STATE OF NEW JERSEY v. REGINALD SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6514-06T46514-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD SCOTT,

Defendant-Appellant.

________________________________

 

Submitted: June 3, 2009 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3198.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cynthia H. Hardaway, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Reginald Scott appeals the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm the June 5, 2007, order denying PCR because defendant's claim that he received ineffective assistance of counsel when he entered his plea lacks merit. However, we conclude that defendant's PCR counsel was ineffective because he failed to raise an ineffective-assistance issue with respect to appellate counsel, who failed to prosecute defendant's direct appeal, and we remand this matter to permit defendant to amend his PCR petition to assert this ineffective-assistance claim.

Defendant was charged on October 10, 1996, with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (Counts One and Two); two counts of first-degree felony murder, N.J.S.A. 2C:11-3a (Counts Three and Four); four counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (Counts Five to Eight); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Nine); and four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Ten to Thirteen).

Defendant, who was twenty years old at the time, pled guilty on August 1, 1997, to Counts One and Two, as amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; Counts Seven and Eight, first-degree armed robbery, N.J.S.A. 2C:15-1; and Count Nine, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. At the time of his plea, defendant had a prior fourth-degree conviction for pointing a firearm, which carried a maximum mandatory eighteen-month state prison term. As a result, mandatory extended-term sentences on all counts to which defendant pled guilty were required by the Graves Act, N.J.S.A. 2C:43-6c, d.

Defendant was sentenced on August 25, 1997. The judge found no mitigating factors and the aggravating factors were "[t]he circumstances of the offense in that 2 separate victims [were] killed[;] the serious of the harm inflicted in that the victim left behind family (at least one)[; and] the need for deterring [defendant] and others from violating the law," N.J.S.A. 2C:44-1a(1), (2), and (9). Accordingly, the judge sentenced defendant to two concurrent terms of sixty years on Counts One and Two with twenty-five years to be served without parole; two thirty-year terms on Counts Seven and Eight with fifteen years to be served without parole, to run concurrent to the term on Count One; and one ten-year term on Count Nine, to run concurrent to the term on Count One. All remaining counts in the indictment were dismissed at sentencing.

Defendant appealed his conviction and sentence, but the sentencing transcript was not available and we remanded the matter on October 16, 2001, for reconstruction of the sentencing hearing. After the November 16, 2001, remand proceedings, the matter was placed on our February 5, 2002, Excessive Sentencing Oral Argument calendar and we again remanded the matter to the sentencing judge on February 6, 2002, with specific instructions requiring that the reconstructed record "include a statement of reasons by the trial court for the maximum terms imposed." We did not retain jurisdiction. On February 25, 2002, the sentencing judge wrote to counsel and explained that he imposed the maximum term of sixty years because there were no mitigating factors and the aggravating factors "substantially and infinitely" outweighed the nonexistent mitigating factors. Defendant's appellate counsel did not move to restore the appeal thereafter.

Defendant filed a pro se PCR petition on May 14, 2002, which he supplemented on January 10, 2005, with a "Statement of the Facts." Defendant asserted he was innocent; his confession was coerced; he was pressured by his plea counsel to accept the deal offered by the State; and his counsel told him that he had no option and advised him the judge promised "to go down on the sentencing." He also averred that several days after the plea he communicated with his attorney and asked if he would "come out of this with a sentence of 12 - 25 years or close to it," to which his counsel replied that he could not be sure what the judge would do. As a result, defendant told his counsel that he wanted to withdrawn his plea because that was not the deal, but his attorney told him it was too late. He claimed that, had he known the judge would only take five years off the mandatory minimum, he would have agreed to the offer of "30/30." Defendant also asserted that counsel had failed to prosecute an appeal from the sentences imposed.

Defendant's petition was heard on October 21, 2005, by the judge who took defendant's plea and imposed sentence. The judge did not conduct an evidentiary hearing, although defendant was prepared to present testimony at that time. The judge found defendant's affidavit "totally incredible" in light of the transcript of the plea hearing, that his plea counsel was "probably one of the finest criminal practitioners statewide and is somebody who has extensively represented defendants not only in homicide cases, but is I think virtually now the prime person that the Public Defender's Office uses statewide in capit[a]l cases." The judge concluded that there was no credible basis for a finding of inadequate representation at the time of the plea and denied PCR. An order to that effect was entered on October 31, 2005.

Defendant appealed the denial of PCR and we reversed on the ground that defendant's petition required an evidentiary hearing. State v. Scott, No. A-2381-05, slip op. at 9 (App. Div. Jan. 23, 2007). We found the judge was in no position to determine the credibility of defendant's sworn statements and reject defendant's contention that his attorney "failed to explain the consequences of his guilty plea and then, when defendant expressed his misunderstanding of or dissatisfaction with the plea agreement, dissuaded him from moving to vacate his plea prior to sentencing." Id., slip op. at 9-10 (footnote omitted). We also specifically permitted defendant to seek leave to amend his PCR application "to include a claim of ineffective assistance of counsel with regard to the failure of appellate counsel to further pursue defendant's direct appeal." Id., slip op. at 10-11.

