STATE OF NEW JERSEY v. WAYNE D. COLE

(NOTE: The status of this decision is published.)
Original Wordprocessor Version
(NOTE: The status of this decision is published published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1043-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE D. COLE,

Defendant-Appellant.
___________________________________________________________

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December 14, 2005

Submitted November 10, 2005 - Decided

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Ind. No. 94-02-0186.

Yvonne Smith Segars, Public Defender, attorney
for appellant (William Welaj, Designated Counsel,
of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wayne D. Cole appeals from an order dated August 10, 2004, denying his petition for post-conviction relief (PCR). We affirm.
As a result of events that took place during the evening of December 23, 1993, and morning of December 24, 1993, at the Jade East Motel in South Hackensack, a Bergen County Grand Jury returned an indictment charging defendant with committing seventy separate offenses. Defendant went to trial in January 1996, and a jury found him guilty of sixty-three of the seventy counts contained in the indictment. At sentencing on May 2 1996, defendant received an aggregate 123-year term with 52 years of parole ineligibility.
Defendant appealed, and we reversed and remanded for a new trial. We summarized the events that took place on December 23 and December 24, 1993, as follows:

Defendant and [T.A.], with whom he had a romantic relationship, lived together, along with [T.A.'s] children, in a motel in South Hackensack. Defendant, who was using the name Shawn Johnson at the time, earned money doing odd jobs around the motel.

Commencing at approximately 3:30 p.m. on December 23, 1993, defendant began drinking with two co-workers. Defendant purportedly consumed approximately one-half gallon of wine and also shared some Jack Daniels with the other two men over a period of one and one-half hours. Defendant then returned to his room in the motel where he became involved in an argument with [T.A.]. During the argument, he hit [T.A.] in the face, causing her to sustain two black eyes. [T.A.] later described defendant as being "drunker" than she had ever seen him before.

Defendant left the room and [T.A.] called one of defendant's co-workers and asked him to call the police. Instead of calling the police, the co-worker attempted to reason with defendant. During the conversation, he learned that defendant was on his way to his cousin's room to get a gun. The co-worker then asked the manager of the motel to call the police. The co-worker saw defendant again on his way back to the room with a gun in his hand. When he asked defendant why he was acting in this manner, defendant replied that he did not have enough money to buy presents for the children. While the co-worker and defendant were speaking, the police arrived. When defendant saw the police, he returned to his room and barricaded the door with a dresser. The co-worker was later to opine that defendant was "drunk or intoxicated at the time."

When police officers Veprek and Ulliana approached defendant's room, they could hear a woman screaming along with the sounds of children crying. Defendant refused to open the door in response to the police officers' demand. Officer Veprek forced the door open a bit and was able to place his foot into the room. He saw defendant holding [T.A.] in front of his body as a shield with his left arm around her neck. The two children were crying and standing next to defendant. Defendant, who was holding a black semi-automatic handgun, pointed it at Veprek and Ulliana and fired four shots at the officers in quick succession. Neither officer was struck by the bullets. The police officers withdrew and were joined subsequently by four officers from the Little Ferry Police Department.

Over a period of several hours, defendant appeared at the window of the motel room holding [T.A.] as a shield in front [of] him, with his left arm around her neck and a black semi-automatic gun to her head. On several other occasions, defendant was observed at the window holding either M.A. or S.A. by the waist in front of him, with a gun to the child's head. On one occasion when he came to the window, defendant fired two shots in the direction of Officers Kral and Anzalone, and also fired a shot in the direction of Officers Hofmann and Callahan. None of the officers were hit.

The Bergen County SWAT Team arrived, and Lieutenant James Spahr began negotiations with defendant. Defendant informed Spahr that if anyone came to the room, defendant, [T.A.] and the children would "come out in body bags." Subsequently, Spahr was able to get defendant to agree to release the children, but when the time came to do so, defendant reneged.

Defendant attempted to escape, with [T.A.] and the children, by entering an adjoining room through the ceiling. When they arrived in the room, defendant cut a hole in the wall into another adjoining room. [T.A.] claimed that after they entered into the second room, defendant "started to calm down off the liquor" and began to realize that he was in trouble with the police. [T.A.] attempted to convince defendant to surrender, but he refused to do so. When the police learned where defendant was, they attempted to enter the room by forcing the door open. In the process, defendant fired one shot from inside the room, which exited a glass panel just three inches from the door knob. Fortunately, the bullet missed hitting two officers by inches.

Negotiations resumed again, but defendant reiterated his threat to kill anyone who tried to get into his room. Defendant later told Spahr that he wanted to surrender, but he asked to spend the night in the room with [T.A.] and the children. Spahr convinced defendant to agree to surrender at 7:00 a.m. As an added condition, defendant requested that a black police officer be present at the time of surrender. That condition was met, and Spahr instructed defendant to send the children out of the room first, followed by [T.A.] and then himself. Spahr also instructed defendant to leave his gun in the room.

