STATE OF NEW JERSEY v. ANTHONY LEAHEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2444-04T42444-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY LEAHEY,

Defendant-Appellant.

 

Submitted March 1, 2006 - Decided March 13, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 99-06-0337-I.

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

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Leahey appeals from a November 24, 2004 order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.

Defendant pleaded guilty on August 10, 2000 to three counts of first-degree murder and two weapons offenses, in return for the State's agreement to recommend a minimum term for first-degree murder of thirty years in State prison with thirty years to be served without parole. During his colloquy with defendant, the court advised him that he faced a potential term of life in prison with "up to 85 percent to be served without parole." Defendant acknowledged that he understood the consequences of his plea, had discussed the plea with his attorney, and pleaded guilty because he was, in fact, guilty. He testified that after his co-defendant stabbed the victim, he stabbed the victim three to four times in the heart. The judge accepted defendant's guilty plea.

In accordance with the plea agreement, defendant testified against his co-defendant on October 26, 2000. Defendant's co-defendant was convicted of reckless manslaughter and received a nine-year sentence with an eighty-five percent period of parole ineligibility.

On August 16, 2001, defendant moved to withdraw his guilty plea. He claimed he had taken medication at the time of his guilty plea, and as a result he did not knowingly plead guilty. The judge denied the motion, indicating that at the time defendant entered his guilty plea he said he was not under the influence of anything that would affect his thinking; and, that defendant had undergone psychological evaluations at the request of defense counsel, and none of the psychological records showed that he was suffering from a psychosis.

Defendant appealed his sentence. By order of June 5, 2002, an excessive sentencing panel of this court affirmed his sentence.

The PCR application that is the subject of this appeal was filed by defendant on November 22, 2002. On appeal, he raises a singular issue:

POINT ONE - THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, BECAUSE THE DEFENDANT'S PLEA COUNSEL COMMITTED A SERIOUS ERROR BY MISINFORMING THE DEFNEDANT ABOUT THE POSSIBLE SENTENCING CONSEQUENCES OF A TRIAL, THUS PREJUDICING HIS CONSTITUTIONAL RIGHT TO A TRIAL.

We have carefully reviewed the record in light of this contention and the applicable law. We are satisfied that the argument advanced is without merit.

Defendant's sole argument on appeal is that if he had been aware that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2b, did not apply to murder, he would not have pleaded guilty. In addressing that argument, the PCR judge, who was also the judge who accepted defendant's guilty plea, made the following findings:

[T]he defendant is filing postconviction application seeking to withdraw the plea of guilty, now arguing [he was] misinformed by his attorney and the Court about the potential consequences faced if he decided to go to trial, thereby arguing that his plea was neither voluntary [n]or knowing. . . .

The defendant asserts that he was misinformed about the potential sentence he faced if convicted, life in prison, 85 percent to be served without parole, No Early Release Act. . . . Leahey entered his plea of guilty August 10th, 2000. Appellate Division decided [State v.] Manzie[,] 335 N.J. Super. 267 [(App. Div. 2000) in] November of 2000. [The case] [h]eld that the NERA as it was then in effect did not apply to murder. The case was affirmed by the equally divided Supreme Court June 13th, 2001.

. . . .

In this case, . . . reviewing the transcript at the entry of the plea of guilty which took place August 10, 2000, the Court thoroughly discussed the entry of the plea of guilty with the defendant and counsel, and spoke to counsel even before addressing the defendant. Later in addressing the defendant, he was asked whether or not he discussed this matter fully with his attorney. He indicated that he had. In fact, [he] had discussed it several times with his attorney; that they had talked about the various charges; that they went over the State's evidence, the police reports, the statements, all of the evidence involved in the case.

. . . .

The Court indicated to the defendant at the entry of the plea that . . . on the murder charges that there was the potential for up to life in prison with 85 percent to be served without parole, and the Court reviewed other charges with the defendant.

Clearly, the defendant understood that he was waiving his right to go to trial in pleading guilty. . . . He understood that the plea agreement had been reached for a minimum term on murder, namely, 30 years in prison, 30 without parole.

. . . .

Leahey gave testimony in a postconviction relief application in August of this year regarding the interaction between himself and his attorney, Richard Hurley . . . . [E]ventually, after some period of time, [counsel] was able to get the State to trim the offer down to a 50 year period, 85 to be served without parole. [Defendant] indicated that he didn't want that and would rather go to trial, noting that his attorney indicated that they really wouldn't win at trial. If they lose, that he was going to spend the rest of his life in prison with a lengthy period of parole ineligibility.

Still later, speaking with his attorney, he indicated that he might be able to get a 30 year term, 30 without parole. . . .

Ultimately, the defendant contends that the attorney told him he really didn't have a defense to the charge and decided that a 30 year term, 30 without parole, was better than life in prison, 85 without parole.

. . . .

At the time of the entry of the plea, NERA was in a gray area as to murder. However, everybody agreed that murder was a violent crime. There was a potential for 85 percent to be served without parole, and Mr. Hurley indicated that when the plea offer from the State came down to the minimum for murder, a 30 year, 30 without parole, if the defendant testified, they decided to take it. They talked it over. They discussed it. The defendant discussed it with his family. Eventually the defendant decided to accept the plea. There was no force, no threats made towards the defendant to get him to plead guilty.

The attorney indicated that he was ready and willing and able to go to trial at any point, but when the plea offer came down to the minimum, a 30 year term, 30 without parole, felt they couldn't do any better if they went to trial. . . .

