STATE OF NEW JERSEY v. VERNON BRANTLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1565-06T41565-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERNON BRANTLEY,

Defendant-Appellant.

_______________________________________________________

 

Submitted November 10, 2008 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-11-1288.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Vernon Brantley appeals from an order dated February 19, 2004, denying his petition for post-conviction relief (PCR) following a remand from an earlier appeal of the denial of PCR without an evidentiary hearing. The reviewing panel ordered a remand for a hearing to develop the record on two issues involving the asserted ineffective assistance of trial counsel. These issues concerned (1) defendant's PCR claims that trial counsel falsely advised defendant that co-defendant Paris Brown would likely testify against him at trial and (2) defendant's claim that misinformation from the trial court and trial counsel regarding the period of parole ineligibility led him to accept the plea offer instead of proceeding to trial on the four counts of the indictment.

The indictment charged defendant and Brown with first-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count three); and second-degree robbery, N.J.S.A. 2C:15-1 (count four). Counts three and four also named as an additional co-defendant Moraima Marrero. Defendant agreed to enter a guilty plea to two counts of second-degree robbery in exchange for the prosecutor's agreement to recommend flat sentences of seven years on each count with a waiver of extended-term sentencing and a waiver of the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The remand hearing was conducted on May 26 and June 1, 2006. Although PCR counsel presented proofs concerning his efforts to obtain testimony from co-defendant Brown, Brown did not appear for the PCR hearing to offer testimony as to whether he had intended to testify as a witness against defendant at the time of trial. Brown's mother and his sister testified, however, neither of them had seen Brown for three or four months. Neither knew where he was. Thus, the significance of a handwritten note, purportedly authored by Brown and delivered by a correction officer to defendant, remained ambiguous. As the remanding appellate panel had observed, the note "does not clearly state that by defendant's plea cut-off date, Brown had in fact decided not to testify against defendant." The panel further observed that note may have meant either that Brown never intended to testify against defendant or that Brown was recanting his prior intention to testify.

Not only did Brown's failure to appear at the remand hearing leave in doubt the true meaning of the handwritten note attributed to him, but the attorney who represented defendant at the plea hearing whom the State intended to call as a witness at the PCR hearing claimed he had no memory of what the circumstances had been six years earlier when he represented defendant at the plea hearing. Thus, defense counsel was unable to shed any light on his discussion with defendant concerning Brown's intention to testify in the State's case against defendant or his recommendations with regard to the plea offer.

Defendant testified at the remand PCR hearing. He reiterated that prior to the entry of his guilty plea, his attorney had shown him statements given by Brown to the police, in which Brown had described defendant as the perpetrator of one of the robberies, and Brown had picked out defendant in a photo array. Also, defendant recalled:

[H]e said, [the attorney], Paris Brown turned State['s] on you. Had a statement, he took a plea to testify against me. Then after I accepted the plea on the information of, well, you know, you're facing the 64 years and, you know, Paris Brown is testifying against you, this is what [the attorney] told me, there is no way for me to beat the charges. I suggest you take the plea because I can't win at trial with him testifying against you.

Defendant stressed in his testimony that he understood he faced a minimum exposure of sixty-four years for the crimes charged in the indictment, but he later learned the applicable period of parole ineligibility was twenty-five years or thirty if consecutive sentences were imposed. He stated repeatedly that "if I had known [what] I was facing I would have went to trial." Defendant testified that when he received the note from Brown, four days after he accepted the plea, he called his attorney, and he wrote to the judge indicating he would like to withdraw his plea. His request in that regard was denied.

The PCR judge recited his findings and rendered a detailed statement of the reasons for his ruling in an oral opinion delivered on June 1, 2006. The judge concluded that defendant had made a bare assertion that he would have opted to proceed to trial, but he had not met the Appellate Division's standard to articulate a reasonable probability that had he known that the period of parole ineligibility was thirty years, instead of sixty-four years, he would not have taken the plea. The judge reasoned:

[I]f he had, in fact, been exposed to 64 years minimum parole ineligibility, he would have been 95 years-old when he was eligible for parole which means he would have spent the rest of his life in prison, no question about it[,] as opposed to a 30-year period of parole ineligibility where he would be 61 years-old when he was eligible for release, not released, but eligible for parole and[,] in practical terms[,] to a 31 year-old person what does that mean? He didn't tell us[.] Mr. Brantley didn't tell us on May 26, 2006 why it meant such a difference. All he said is had I known I would have gone to trial . . . . Would that have compelled the defendant to go to trial? I think it needs to be compared to what he actually got. He got 14 years with no period of parole ineligibility. A 14 year sentence would make him eligible for parole after six or seven years and he would have been still in his 30's. Now comparing that, being able to get out, at least have an opportunity to get out . . . and have a whole life ahead of you as opposed to getting out of prison at the minimum when you're age 61 and having only the latter years of your senior citizen life ahead of you, I don't believe that this defendant has met the Appellate Division's standard to articulate a reasonable probability that had he known that it was 30 versus a 64 he would have taken the plea. He didn't tell us why. I don't think he can tell us why . . . . The only facts in the record, the fact that the defendant knew he was facing a very lengthy period of time before he would be eligible for parole[:] in the first instance his entire life and in the second instance his entire adult life. His entire productive years and juxtaposed with what he actually got on the plea and it is not even a NERA sentence, the disparity between the 30 and the 14, it is actually between the 30, and I am guessing, I really shouldn't do that, I really should have my parole, I believe it is on a seven-year term it is approximately three, maybe three and a half years, so it is about six or seven years at the most that he would be eligible for parole and as opposed to 30 years. I think the disparity is so great and that unless there is some real articulated rationale why the 30 would have made a difference, why it would have made a difference for him to get out to be eligible for parole at age 61 as opposed to age 37 or 38, perhaps it would have made this Court's job more fulfilling, but it doesn't because I don't have anything other than just a bare [sic] statement that I would not have taken the plea if I had known that without giving any rationale so I find that the defendant has not shown a reasonable probability, but for counsel's error in telling him the 64 years versus the 30 years of parole ineligibility he would not have pled guilty would have insisted on going to trial I don't think that that, I find that that did not make a difference and, therefore, is not a basis for finding any ineffective assistance of counsel and it was ineffective in that regard that he gave him a substantially different period of time, it would not have led to a reasonable likelihood that the defendant would have not taken the plea and gone to trial.