At approximately 7:55 a.m. on December 24, the two children walked out of the motel room and were escorted to safety by the police. Almost immediately thereafter, [T.A.] exited the room. Defendant, however, disobeyed instructions and came out directly behind her, walking almost right next to her. Defendant was otherwise calm and cooperative.
 
Defendant was arrested, given his Miranda warnings, and transported to police headquarters.

Defendant's trial attorney was Hyman Dechter, a member of the New York bar, who was admitted pro hac vice. Scott Finckenauer, a member of the New Jersey bar, was defendant's New Jersey counsel and Dechter's pro hac vice sponsor. Defendant's defenses were insanity, diminished capacity, and/or intoxication. We reversed defendant's conviction and remanded for a new trial after finding that "defendant was denied effective assistance of counsel, and that his right to a fair trial was prejudiced by counsel's deficient performance." We also concluded "that defendant was . . . prejudiced by the open hostility and embattled atmosphere in the courtroom."
On March 1, 2000, following our remand, defendant entered guilty pleas to first-degree kidnapping (count one), second-degree endangering the welfare of a child (count seven), and five counts of first-degree attempted murder (counts nine, fourteen, nineteen, twenty-nine and thirty-nine). Pursuant to the plea agreement, the State agreed to recommend a maximum sentence of forty years imprisonment with twenty years of parole ineligibility and to request the dismissal of all of the remaining charges at the time of sentencing.
The plea papers signed by defendant indicate that he understood the charges against him, and that by pleading guilty, he was giving up his right to a trial, his right to remain silent, and his right to confront the witnesses against him. The plea papers also indicate that defendant committed the offenses to which he was pleading guilty, that he was satisfied with the advice he received from his attorney, and that he did not have any questions concerning his guilty pleas.
At the plea hearing on March 1, 2000, defendant was asked a series of questions by the court, which included the following:
Q. You've gone over this plea with your attorney?

A. Yes.

Q. Do you understand the consequences of your plea?

A. Yes.

Q. You've discussed those with your attorney?

A. Yes, your Honor.

Q. Has Mr. [Finckenauer] answered all your questions related to this matter?

A. Yes.

Q. Are you satisfied with the services Mr. [Finckenauer] has rendered to you in this matter?

A. Yes.

. . . .

Q. Now, you understand that by pleading guilty you are admitting the truth of the charges to which you are pleading guilty?

A. Yes, your Honor.

Q. And you understand that by pleading guilty you were waiving all the rights you and I have gone through as well as all the rights on the plea form?

A. Yes, your Honor.

Q. Now, I have a plea form in front of me and Mr. [Finckenauer] has a copy there in front of him.

Did you initial pages 1 and 2? Sir, did you initial pages 1 and 2?

A. Yes sir.

Q. Did you sign the third page?

A. Yes, sir.

Q. How far have you gone in school?

A. 12th grade.

Q. And you can read and write English?

A. Yes.

Q. You've also had the advice of your attorney with regard to the form?

A. Yes.

Q. Who answered the questions? I'm not talking about who did the writing. Who answered the questions?

A. I answered the quiz.

Q. And Mr. [Finckenauer] did the writing?

A. Yes.

Q. And you checked that Mr. [Finckenauer] circled the answers you told him to circle?

A. Yes.

Q. Did you answer all the questions correctly?

A. Yes, sir.

Q. You checked that Mr. [Finckenauer] put everything in properly?

A. Yes.

Q. Are you satisfied everything on this form is correct and accurate?

A. Yes, sir.

Q. Did anyone make any threats or put you under duress to enter this plea?

A. No, sir.

Q. This is a free and voluntary act on your part?

A. Yes.

Q. For the record, I've had this matter now since last summer, approximately, and you understand we were trying to get a trial date for you but you wanted certain materials and records. Do you understand?

A. Yes.

Q. And entering this plea is something that you now want to do?

A. Yes, sir.

Q. Has anyone made any promises to you as to your sentence other than what was stated by the attorneys on the record or as set forth in the plea form?

A. No, sir.

Q. What do you understand the plea agreement to be?

A. A maximum of 40 years with a minimum parole ineligibility of 20 years.

Q. Did anybody promise you anything else?

A. No, sir.

Q. And you want to go forward with this plea, sir?

A. Yes, sir.

Defendant was then asked by his attorney if he remembered that his girlfriend, [T.A.], had testified at his trial that at some point she wanted to leave the motel room, but he had prevented her from leaving. Defendant answered: "Yes, she testified to that," but he also indicated he disputed that fact. The Assistant Prosecutor then stated:
This was an 8 or 12 hour situation where he dragged her through a crawl space from one room to another. She was not allowed to leave.

I have a [videotape] of Mr. Cole holding her around her neck with a gun to her head. I have that on [videotape].

