STATE OF NEW JERSEY v. EMMIT WORTHY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0138-04T40138-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMMIT WORTHY,

Defendant-Appellant.

_________________________________

 

Submitted January 23, 2006 - Decided February 17, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

00-06-1152.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Thomas Menchin, designated counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Emmit Worthy, appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in an indictment with one-count of third-degree terroristic threats, N.J.S.A. 2C:12-3a. According to his pre-sentence report, on March 21, 2000, "[defendant]

. . . went to [the victim's] place of employment at CVS in the Renaissance Plaza in Atlantic City . . . and stated that he was going to wait for him to get off of work and shoot him. [Defendant] pulled his jacket up and showed [the victim] the black handle of a gun that was in his pants waist."

On August 14, 2000, in exchange for the State's recommendation of a probationary term, defendant entered a guilty plea to the charge, admitting that he threatened to shoot the CVS security guard, but denying that he had a weapon. Acceptance of the guilty plea was conditioned on defendant being employed full-time at time of sentencing. On September 21, 2000, the scheduled sentencing date, defendant appeared late, the court expressed reservations over the plea bargain given defendant's prior record, and defendant himself moved to retract his guilty plea. The matter was then scheduled for trial on November 13, 2000.

On that date, defendant again pled guilty to one count of terroristic threats. Although reluctant at first to provide a factual basis for the crime, he ultimately admitted threatening to cause bodily harm or injury to the CVS security guard. In accordance with the plea agreement, defendant was then sentenced, on the same day, to a probationary term conditioned on, among other things, drug or alcohol counseling and/or testing as directed by the probation officer. Having found a preponderance of aggravating factors, N.J.S.A. 2C:44:1a (3),

-(6), -(9), and, therefore, the negotiated sentence "lenient," the judge specifically informed defendant that if he violated probation, he would be sentenced to State Prison for a term of at least four years.

On June 29, 2001, defendant appeared on a violation of probation (VOP), charging him with refusal to submit to a urine screen. Defendant acknowledged that he did not submit to a urine screen, but explained that he had undergone eye surgery and was urinating a dye, which he thought might compromise the test. He indicated that he told his probation officer, Ms. Torian, who was not present at the VOP hearing, that it was not really a good time for him to take it because it's not going to be normal, and that "she didn't say she was going to violate me." At that point, the prosecutor represented that there was another occasion when defendant had refused to submit to a urine screen. The court found that there was no excuse for defendant's failure to abide by the condition of probation and imposed a thirty-day jail term, allowing defendant to serve the sentence on day reporting, given his employment. The court also admonished defendant that the next time his probation officer told him to do something, he must do it. The judge explained to defendant that, with his record, he was "lucky to be on probation," and cautioned him not to "blow it."

On August 31, 2001, defendant moved for reconsideration of the VOP, complaining that he did not have the opportunity to confront Probation Officer Torian in court to refute the charge. He repeated his prior statement, to the effect that he believed he had been excused from submitting to the urine screen because of his medical procedure. Once again, Ms. Torian was not in court to respond, but this time the judge contacted her by phone and confirmed that she unquestionably advised defendant that if he did not appear to submit to the urine test, he would be violated. The court found the VOP was proper and declined to modify the thirty-day reporting sentence. On the contrary, the court referred to defendant's extensive record and indicated that the sentence imposed was "an absolute gift." The judge alluded to the fact that defendant was even warned by the original sentencing judge that a violation would result in a State Prison sentence.

On February 22, 2002, defendant appeared on a second VOP, this time for having a positive urine screen. He admitted testing positive for some banned substance in his urine. The probation officer, noting that defendant was obviously continuing to use illegal drugs, recommended continued probation with some county jail time. The judge, citing defendant's considerable prior record and questionable suitability for probation, imposed a four-year prison term. Defendant's subsequent motion for reconsideration of sentence was denied, the court relying principally on defendant's prior record and, to some extent, his prior VOP.

Defendant appealed, and the matter was heard on the Excessive Sentence Oral Argument calendar. We affirmed. The Supreme Court thereafter denied defendant's petition for certification. State v. Worthy, 175 N.J. 546 (2003).

Defendant filed the instant PCR petition, arguing the following:

[O]riginal counsel did not object to the drug testing as a condition of the original probation, even when the charge of terroristic threats had no indication of drug abuse. Additionally, VOP counsel did not ensure that petitioner's constitutional right of confrontation was protected at either the hearings alleging violations of probation. Counsel made no[] efforts to object or use her subpoena power to force the probation officer to testify, be crossexamined or produce records showing that petitioner had been anything other than a model probationer. In addition, petitioner was never provided with any statement of the exact charges against him. Counsel also lied to petitioner about the sentence on the VOP, advising him that he would receive a small amount of county jail time, most of which had been already served. VOP counsel also never appealed the findings on the alleged first violation of probation.

