STATE OF NEW JERSEY v. GREGORY W. THOMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4198-03T44198-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY W. THOMPSON,

Defendant-Appellant.

__________________________________

 

Submitted October 31, 2005 - Decided November 18, 2005

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County,

97-07-0387.

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

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Gregory W. Thompson, appeals from a dismissal of his petition for post conviction relief (PCR). We affirm. The relevant facts and procedural history are substantially undisputed.

On July 24, 1997, a Gloucester County Grand Jury returned Indictment No. 97-07-387, charging defendant with committing first-degree armed robbery, N.J.S.A. 2C:15-1, in February 1997. On September 4, 1997, defendant was charged under a second Gloucester County Indictment, No. 97-09-496, with first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One) and complicity to commit a first-degree armed robbery, N.J.S.A. 2C:2-6 (Count Two), arising out of an incident occurring on March 16, 1997. On May 5, 1998, a Gloucester County Grand Jury returned Indictment No. 98-05-344, charging defendant with second-degree armed robbery, N.J.S.A. 2C:15-1 (Count One), of Joseph Dunn on January 8, 1998; along with terroristic threats, N.J.S.A. 2C:12-3A (Count Two); and tampering with a witness, N.J.S.A. 2C:28-5a(2) (Count Three). On February 2, 1999, a Burlington County Accusation No. B-99-02-98-A was filed against defendant charging him with second-degree robbery of Ruth Chicosky on February 27, 1998.

On February 2, 1999, defendant pled guilty to the two indictments charging him with first-degree armed robbery and the second-degree robberies of Joseph Dunn and Ruth Chicosky. Under the terms of the plea agreement, the State would recommend that defendant be sentenced to a fifteen-year term of incarceration with four years parole ineligibility on each first-degree robbery, to run consecutively to each other. On each of the second-degree robbery charges, the State would recommend a seven-year term to run concurrently with one another and concurrently with the aggregate thirty-year term on the first-degree offenses. All remaining charges would be dismissed at the time of the sentence.

At the plea hearing on February 2, 1999, defense counsel recited the terms of the plea agreement to the judge in the presence of defendant. Defense counsel stated to the court that defendant was pleading guilty to two first-degree robberies and two second-degree robberies. The first-degree robberies were simulated weapons offenses. The cumulative term was thirty years with eight years of parole ineligibility. In direct response to the judge's question, defense counsel confirmed that the sentence was two fifteen-year consecutive terms with four years parole ineligibility on each. Counsel also acknowledged that the seven-year terms on each second-degree robbery offense were to run concurrently with the first-degree robbery sentences and concurrently with each other. Defendant responded to the judge's questions, stating that he understood the deal, entered into it voluntarily, no other promises were made, nobody coerced him, and that he had discussed it with his counsel. In response to the judge's question, he also acknowledged that although he would have liked to have gotten a better plea agreement and thought the State could be a little more generous, he believed it was a fair way to resolve the matter on his behalf because he was aware of what he was facing if convicted.

Prior to sentencing, defendant moved to withdraw his plea. At a hearing held on July 23, 1999, defense counsel testified that defendant did not sign the second page of the plea agreement, which called for a cumulative sentence of thirty years with an eight-year parole disqualifier. Defense counsel also testified that he did prepare a different second page of the plea agreement, which indicated that the cumulative sentence would be twenty-seven years with a seven-year stipulation. Defense counsel further stated that he believed defendant did initial that second page. Defense counsel testified that he did discuss the terms of the plea agreement, specifically the thirty-year term of incarceration with the eight-year disqualifier sentence, with defendant and defendant agreed to it. He also testified that the State rejected his proposal for a twenty-seven year term with a seven-year parole disqualifier.

Defendant testified at a hearing that he believed the deal was for a twenty-seven year term with a seven-year parole disqualifier. Defendant did not sign the second page that referenced the longer term but signed the second page calling for a sentence of twenty-seven years with a seven-year period of parole ineligibility. He claimed that his attorney told him that he could get the twenty-seven year term with a seven-year recommendation. On cross-examination, defendant testified that he thought the deal was structured with a twelve-year term and three years of parole ineligibility on one of the first-degree offenses and a fifteen-year term with four years of parole ineligibility period on the other.