The defendant understood that, agreed, and decided to go ahead with the plea. And clearly in conversation with the defendant, it was a knowing and voluntary plea.

. . . .

I am satisfied that what happened here is that the defendant was ready, willing and able to go to trial, would not accept prior offers by the State on behalf of his client, and agreed to a plea of guilty only when the recommendation from the State came down to the minimum for murder, namely a 30 year term, 30 without parole.

I find that Mr. Hurley is truthful, and at that point it was clear that the offer was never going to get any better. That this was the absolute best offer for them to get; that the psychiatric defenses were not available. The defendant had confessed within days of the murder to participating in the murder, and there was a very real possibility, very strong case on behalf of the State.

The real motivation for the plea of guilty here was the strength of the State's case and the factor that the plea offer came down to the absolute minimum for murder. I don't agree with the offer offered by the defense that it had to do with NERA. It had to do with the fact that they had a very strong case and that the State now made the minimum offer in order to get the cooperation of the defendant in the prosecution of the codefendants. . . . It's not really an argument about NERA or its application in this case.

My impression listening to all the testimony involved in the case, the inspiration for the present application is the fact that [co-defendant] was convicted of reckless manslaughter rather than murder. Point of fact that NERA was not discussed with the State in any of these applications. The State did not threaten to impose NERA sanctions. . . .

Here Leahey received the absolute minimum for murder pursuant to the plea agreement. Here the minimum period of parole ineligibility would be the same whether it resulted in a plea or a trial. . . . Point of fact the defendant had a prior record. . . . Here he took the plea because there was a very real possibility he would end up doing life in prison, 30 without parole. . . .

I don't find the defendant to be credible in his offer for reasons to withdraw the plea of guilty. What really happened is the defendant accepted the plea, agreed to testify, and it turned out that [co-defendant] at trial was found guilty of reckless manslaughter instead of murder, and that is why we have this application.

. . . .

His claim of NERA sanctions is absolutely not credible.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, & 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland, supra, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693. First, a defendant must show that defense counsel's performance was deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this test. State v. Fritz, 105 N.J. 42, 58 (1987).

A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[P]rejudice . . . is not presumed." Fritz, supra, 105 N.J. at 52.

The substance of defendant's argument is that had he known that NERA did not apply to murder, he would have gone to trial rather than entered a guilty plea. He claims this misinformation provided by his attorney amounted to ineffective assistance of counsel that should allow him to withdraw his plea. The PCR judge rejected this argument and so do we.

Defendant entered his guilty plea on August 10, 2000. On November 29, 2000, this court concluded that NERA did not apply to murder. See State v. Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000). On certification, an equally divided Supreme Court affirmed the judgment of the Appellate Division. State v. Manzie, 168 N.J. 113, 114 (2001). Giving the timing of both the Appellate Division and Supreme Court decisions, and that even the Supreme Court was unable to agree whether NERA applied to murder, we do not find that counsel's advice to defendant that NERA applied to murder was deficient. Given the state of the law at the time, counsel's advice was within the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

We also agree with the PCR judge that defendant has sought to withdraw his plea, not because of any misinformation he received from his attorney, but because his co-defendant was convicted of manslaughter and received a nine-year sentence. That is not a basis to permit him to withdraw his plea.

Defendant pleaded guilty, not only because he was guilty, but because the plea agreement called for a maximum prison term of thirty years rather than a life term. We agree with the PCR judge that even if defendant had been told that NERA did not apply to murder, it would not have made any difference in his decision to plead guilty. See State v. McQuaid, 147 N.J. 464, 496 (1997) (plea will not be vacated if knowledge of consequences would not have made any difference in defendant's decision to plead).

The New Jersey Supreme Court's decision in McQuaid, supra, supports the State's position. There, the defendant entered a guilty plea to felony murder and received a forty-year prison term with the statutory minimum thirty-year term of parole ineligibility. Id. at 496. He was subject to a substantial term of imprisonment as a result of the multiple charges that he faced. Id. at 496-97. The defendant grounded his PCR application on a claim of ineffective assistance of counsel, "alleging that he had pled guilty because of the erroneous advice that if tried and convicted of the pending charges he could be subject to the death penalty." Id. at 469. In affirming the denial of the defendant's PCR application, the Court found that the defendant was unable to demonstrate that "the death-eligibility misinformation materially and prejudicially influenced his decision to plead guilty." Id. at 499.

Here, we arrive at the same result. Defendant was unable to demonstrate that his belief that NERA applied to the murder materially influenced his decision to plead guilty.

Defendant claims his position is supported by State v. Kiett, 121 N.J. 483 (1990), where the defendant, a juvenile, pleaded guilty to murder pursuant to a plea bargain that removed the risk of the death penalty. Id. at 484. The Supreme Court found that avoiding the death penalty was a material factor in Kiett's decision to plead guilty, and, because, as a matter of law the death penalty was inapplicable to juveniles, he was permitted to withdraw his plea. Id. at 490-91. The Court specifically found that Kiett's primary motive in entering his guilty plea was to avoid imposition of the death penalty. Id. at 491. Kiett is distinguishable, however, because the information provided to defendant concerning NERA was not a material factor in his decision to plead guilty.

We affirm substantially for the reasons expressed by Judge Edward Coleman in his November 15, 2004 oral decision.

 

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A-2444-04T4

March 13, 2006