An evidentiary hearing was conducted on April 26, 2007, before a new PCR judge who, as an assistant prosecutor, signed the October 10, 1996, indictment charging defendant with the crimes here at issue. Both defendant and his plea counsel testified on that occasion. Plea counsel could not remember if defendant sought to withdraw his plea, acknowledging he may have done so. Closing arguments were made on May 10, 2007, and the judge issued a written decision on June 5, 2007, denying PCR.

The judge summarized defendant's testimony and his admissions on cross-examination that he was not forced to give the answers he did at the plea hearing, that he did not express any reservations at that time respecting the terms of the plea, and that he did not question the terms of his sentence and plea counsel's competence until four and one-half years after his conviction. The judge also summarized plea counsel's testimony, who denied telling defendant it was likely the judge would impose a sentence of twenty-five years with half that term to be served without parole. The judge also noted plea counsel could not remember if defendant had contacted him after the plea seeking to have it vacated.

The judge found little credibility in the testimony and prior "affidavit" of defendant because defendant "admitted simply to 'hoping' for a sentence of 25 years with 12 period of parole ineligibility." He found defendant did not raise any concerns during his plea or sentencing and waited four and one-half years after his plea to submit a PCR petition. He observed, "The plea form and plea colloquy indicate Petitioner's desire to plea[d] guilty and exhibits a clear understanding of the sentence he was facing." He also found plea counsel's testimony credible. The judge concluded:

There is simply no evidence that Petitioner's counsel was deficient in any way. A Defendant's hopes are limited by the charges to which they plead guilty. Hoping for a sentence of 25 years with 12 does not give rise to ineffective assistance if it cannot be obtained. [Plea counsel] is not alleged to have promised the Petitioner 25 years with 12. Petitioner admits that he hoped to get that sentence. Petitioner's claim that he attempted to contact [plea counsel] to vacate his plea soon after it occurring is not substantiated by any evidence. Even if Petitioner did express his desire to vacate the plea to [plea counsel], he failed to contact the Judge and made no attempt to contact anyone regarding this desire until 4 years later. Thus, Petitioner has failed to satisfy the deficiency prong of Strickland.[] . . . .

In addition, the impact of Petitioner's claims of error was not prejudicial, either individually or in the aggregate, to the Petitioner's plea. Therefore, even if, arguendo, Petitioner's trial counsel's performance was deficient, he has failed to demonstrate a reasonable likelihood on the second prong of the Strickland test.

An order denying PCR was entered on June 5, 2007. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE COURT SHOULD HAVE BEEN DISQUALIFIED FROM HEARING DEFENDANT'S POST-CONVICTION RELIEF EVIDENTIARY HEARING.

POINT II - THE COURT ERRED IN ITS FINDING THAT DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III - DEFENDANT'S PCR COUNSEL FAILED TO RAISE AN INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM IN VIOLATION OF RULE 3:22-6.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. We review fact-findings for clear error and accord defer ence to credibility determinations. Ibid.

The first issue on appeal is a mixed question of law and fact. Defendant argues that the Code of Judicial Conduct, Canon 3(C)(1)(a) and (b), required the new PCR judge's recusal because he served as a lawyer in the matter in controversy. This issue was not raised at the PCR evidentiary hearing. However, we "may, in the interests of justice, notice plain error not brought to the attention of the trial . . . court." R. 2:10-2. Rule 1:12-1(c) requires sua sponte disqualification where the judge has been the attorney of record in the action and Rule 1:12-1(f) requires sua sponte disqualification "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Because the rule does not require a party to make a motion, we must determine whether the judge's failure to sua sponte recuse himself was plainly erroneous.

We have twice found that a judge who presided over a criminal trial was disqualified from doing so under Rule 1:12-1(f) when the judge had been the assistant prosecutor who presented another case against the same defendant to a grand jury returning an indictment. State v. Kettles, 345 N.J. Super. 466 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002); State v. Tucker, 264 N.J. Super. 549 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

In Kettles, defendant appealed from the denial of PCR, urging that a new trial was required because the trial judge should have disqualified herself. Kettles, supra, 345 N.J. Super. at 470. We applied Rule 1:12-1(f) and Canon 3C(1) and concluded that the trial judge, who had served as the assistant prosecutor securing an indictment on one matter against Kettles and who recognized Kettles, should have sua sponte recused herself from presiding over Kettles' trial on the matter before us and that the PCR judge erred in failing to order a new trial even in the absence of any evidence of bias. Ibid. We observed, "Defendant was entitled to have a judge preside at his trial who had no disqualifying interest in the case. Having been convicted and eligible for an extended term, the public could reasonably expect defendant would receive the sentence for which he was eligible." Id. at 471. We concluded, "The trial judge's prior involvement with defendant, however, prevented fulfillment of those expectations." Ibid.

