Conn. 178,

187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents 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] incorporated 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 appropriate standard for determining whether the habeas

court abused its discretion in denying certification to

appeal. This standard requires the petitioner to 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. . . . A

petitioner who establishes an abuse of discretion

through one of the factors listed above must then demonstrate 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 reasonably determined that the petitioner’s appeal was frivolous.’’ (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 constitutionally 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 quotation mark omitted.) Daniel v. Commissioner of Correction, 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 prejudice prong, a claimant must demonstrate that there is

a reasonable probability that, but for counsel’s unprofessional 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 petitioner’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 negotiation likely would have resulted in a better plea offer

than the twenty-one years he was sentenced to following 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 significantly 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 consistent 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 somewhatinconsistent 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 manner, 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 accomplice, 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 consistent 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. Commissioner 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 testimony 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.