Following the testimony, defendant argued that the factual basis provided by defendant on the Burlington County second-degree robbery was deficient, in that it did not establish the elements necessary for it to be accepted as a second-degree robbery. The State conceded that the factual basis for the Burlington County Accusation was, as described by the judge, "on the edge of marginality." Defense counsel agreed that amending the plea agreement by dismissing the Burlington County charge would not affect the plea agreement and would benefit defendant.

The judge acknowledged that during the initial plea colloquy with defendant he did not directly ask defendant if he understood the terms of the plea agreement in that it was a "15 do 4, 15 do 4, [a total of 30] do 8." As to the Burlington County charge, the judge pointed out:

Now, we have a technical deficiency, which would inure to the defendant's benefit if the Burlington County prosecutor's office said, no, we're not happy with that . . . we won't dismiss, then under those circumstances I feel that notwithstanding the fact that this is sort of a throw-in charge, nevertheless, an offense is an offense is an offense and I would be obligated under those circumstances to vacate the plea agreement.

On the date scheduled for sentencing, the State moved to dismiss the Burlington County Accusation, thus amending the plea agreement to defendant's benefit and rendering the issue of the factual basis for that charge moot. The judge dismissed the Accusation, amended the plea agreement, and vacated defendant's plea to the second-degree robbery of Ruth Chicosky. The judge then denied defendant's application to withdraw his plea based upon the assertion that it was not voluntary and knowingly entered into because he was mislead into believing that he would receive a twenty-seven-year term with a seven-year parole disqualifier. The judge found that there was "[n]o doubt in [his] mind" based on the plea proffer and the collective record, including the testimony of counsel, that defendant knew that the deal was thirty years with an eight-year stipulation. The judge then sentenced defendant to two consecutive fifteen-year terms with a four-year period of parole ineligibility on each and a seven-year concurrent term on the second-degree robbery of Joseph Dunn.

Defendant appealed and the matter was placed on our sentencing calendar. R. 2:9-11. On June 28, 2000, we affirmed the sentence imposed and the judge's order denying defendant's motion to withdraw his plea. On April 12, 2001, defendant's motion to change his custody status was denied. We affirmed the order denying a change in defendant's custody status on March 13, 2002.

Defendant filed his petition for PCR on October 15, 2002. Following argument on defendant's petition, the PCR judge denied defendant's application for an evidentiary hearing, and this appeal followed. On appeal, defendant raises the following points:

POINT I

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY AT THE PLEA HEARING ON FEBRUARY 2, 1999.

POINT II

THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

A. Appellate counsel was ineffective for failing to argue that the factual statements set forth by the Appellant at his plea hearing did not support the robbery convictions.

B. Appellate counsel was ineffective for failing to argue that the Appellant's due process rights were violated by the State and the Trial Court by unilaterally changing the terms of his plea agreement at the time of the sentence.

In a supplemental pro se brief, defendant essentially makes the same arguments claiming that he received ineffective assistance of counsel, was misled into entering the plea agreement, did not agree to the amendment, and should have been permitted to withdraw his plea.

Defendant first contends that he received ineffective assistance of counsel at his plea hearing because he was misled into believing that he would receive the twenty-seven year term with seven years of parole ineligibility. He asserts that his plea was not entered knowingly and voluntarily. PCR is precluded where the issue is substantially equivalent to that previously decided on direct appeal. R. 3:22-5; State v. Afanador, 151 N.J. 41, 51 (1997). We addressed these issues on direct appeal when we affirmed the judge's denial of defendant's motion to withdraw his plea based upon defendant's assertion that he did not understand or agree to the aggregate thirty-year term with eight years of parole ineligibility. Thus, our holding on direct appeal affirming the denial of defendant's motion to withdraw his plea precludes defendant from meeting the second prong of the ineffective assistance of counsel test that the challenged testimony would probably have changed the result. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). It also is dispositive on defendant's pro se contention that he was misled and should accordingly be permitted to withdraw his plea.