If he doesn't recall because he was suffering -- because he was drunk or whatever, that's fine. If he wants to stipulate that and accept our representation as to the facts I have no problem with that, but for him to say it didn't happen, I'm not taking a plea.

After defendant conferred with his attorney, the following colloquy took place:
BY MR. [FINCKENAUER (defendant's attorney)]:

Q. Mr. Cole, at this point you've had some further recollection as to what [T.A.'s] testimony was at trial?

A. Yes.

Q. And do you dispute the fact that at some point [T.A.] wanted to leave that room and you prevented her from leaving that room?

A. No.

Q. And she did not leave that room until the police arrived --

MS. BAGLIVI [Assistant Prosecutor]:

They negotiated a release. So she wasn't released prior to apprehension.

Q. And [T.A.] left when you left?

A. Correct.

BY THE COURT:

Q. What you are saying is you don't have a recall of her asking you.

Were you intoxicated at this time?

A. Yes, your Honor.

After defendant provided a factual basis for the remaining charges, he was questioned regarding his diminished capacity or intoxication defense, and whether there were any other issues that he wanted his attorney to pursue?
BY MR. [FINCKENAUER]:

Q. Mr. Cole, you and I discussed the possibility in this case [of] raising either a diminished capacity defense or intoxication defense?

A. Yes.

Q. And we discussed what impact that would have on certain charges and how it may affect the outcome of the trial?

A. Yes.

Q. And at this time you desire to waive those defenses and enter into the plea agreement we've reached here?

A. Yes.

MR. [FINCKENAUER]: Thank you.

THE COURT: Do you have any other issues you think should have been pursued by your attorney?

THE DEFENDANT: No.

The court found that there was a factual basis for the plea, and that defendant had knowingly, intelligently, and voluntarily entered into the plea. "For a plea to be knowing, intelligent, and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2).
On March 29, 2000, defendant received a sentence that was consistent with his negotiated plea. Defendant was sentenced to an aggregate term of forty-years imprisonment with twenty years of parole ineligibility (two consecutive twenty-year terms, each with ten years of parole ineligibility for first-degree attempted murder as alleged in counts nine and fourteen of the indictment). The trial court imposed concurrent sentences on the remaining convictions, including kidnapping.
Defendant appealed and on January 18, 2001, we considered the matter on a sentencing calendar pursuant to R. 2:9-11. Defense counsel argued that defendant's guilty plea should be vacated because there had been an insufficient factual basis given at the time of the guilty plea. In addition, defendant's attorney argued that the sentence was excessive. We determined that there was "an adequate factual basis for the plea given," and that there was "no abuse of discretion in the sentence imposed." Accordingly, defendant's sentence was affirmed.
In defendant's subsequent petition for post-conviction relief (PCR), he alleged that he failed to receive adequate legal representation because his attorney, Scott Finckenauer, was a potential witness, and he also claimed that his plea lacked a sufficient factual foundation. In an amended PCR petition filed by counsel, defendant maintained that Finckenauer should have recused himself from the case because he was a potential witness who may have been called to testify at a retrial. The trial court concluded that any potential conflict involving defendant's attorney was "more illusory than real," and that defendant's plea had been freely and voluntarily entered. Accordingly, defendant's PCR petition was denied in its entirety.
On this appeal, defendant makes the following arguments:
POINT I
 
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, AND THAT HIS GUILTY PLEAS WERE INVOLUNTARY IN NATURE AS WELL AS LACKING AN ADEQUATE FACTUAL BASIS.

A. FACTUAL INTRODUCTION.

B. THE PREVAILING LEGAL PRINCIPLES REGARDING PETITIONS FOR POST CONVICTION RELIEF, INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AND EVIDENTIARY HEARINGS.

C. THE PREVAILING LEGAL PRINCIPLES REGARDING GUILTY PLEAS AND CONFLICTS OF INTEREST.

D. THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BASED UPON A CONFLICT OF INTEREST, WHICH RESULTED IN A GUILTY PLEA THAT WAS NOT VOLUNTARY IN NATURE.

E. THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HIS GUILTY PLEAS WERE INVALID AS LACKING AN ADEQUATE FACTUAL BASIS.

POINT II
 
THE DEFENDANT WAS NOT PROCEDURALLY BARRED FROM RAISING THE CONTENTION THAT HIS GUILTY PLEA WAS NOT VOLUNTARY IN NATURE PURSUANT TO THE PROVISIONS OF RULE 3:22-4.

POINT III
 
THE DEFENDANT WAS NOT PROCEDURALLY BARRED FROM RAISING THE CONTENTION THAT HIS GUILTY PLEA LACKED AN ADEQUATE FACTUAL BASIS PURSUANT TO RULE 3:22-5.

We have considered each of these arguments in light of the record, the briefs filed, and the applicable law, and we are satisfied that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We agree with the trial court's determination that any potential conflict involving defendant's attorney was "more illusory than real."
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Affirmed.




A-1043-04T4