As to the second issue remanded by this court, the PCR judge found that "it has to be, it absolutely conclusively has to be that he [co-defendant Brown] intended to testify against [the] defendant." The judge noted that defendant knew Brown had given a taped statement that arguably implicated defendant and that the other co-defendant, Marrero, also had given a statement implicating defendant.

The court found further that if the note purportedly written by Brown was a recantation of prior statements he had made that implicated defendant, that note did not come to defendant's attention until four days after he had agreed to accept the State's offer to plead guilty to the two counts of second-degree robbery. Under such circumstances, the PCR judge found that "the defendant has not shown that there's a reasonable probability that but for counsel's errors he would not have pled guilty and would have insisted on going to trial."

In this appeal, defendant raises three points of argument for our consideration. He argues:

POINT I: THE TRIAL COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF AFTER THE EVIDENTIARY HEARING ON REMAND.

POINT II: THE APPELLANT ARGUES THAT THE PROSECUTOR COMMITTED MISCONDUCT BY ALLEGEDLY MISLEADING HIS TRIAL COUNSEL TO ADVISE THE APPELLANT THAT THE CO-DEFENDANT PARIS BROWN PLEAD GUILTY AND WAS GOING TO TESTIFY AGAINST THE APPELLANT; THEREFORE, THE MOTION FOR POST CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THESE GROUNDS. (NOT RAISED BELOW).

POINT III: THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S APPLICATION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL SINCE HIS PRESENT COUNSEL HAD JUST BEEN APPOINTED TO REPRESENT HIM AND DID NOT HAVE ADEQUATE TIME TO DISCUSS THE CASE WITH THE APPELLANT AND PROVIDED HIM INCORRECT INFORMATION. (NOT RAISED BELOW).

The short answer to points two and three is that the claims of prosecutorial misconduct or inadequate time for preparation which defendant now raises have not been raised previously. They are not a part of the record in this appeal. Generally, we decline to consider issues not presented to the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and we adhere to the general rule in this case. The remand hearing was conducted to explore the two limited issues raised in defendant's original PCR petition. The objective of the remand proceeding was to afford defendant the opportunity, through an evidentiary hearing, to attempt to demonstrate that defense counsel's performance was deficient and that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695-96, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674, 698-99 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

As the remanding panel recognized, prejudice is not presumed. Fritz, supra, 105 N.J. at 63. "[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Echols, 199 N.J. 344, 358 (2009) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). "The court 'must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

We do not perceive that defendant was prejudiced by counsel's failure to correct the court's inaccurate statement that if he were convicted of first-degree robbery, defendant would "be subject to an extended term which would be a term of life and that [he] could be required to serve 85 percent of that term which would translate to approximately some 64 years during the time [he] would not be eligible for parole." Instead of sixty-four years of parole ineligibility, defendant would have been subject to twenty-five years or thirty years, depending on whether the convictions were run consecutively. The PCR court found that, apart from defendant's bare assertion that he would have rejected the plea offer had he known the lower mandatory minimum applied, he gave no reason why he would have favored the risk of the thirty-year minimum after a trial over the certainty of the negotiated aggregate term of fourteen years without any period of ineligibility. We agree with the PCR judge that it is unrealistic and unbelievable that, defendant, who does not even profess his innocence, would risk a life sentence with a thirty-year period of parole ineligibility after trial when he had agreed to plead guilty in exchange for the relatively lenient fourteen-year flat sentence. State v. Johnson, 182 N.J. 232, 241-42 (2005) ("To vacate a plea, a 'defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by the enforcement of the agreement.'") (quoting State v. Howard, 110 N.J. 113, 123 (1988)). See also State v. McQuaid, 147 N.J. 464, 495 (1997) (defendant must show "that his mistaken belief about the penal consequences to which he was exposed was a material factor in his decision to plead guilty.").

Affirmed.

 

At the plea hearing conducted on June 19, 2000, defendant acknowledged, as to count two, that on August 26, 1999, up in New Brunswick "me and Paris Brown robbed this guy." They took his money and wallet. They "grabbed him, [and] kicked him around a little." As to count four, defendant testified that on September 6, 1999, in New Brunswick, he and Paris Brown got Moraima Marrero "to get the guy in the alleyway. We took nine hundred dollars from him." They used force. They "put him in a sleep and went in his pockets."

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A-1565-06T4

November 20, 2009