Ambrose v. Commissioner of Correction

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MARK AMBROSE v. COMMISSIONER
OF CORRECTION
(AC 38229)
DiPentima, C. J., and Mullins and Foti, Js.
Argued October 24—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Richard H. Stannard III, assigned counsel, with
whom, on the brief, was John Drapp III, assigned coun-
sel, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and David M. Carlucci, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Mark Ambrose,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, he claims that the court (1) abused its discretion
by denying his petition for certification to appeal and
(2) improperly concluded that the performance of his
criminal trial counsel was not deficient. We dismiss
the appeal.
The following facts and procedural history are rele-
vant to our discussion. On May 11, 1995, the state
charged the petitioner with felony murder in violation
of General Statutes § 53a-54 (c) and assault in the first
degree in violation of General Statutes § 53a-59 (a) (1).
On June 7, 1996, the petitioner appeared before the
court, J. Kaplan, J., to enter guilty pleas to these
charges.1 After some discussion, the court accepted the
petitioner’s guilty pleas. Following the petitioner’s con-
viction, on August 1, 1996, the court imposed a total
sentence of sixty years incarceration, from which the
petitioner did not appeal.
During the plea proceedings, the prosecutor set forth
the following factual bases underlying the charges
against the petitioner. ‘‘On May 10, 1995, approximately
twelve noon, the [petitioner] entered the Gold & Dia-
mond Exchange, which is a jewelry store in the town of
Ellington. He entered with the intent to commit robbery
therein. . . . Inside the store at that time were the pro-
prietor, Raymond Roy, and a jewelry salesman named
Elli Parzivan. After being in the store for some time and
after being shown—at his request—several diamond
rings, [the petitioner] removed a—small caliber . . .
pistol from his person, indicated to the occupants that
this was a robbery [and] ordered them to get down
behind the jewelry cases.’’
‘‘[The petitioner] then vaulted the jewelry cases,’’ and
‘‘pointed his gun at Mr. Parzivan and shot Mr. Parzivan
through the head. The [petitioner] was approximately
three to five feet away from Mr. Parzivan when he shot
him. [The petitioner] then turned toward Mr. Roy and
shot Mr. Roy in the face. Mr. Roy was moving at that
time, and although [the petitioner] shot him in the face,
he was able to survive his injuries after surgery at Hart-
ford Hospital.
‘‘Mr. Parzivan, however, was taken also to Hartford
Hospital and died the following day, on May 11, 1995.
The autopsy indicated that the cause of death was a
gunshot wound to the head.
‘‘The [petitioner]—after shooting both individuals—
then removed several trays of diamond rings from . . .
a jewelry case, leaving a latent fingerprint on top of
that case. He also removed many loose diamonds from
a desk nearby. He put all of these items into a bag and
fled the jewelry store.
‘‘He was chased outside of the store by Mr. Roy, who
had armed himself with his own pistol. Mr. Roy then
proceeded to discharge approximately seven bullets
toward [the petitioner] and the vehicle that [the peti-
tioner] was climbing into. Mr. Roy was able to shoot
out the rear windshield as well as the left, rear driver’s
side window. He also shot [the petitioner] in the elbow.
‘‘[The petitioner], nonetheless, was able to flee the
scene, and he was stopped ultimately on Interstate 91
in the town of either Windsor or Bloomfield at exit 36
by the state police. This [was] approximately one-half
hour to three-quarters of an hour after the incident
itself. [The petitioner] at that time was taken into
custody.
‘‘Found inside the vehicle was the pistol which he
used, along with the jewelry which had been stolen,
and a video camera which he had also removed from
the scene. The bullet taken from Mr. Parzivan’s head
was later matched up to the pistol, which was found
inside [the petitioner’s] vehicle.
‘‘[The petitioner] was treated for his own injuries at
Hartford Hospital and released at about 5 p.m. that
same day. He thereafter was transported to [the state
police] Troop C [barracks] in Tolland where he gave a
several-page inculpatory statement regarding his
actions and his involvement in the offenses earlier
that day.’’
In March, 2013, the petitioner commenced the present
habeas action. On March 6, 2015, the petitioner filed
an amended petition for a writ of habeas corpus. In
that petition, he alleged that his criminal trial counsel,
Phillip N. Armentano, rendered ineffective assistance
of counsel. Specifically, the petitioner argued that Arm-
entano was ineffective for failing (1) to place on the
record the state’s first plea offer involving a forty year
sentence; (2) to argue that the petitioner should be
allowed to accept the state’s first plea offer; and (3) to
argue that the state unlawfully withdrew the first plea
offer without allowing the petitioner to accept the offer
within the agreed upon time frame in violation of Santo-
bello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed.
2d 427 (1971).2 Following a trial held on July 2, 2015,
the habeas court, Fuger, J., denied the petition for a
writ of habeas corpus and subsequently denied the peti-
tion for certification to appeal. This appeal followed.
We first set forth the standard of review we apply to
a claim that the habeas court abused its discretion by
denying a petition for certification to appeal from the
judgment denying a petition for a writ of habeas corpus.
See Parker v. Commissioner of Correction, 169 Conn.
App. 421, 422, A.3d (2016). ‘‘Faced with a habeas
court’s denial of a petition for certification to appeal,
a petitioner can obtain appellate review of the dismissal
of his petition for habeas corpus only by satisfying the
two-pronged test enunciated by our Supreme Court in
Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),
and adopted in Simms v. Warden, 230 Conn. 608, 612,
646 A.2d 126 (1994). First, [the petitioner] must demon-
strate that the denial of his petition for certification
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must
then prove that the decision of the habeas court should
be reversed on the merits.’’ (Internal quotation marks
omitted.) Melendez v. Commissioner of Correction, 151
Conn. App. 351, 357, 95 A.3d 551, cert. denied, 314 Conn.
914, 100 A.3d 405 (2014). To prove that the denial of
his petition for certification to appeal constituted an
abuse of discretion, ‘‘the petitioner must demonstrate
that the [resolution of the underlying claim involves
issues that] 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 encourage-
ment to proceed further.’’ (Internal quotation marks
omitted.) Moye v. Commissioner of Correction, 168
Conn. App. 207, 214, 145 A.3d 362 (2016).
After careful review of the record and the briefs, the
arguments of the parties, and the habeas court’s oral
decision, we conclude that the petitioner has failed to
prove that the court abused its discretion in denying
the petition for certification to appeal.
The appeal is dismissed.
1
The petitioner alleges that the guilty plea he entered was on the second
plea offer the state made. According to the petitioner, the state’s second
plea offer required him to plead guilty by substitute information to one
count of felony murder in violation of § 53a-54 (c) and one count of assault
in the first degree in violation of § 53a-59 (a) (1). In exchange for the
petitioner’s guilty plea, the state would recommend that the court impose
a sentence of fifty years to serve for the offense of felony murder and a
consecutive ten years to serve for the offense of assault in the first degree,
for a total effective sentence of sixty years to serve. The petitioner contends
that, under the first plea offer, he would have pleaded guilty to the same
offenses as in the state’s second plea offer, but the state would recommend
that the court impose a sentence of forty years to serve for the offense of
felony murder and twenty years to serve concurrently for the offense of
assault in the first degree, for a total effective sentence of forty years to serve.
2
In Santobello v. New York, supra, 404 U.S. 262, the United States Supreme
Court stated: ‘‘[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.’’