STATE OF NEW JERSEY v. KEVIN COOKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3897-05T43897-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN COOKE,

Defendant-Appellant.

______________________________________

 

Submitted May 20, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment Nos. 01-04-1157 and 02-04-1280.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Kevin Cooke, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In March 2003, defendant entered a negotiated guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and third-degree possession of a controlled dangerous substance with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7. In exchange, the State agreed to dismiss a charge of first-degree murder and to recommend concurrent terms aggregating eighteen years with a NERA parole disqualifier.

Defendant gave the following factual basis under oath:

[THE COURT]: All right. It's now alleged under that count, Count One, that on or about 13 - the 13th day of July, 2001 in Camden City you recklessly caused the death of Corey Smith under circumstances manifesting extreme indifference to the value - or to human life in violation of law. It's still a first degree offense, but the maximum is now 30 years, not the life sentence. How do you plead to that charge, guilty or not guilty?

[DEFENDANT]: Guilty.

Q. On July 13th, 2001 you were in Camden City, correct?

A. Yes.

Q. And at some point during the course of that particular day you encountered Corey Smith, correct?

A. Right.

Q. And you knew Corey Smith from before, right?

A. Yes.

Q. And there was a problem that you had with him earlier in the day of July 13th, correct?

A. No.

Q. No? What happened on that day that makes you guilty of the aggravated manslaughter?

[DEFENSE COUNSEL]: Judge, can I?

Q. Yeah. You may - can help me. Sure.

A. All right.

Q. Again, you were in the City of Camden on July 13th, 2001 correct?

A. Right.

Q. All right. And you were in an area of Camden where you saw Corey Smith that night, is that correct?

A. Right. Yes.

Q. All right. And you were in possession of a hand gun, is that correct?

A. Correct.

Q. Okay. And what did you do with that hand gun?

A. I shot him.

Q. All right. You shot Corey Smith, correct?

A. Yes.

Q. And when you shot Corey Smith, you were - as a result of you shooting him, he died, is that correct?

A. Yes.

Q. All right. And prior to that date, there had been some trouble between you and Corey and you were upset with him, right?

A. Right.

Q. All right. And that was what lead up to this, is that correct?

A. Yeah.

Q. All right.

[THE COURT]: Do you remember how many times you discharged the weapon, how many times you fired the weapon?

A. No. I - no, I can't recall how many times I fired. That's -

Q. What - were you - oh, was it more than one, do you think?

A. Yeah, it was more than one.

Q. And do you know how far you were from him?

A. Probably from where I'm at to where you are.

Q. So maybe about 20 feet, 25 feet, correct?

A. No. Maybe not that far.

Q. Not that far?

A. Yeah.

Q. About 15 feet, maybe?

A. Right.

Q. Okay. And when you fired the weapon you actually pointed it in his direction when you fired it, right?

A. Yes.

Q. You just - you didn't turn your back and not aim it, you sort of aimed it, right? Yes?

A. Yes.

The next day, defendant was in Philadelphia and he confided to his girlfriend, Tanica Nichols, that he had shot Smith.

Prior to sentencing, defendant moved pro se to withdraw his guilty plea. In support of his motion, defendant submitted an "affidavit," which stated in part:

7. I received a letter from a witness (copy enc.) that was my alibi, stating her fear, and the amount of pressure that was placed on her. Considering, she is my alibi, the weight of her statements and testimony are critical to my case. Counsel chose not pursue verifying my alibi and advised me to admit my presence at the scene of the crime. Against my wishes.

8. While dealing with the fact of counsel insisting on me taking the plea, counsel stated on day of plea that, "I have spoken with Rhonda [the alibi witness], and she stated that she will not change her statement." This was stated while I was still against accepting a plea and fighting for my innocence. This statement and a later event coerced me into accepting the plea.

9. I received a letter two days after accepting the plea, from the witness, informing me how she spoke with counsel and was waiting to meet with him to rectify things. Which leads to my belief of counsel's fabrication.

10. On day of plea, Counsel stood aside, and remained silent, as the Prosecutor entered the holding cell and proceeded to add undue pressure, by insisting I accept the plea, because of the guarantee he has of finding me guilty. This was done after counsel having fabricated that one of the witnesses was not changing her statement. This pressure produced a suppressive air, in better terms, a coercive air, which led to my accepting the plea.

