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Lewis v. Commissioner of Correction

Court of Appeals of Connecticut

May 10, 2016

NORMAN LEWIS
v.
COMMISSIONER OF CORRECTION

Argued February 1, 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).

DIPENTIMA, C. J., AND KELLER AND PRESCOTT, JS.

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 sentenced 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 robbery. 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 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 for twenty-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 ...


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