The judge denied the PCR petition, reasoning in part:

Defense's argument that Counsel should have objected to drug screening is totally without merit. 2C:45-1 states that a Court may attach reasonable conditions authorized by the statute. Section 12 of that statute indicates Defendant may have to satisfy any other condition that reasonably is related to the rehabilitation of the Defendant. That, of course, would include a condition that a Defendant undergo a drug evaluation and follow recommendations that are recommended as far as inpatient, out-patient, random urine screens and the like. Although this Defendant did not plead guilty to a drug offense, obviously the Court was not unreasonable in requiring him to submit to a drug evaluation.

. . . .

As far as a failure to investigate that second VOP, Counsel was aware, from his previous representation, that the Defendant contested the initial positive urine screen and that the VOP on June 29th it's alleged was found to be in error. However, with this it's argued Counsel failed to interview the probation officer or make independent determination. This contention is also without merit.

As far as investigations, Counsel has a duty to make reasonable investigation, as particular decision not to investigate must be directly assessed for reasonableness in all the circumstances and when a Defendant has given Counsel reason to believe that pursuing certain things would be fruitless or even harmful, which this case would be the failure to pursue those investigation, may not later be challenged as unreasonable.

. . . .

Furthermore, that the Defendant alleges he was misinformed about the material consequences of his plea. The Defendant argues he pled guilty to the second VOP because, without viewing the discovery, he was told that the sentencing recommendation would be ninety days Atlantic County Jail. He argues that Counsel failed to advise that the Court has sentencing discretion on VOP and failed to advise the Court did not have to follow those recommendations.

Ultimately the Defendant alleges that he had been advised of that, he would have not pled guilty and would have been forced to try on the VOP.

It's a ridiculous argument, quite frankly, because the test is what the test was and he could have had a trial. He could have called in a hundred witnesses. The bottom line is he was going to be found guilty with a positive urine screen or failure to give the urine screen in any event.

Also when he indicates he would have been forced to a trial on the VOP, VOP is not a criminal prosecution under STATE V. REYES, 207 [N.J.] Super.[] 126 and on a VOP there is no entitlement to Indictment or trial by jury. Defendant should obviously know that.

The Defendant has not produced not even a scintilla of evidence that Counsel did make those representations as he said were made.

Second, this was his second VOP on charges that resulted in a guilty plea that Judge Guerrera previously refused to accept and Judge Neustadter called lenient at that time. Therefore, even if there were actual proof that Counsel did not inform Defendant or there was actual proof that she misinformed the Defendant, that deficiency would not have affected the outcome because sooner or later he would have been adjudicated guilty.

. . . .

He also argues that his Appellate Counsel was ineffective when she failed to argue all of the above in the initial appeal in this matter. The only appeal the Defendant is known to have filed is the excessive sentencing appeal and all of the issues mentioned would not have been addressed during that appeal on excessive sentencing because none of the other allegations have merit. I have found that there is not ample cause to find that Counsel was ineffective.

On appeal, defendant raises the following issues:

I. THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING CONCERNING WHAT DEFENDANT WAS TOLD BY HIS TRIAL COUNSEL AS TO WHAT SENTENCE HE SHOULD EXPECT IF HE WERE TO PLEAD GUILTY.

II. THE SENTENCE WAS ILLEGAL BECAUSE THERE WAS AN INADEQUATE FACTUAL BASIS FOR THE PLEA TO THE CHARGE IN THE INDICTMENT AND DEFENDANT'S PLEA TO THE VIOLATION OF PROBATION WAS NOT KNOWING AND VOLUNTARY.

III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE HEARING ON THE FIRST VIOLATION OF PROBATION.

IV. THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED THOSE CLAIMS WHICH REQUIRED THAT EVIDENCE BE TAKEN.

As a threshold matter, we reject the State's argument that expiration of defendant's sentence moots his appeal. It is clear "that an intervening completion of a custodial sentence will not affect a defendant's right to appeal from the underlying conviction. Nor will it affect his right to challenge a probation revocation." Bd. of Tr. of Youth Corr. Ctr. v. Davis, 147 N.J. Super. 540, 543 (App. Div. 1977) (citing Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) and Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969)).