We had earlier considered almost the exact same issue on direct appeal in Tucker, supra, 264 N.J. Super. at 553, where the trial judge did not recognize Tucker. There, the judge, while serving as an assistant prosecutor, had presented two unrelated cases involving defendant to the grand jury. We quoted paragraph (2) of an Administrative Directive issued on September 19, 1983: "'A judge should disqualify himself from hearing a criminal matter involving a defendant who the judge, in his previous capacity, had personally prosecuted or defended. . . .'" Id. at 555 (quoting State v. McNamara, 212 N.J. Super. 102, 108 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987)). Citing McNamara, supra, 212 N.J. Super. at 109, for the proposition that Administrative Directives have "'the full force and effect of law,'" we applied Canon 3C(1), Rule 1:12-1(f), and the quoted Administrative Directive to the facts before us. Tucker, supra, 264 N.J. Super. at 554-55. We concluded:

While an assistant prosecutor who presents a case to a grand jury does not have the same degree of involvement with the defendant as one who actually tries a case, he is involved in "personally prosecuting" the defendant and thus would be included under this directive. . . . We conclude that such involvement has the capacity to undermine public confidence in the impartiality of the judicial system.

[Id. at 555.]

Because Tucker's motion for recusal should have been granted, we reversed his conviction. Ibid.

The State contends it is not clear whether the new PCR judge here actually presented the case to the grand jury. It compares the signature on the indictment with the signature on the order denying PCR and suggests it is not clear that the new PCR judge even signed the indictment. In any event, the State argues if the judge presented the evidence to the grand jury, his prior involvement was too remote from the PCR proceeding to lead a reasonable person to believe defendant did not receive a fair hearing.

We find the State's reliance on McNamara misplaced. There, the trial judge was the First Assistant Prosecutor at the return of the indictment charging McNamara in the case on appeal. McNamara, supra, 212 N.J. Super. at 108. McNamara sought a new trial, in part because the judge failed to sua sponte disqualify himself from presiding over the new trial. Ibid. The trial judge denied this portion of the motion under the same Administrative Directive, which we quoted as follows:

"A judge need not disqualify himself from hearing a criminal matter which was pending at the time when the judge served as an assistant prosecutor or assistant public defender, if the judge had no direct involvement with the matter."

. . . .

"As an assistant, the judge would not have been charged with the overall responsibility for the conduct of the case, disqualification is therefore unnecessary absent direct involvement in the investigation, review or trial of the matter in question."

[Ibid. (quoting Administrative Directive, "Disqualification of Judges in Criminal Matters," 3 (Sept. 19, 1983)).]

We concluded that we were bound by this Administrative Directive because the trial judge in acting as the First Assistant Prosecutor with supervisory responsibility over all trial attorneys "would not have been charged with the overall responsibility for the conduct of the case." Ibid.

We agree it is not clear whether the new PCR judge had direct involvement in the presentation of evidence to the grand jury or directly supervised this case while acting as an assistant prosecutor. However, we are extremely reluctant to remand this 2002 PCR application for determination of the judge's actual involvement in the presentation of evidence to the grand jury and preparation and execution of the indictment. Defendant should have sought a remand of this issue before he filed his appellate brief on the merits. Nonetheless, we cannot ignore the issue due to defendant's and the public's interest in the impartial administration of justice in a criminal case such as this one.

The Supreme Court has recognized that we may exercise our discretion to invoke our original jurisdiction when considering the denial of PCR where a defendant asserts ineffective assistance of counsel. Harris, supra, 181 N.J. at 419-20 (exercising original jurisdiction based on objective evidence in the record without considering the credibility determinations made by the PCR judge). Because the issues raised by defendant on the merits of his PCR petition are ineffective-assistance claims, we will exercise our original jurisdiction to decide the issues without considering the credibility determinations made by the new PCR judge in this case. As a result, defendant's claim that the judge should have recused himself becomes moot, as does the issue he has raised with respect to the judge's adverse credibility determination.

In Strickland, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692, the Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate the professional errors prejudiced him or her to the extent that defendant was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

Defendant contends the PCR judge "erred in reaching the conclusion that defendant received effective assistance of counsel with regard to [his] attempt to withdraw his guilty plea." Defendant's plea counsel was not able to recall whether defendant sought to withdraw his plea. Thus, defendant's sworn testimony that he did so stands unrebutted. For the purpose of this opinion, we assume that a failure to file a motion to withdraw a guilty plea where a defendant tells his attorney he is innocent and misunderstood the penal consequences of his plea constitutes a serious professional error satisfying the first prong of Strickland. Thus, we examine the objective record to determine whether defendant has demonstrated he was prejudiced as a result of this professional error.