At the hearing on the motion to withdraw the guilty plea, defendant did not make any statement at all, although the judge invited him to do so on two occasions. The judge denied the motion to withdraw and proceeded to impose the recommended sentence, i.e., concurrent terms aggregating eighteen years with a NERA parole disqualifier.

Defendant appealed only his sentence. At an ESOA calendar, we affirmed the sentence but vacated the restitution award. State v. Cooke No. A-3466-03T4 (App. Div. March 14, 2005), certif. denied, 185 N.J. 39 (2005).

Two years after the entry of the judgment of conviction, defendant filed pro se a PCR petition, raising ineffective assistance of counsel and other claims. Counsel was assigned to represent defendant on PCR.

Defendant submitted an amended petition, alleging: (1) trial counsel rendered ineffective assistance for failing to interview a potential alibi witness and another witness who suggested that more than one person was involved in the shooting; (2) petitioner's guilty plea was not voluntary because the prosecutor entered his cell and pressured him to accept the guilty plea; (3) the guilty plea was not knowing because defendant was not adequately advised of his appellate rights; and (4) the court erred by refusing to allow defendant to withdraw his guilty plea when he specifically said he was not guilty of the charge.

The same judge heard the PCR petition. He did not grant an evidentiary hearing and denied the petition.

On appeal, defendant contends:

I. DEFENDANT'S PETITION FOR [PCR] IS NOT PROCEDURALLY BARRED BY RULE 3:22-4.

We are not persuaded by this argument.

Defendant argues that his claim of ineffective assistance "could not reasonably have been raised in any prior proceeding [because] his claims were dependent on information outside of the record." However, he submitted a statement in support of his motion to withdraw the guilty plea, asserting that he identified a woman who was his alibi and that trial counsel later advised him that "Rhonda . . . will not change her statement." We note that defendant did not appeal from the denial of his motion to withdraw his guilty plea. This information was obviously known by defendant at the time he filed a direct appeal. Moreover, we note that defendant has not presented any evidence that there is an alibi witness who is willing to testify that she was with defendant at a different location at the time that Smith was shot.

Based on this failure by defendant to present the testimony of the alleged alibi witness, the failure to appeal the denial of his motion to withdraw the guilty plea, and the failure to present a factual basis for his assertions, we conclude that defendant is barred from raising the issue of the alibi witness and the alleged misrepresentation by trial counsel by virtue of Rule 3:22-4. In short, the issues were raised before the conviction and should have been raised on direct appeal, not PCR.

We also conclude that defendant has failed to show remediable ineffectiveness of assistance by his trial counsel pursuant to the standard set by Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984), which was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant also contends:

II. DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING ON HIS CLAIMS.

We disagree.

A defendant in a PCR petition must make out a prima facie case of ineffective assistance at trial. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Mere allegations, unsupported by proof, are not enough. Ibid.

Here, defendant alleges, without proof, the existence of an alibi witness. As stated above, he does not even identify the alibi witness. He also asserts pressure from trial counsel and the prosecutor. However, his sworn statement on the record do not reflect such pressure. The burden is on defendant to show that he was pressured, not on trial counsel to show that defendant was not pressured. Ibid.

Here, there is no basis to conclude from the record that defendant was coerced or misled into entering the plea agreement. Moreover, the negotiated disposition reduced defendant's exposure from a potential life sentence to eighteen years. It is highly unlikely that defendant would have rejected this offer. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (applying the Strickland standard to a guilty plea case).

III. DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING AND/OR [PCR] BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT IN HIS PRO-SE PETITION FOR [PCR].

After a careful review of the record, we determine that these arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2). We simply add that there is no basis to upset defendant's plea, in which he freely admitted that he shot Smith over a dispute about money. The record shows that the judge meticulously advised defendant of his constitutional rights and the consequences of his guilty plea.

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Although the document is in affidavit form, the copy provided on appeal is not notarized.

In the plea form, in answer to question 20, defendant agreed to "waive appeal." R. 3:9-3(d). Nonetheless, defendant exercised his right to appeal. See Rule 3:21-4(b); State v. Gibson, 68 N.J. 499, 511-12 (1975) (permitting exercise of right to appeal notwithstanding the waiver).

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A-3897-05T4

July 29, 2009