We consider next defendant's claims that he received ineffective assistance of appellate counsel. Defendant first asserts that he did not provide an adequate factual basis on the remaining charges. He contends that his testimony at the plea hearing that he placed his hand in his pocket to give the victim the idea that he had a gun when he demanded money was not sufficient to establish a factual basis for armed robbery. We disagree.

An actual weapon need not be possessed so long as there is at least some simulation of the possession of a weapon. State v. Hutson, 107 N.J. 222, 228 (1987). A finger or hand in a pocket is a sufficient object if held in a manner to cause a victim to believe that the perpetrator has a weapon. State v. LaFrance, 224 N.J. Super. 364, 372-73 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583, 595 (1990). Here, defendant's testimony at the plea hearing was sufficient to lead to the conclusion that he used his hand to simulate a gun in his pocket, thus satisfying the statutory requirement for the first-degree robbery offenses.

Likewise, contrary to defendant's argument on appeal, we are satisfied that he provided an adequate factual basis for the second-degree robbery of Joseph Dunn. Defendant testified that he approached Dunn, a person he never saw before, and stated, "[g]ive me your money," in what he described was a "strong type of tone . . . [not] begging or panhandling, that's for sure." Dunn responded by giving defendant his wallet. Defendant answered, "I'm sure" when asked whether it was something that Dunn did not want to do.

A guilty plea that is entered voluntarily may not be withdrawn, except pursuant to a trial judge's discretion. State v. Smullen, 118 N.J. 408, 416 (1990) (citing State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975).

When a plea is entered into pursuant to a plea bargain, the defendant has a heavier burden to present a plausible basis to withdraw his plea. Smullen, supra, 118 N.J. at 416 (citing Huntley, supra, 129 N.J. Super. at 18). A trial judge should weigh particular policy considerations when determining whether to permit a plea to be withdrawn. State v. Herman, 47 N.J. 73, 76-77 (1966). Where a defendant does not understand the material terms and relevant consequences of a plea, a defendant should be permitted to withdraw the plea. Smullen, supra, 118 N.J. at 417. If a motion to withdraw is filed on what appears to be "a whimsical change of mind," then an entered plea should not be disturbed. State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). In exercising this discretion, "the important interest of finality to pleas" should be considered. Smullen, supra, 118 N.J. at 416. As noted in State v. Mitchell, 126 N.J. 565, 577 (1992):

Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.

Although we would have preferred a more thorough factual colloquy at the plea hearing, we are satisfied from defendant's testimony that he said, "give me your money" in "a strong type of tone," that he was not "begging or panhandling" provided a sufficient factual basis. See State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). In our minds, the words used by defendant demanding money were said in a way to "purposely put the victim in fear of immediate bodily injury." Ibid. That being said, we are also convinced that, had appellate counsel argued the lack of a factual basis for second-degree robbery, the result would not have been different because defendant would have failed to present a plausible basis to withdraw his plea.

 
Finally, defendant argues that the dismissal of the Burlington County Accusation represented an amendment to the plea agreement which, if argued by appellate counsel, would have resulted in permitting him to withdraw. Simply stated, defendant's argument is specious. Defendant benefited from the dismissal of the Burlington County Accusation. The dismissal did not impinge upon his due process rights. Appellate counsel "is not obligated to raise issues or advance arguments which are obviously frivolous or specious" nor is counsel "expected to stultify" himself in an attempt to advance his client's interests. State v. Hughes, 128 N.J. Super. 363, 369 (App. Div.), certif. denied, 66 N.J. 307 (1974). Had counsel made the argument defendant now advances on appeal, it would have fallen on deaf ears as fallacious.

Affirmed.

(continued)

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A-4198-03T4

November 18, 2005