Having said that, and having considered each of defendant's issues in light of the record, the applicable law, and the arguments of counsel, we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

Defendant's ineffective assistance of counsel claim is grounded in the contentions that there were inadequate factual bases supporting his guilty pleas to terroristic threats and the second VOP; that his guilty plea to the second VOP was made without knowledge of the penal consequences; and that his first VOP hearing denied him procedural due process. These claims, however, were never previously raised on direct appeal, although they all could have been. In fact, defendant never challenged the factual basis underlying his original conviction until after his probation was violated. And even on his motion for reconsideration of sentence, defendant never alleged attorney misadvice, a claim he instead held in reserve until after his direct appeal and made for the first time in this collateral proceeding. As such, these claims are now barred from consideration on this appeal, Rule 3:22-4; State v. Mitchell, 126 N.J. 565, 583-84 (1992); State v. Mitchell, 374 N.J. Super. 172, 175-76 (App. Div. 2005), especially those alleging an inadequate factual basis because the requirement of a factual basis does not implicate a constitutional right. R. 3:22-4; State v. Barboza, 115 N.J. 415, 421 (1989); Mitchell, supra, 374 N.J. Super. at 176. Moreover, defendant's guilty plea to the second VOP may be deemed to constitute a waiver of the defects in the prior proceedings. State v. Raymond, 113 N.J. Super. 222, 227 (App. Div. 1971); see also State v. Crawley, 149 N.J. 310, 316-17 (1997).

But even assuming no procedural bar, defendant's claims of ineffective assistance of counsel lack substantive merit. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only that the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.

An adequate factual basis exists to support defendant's guilty pleas to both terroristic threats and the second VOP. The former requires that a defendant "threaten[] to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror

. . . ." N.J.S.A. 2C:12-3a. Here, defendant initially admitted threatening to shoot the CVS employee and later acknowledged threatening the victim with bodily injury. Clearly an intent to terrorize the victim, or at the very least, a reckless state of mind, may be reasonably inferred from defendant's admissions.

There was also a factual basis for the second VOP. Defendant's attorney acknowledged that defendant had a positive urine screen and defendant, when addressed by the court, indicated that his attorney's statement was correct. Supported by adequate factual bases, these guilty pleas were properly accepted and, therefore, defense counsel's failure to object was neither deficient nor prejudicial to defendant.

These guilty pleas were also entered with full knowledge of the penal consequences. When defendant was originally sentenced to probation on November 13, 2000, the judge explicitly advised defendant that if he violated probation, he would receive at least four years in State Prison. Defendant specifically indicated that he understood. The judge's advice of record, as well as defendant's belated assertions as to what his attorney otherwise may have predicted defendant would receive as a sentence on the second VOP, simply do not support defendant's claim that he was unaware of the penal consequences of his plea, or that his plea was involuntary or unintelligent. See State v. Gailes, 64 N.J. Super. 232 (App. Div.), cert. denied, 368 U.S. 847, 82 S. Ct. 77, 7 L. Ed. 2d 45 (1961). In other words, the court's record advice should have effectively disabused defendant of any misconception he may have entertained about his sentence exposure.

In any event, counsel's alleged "prediction" of defendant's likely sentence does not fall below Strickland's "reasonableness" standard, especially given probation officer's recommendation of a 90-day county jail term. See, e.g., United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990); Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986). Nor has prejudice to defendant been demonstrated, particularly in light of the fact that defendant has never offered any meritorious defense to the second VOP. He tested positive for marijuana as a result of a urine screen, and his subsequent decision to plead guilty may fairly be deemed a consequence not of any attorney misadvice, but rather of his actual guilt.

Lastly, we reject defendant's claim that he was denied the effective assistance of counsel at his first VOP hearing. At that proceeding, defendant essentially acknowledged that he did not submit to a urine screen scheduled for March 28, 2001, but sought to excuse the breach by citing a medical reason. The prosecutor also represented that there was an earlier occasion when defendant also refused to submit to a urine test, that time on the basis of his belief that because his underlying conviction was not drug-related, the request for a urine sample was unconstitutional. Defendant did not dispute the prosecutor's representation. In any event, the judge rejected defendant's excuse, finding that defendant violated a condition of his probation as charged. The judge reasoned:

This defendant has a substantial criminal record. Twenty-three arrests, twelve convictions. He's really received the benefit of . . . the plea agreement in this case, which was terroristic threats. There's no excuse for his -- And which I find to be a failure to abide by condition of probation. I will not imprison him, however, he needs to be punished for this indiscretion. I'll require that he serve an additional County Jail term of thirty days. Given that he's employed I will allow him to do it in the day reporting program.

We perceive no denial of due process at this hearing. The judge's finding of a violation of probation is supported in the record and defendant's explanation was obviously considered in mitigation of penalty. Indeed, as the judge noted, in light of defendant's extensive criminal record, his sentence was "an absolute gift", and defendant is "lucky to be on probation." The fact that on reconsideration the judge engaged in the unorthodox procedure of telephoning the probation officer to confirm his earlier ruling, neither taints nor vitiates that determination. The VOP finding having been properly rendered, counsel's failure to object was neither deficient nor prejudicial. Moreover, at the motion for reconsideration counsel challenged the earlier finding based on the absence of Probation Officer Torian from that proceeding and, therefore, it cannot be said her performance fell below Strickland's reasonableness standard. For all these reasons, we, therefore, reject defendant's claim of ineffective assistance of counsel.

 
Affirmed.

(continued)

(continued)

15

A-0138-04T4

February 17, 2006