A motion to withdraw a guilty plea is committed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally where the motion is made before sentencing. Slater, supra, 198 N.J. at 156 (citations omitted). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Defendant bears the burden to demonstrate that fairness requires withdrawal of his plea and he must make that showing upon a balance of competing factors. State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993). Those factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (citation omitted).

With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress[ed his] claim." Ibid. (citations omitted).

With respect to the second factor, the nature and strength of defendant's reasons for withdrawal, the Court identified four examples "of reasons warranting withdrawal of a plea." Id. at 159. They are as follows:

(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) defendant's reasonable expectations under the plea agreement were not met; and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credible demonstrated why that defense "was forgotten or missed" at the time of the plea.

[Id. at 159-60 (citations omitted).]

Although we are not to approach the reasons for withdrawal with skepticism, we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (citation omitted).

The third Slater factor, whether the plea was entered as the result of a plea bargain, although satisfied here, is entitled to little weight, as the Slater Court recognized. Id. at 161. As to the fourth factor, "[t]he State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162. It offered no such proof here.

Applying the Slater standards to the second prong of Strickland compels us to conclude that the failure of plea counsel to move to vacate the plea did not prejudice defendant. He testified under oath at the plea hearing that he wanted to plead guilty to certain charges against him and he understood what those charges meant. He swore he voluntarily signed the three-page plea form, which he understood before he signed it, and initialed the first two pages. He affirmed that the contents of the plea form were true. He testified that his plea counsel had spoken with him, explained the charges, and answered any questions he had. He told the judge that he was satisfied with his counsel's advice.

Defendant also testified that he understood the prosecutor would recommend a sentence not to exceed sixty years of which thirty years would be parole ineligible and the judge was not bound by the plea agreement. He acknowledged if the sentence was greater than the recommendation, he could withdraw his plea and go to trial on all charges. Defendant admitted he was eligible for an automatic extended term on many of the charges in the indictment and could be sentenced to life imprisonment with fifteen to twenty-five years being parole ineligible on the murder and armed-robbery charges. He stated that he knew what sentences he faced on the other charges and understood the fines and penalties that could be imposed. The judge then asked, "Do you also understand that no one can tell what my actual sentence will be?" Defendant replied, "Yes." The judge then queried defendant respecting the rights he would be giving up by pleading guilty and defendant testified that he understood he was surrendering all of rights the judge mentioned.

After the judge finished his voir dire of defendant, defendant testified to the facts relevant to the charges he was admitting that day. He testified that on June 12, 1996, he was on Northford Avenue, Newark, at 11:45 p.m. when he tried to rob a man's gold chain and he "shot the Jeep up." He testified that four people were in the Jeep and he shot two of them before he went home. He had a nine millimeter gun but did not remember how many shots he fired. After being shot, the driver was not able to continue driving. Later, he learned that two people in the car died. The judge then asked if defendant's plea was entirely voluntary and he said that it was. As a result, the judge accepted his plea.

At his PCR evidentiary hearing, defendant testified his plea counsel told him that the judge would "take off some time at the sentencing day from the negotiated plea of 60 with a 30" but his attorney said he could not give him a specific number. It was defendant's expectation that he would receive a maximum of twenty-five years with twelve years as a minimum; that was what he was hoping to receive. He admitted his expectation was not based on anything his attorney said. Defendant explained that the first plea offer was "60 with a 30," which he rejected. The second plea offer was "30 with a 30," which he also rejected. The third offer was "60 with a 30, again," with which he said he could not live. When defendant's counsel could not tell him how much time the judge would cut off the plea agreement, defendant told his attorney to withdraw the plea. This occurred two or three days after he pled guilty. Defendant testified that his attorney told him it was too late, defendant had accepted the plea agreement, and that defendant could not "win the case, after I kept saying I was innocent[t]." Defendant then accepted his attorney's advice that it was too late to withdraw his plea. He admitted that he did not mention anything about this to the judge at sentencing.

On cross-examination, defendant admitted that he knew he was a Graves Act offender subject to an extended term. He admitted that his "Statement of the Facts" was prepared eight and one-half years after his guilty plea. He further admitted that he answered "yes" to the questions on the plea form, including the questions about whether he committed the crimes to which he was pleading guilty and whether he understood what the charges meant. He admitted that the prosecutor's recommended sentence was disclosed on the plea form on a page that he initialed. He also denied on the plea form that any promises or representations other than those contained in the plea agreement had been made by his defense attorney or anyone else as part of the guilty plea or had caused him to plead guilty. Finally, he admitted he indicated on the plea form he was satisfied with the advice he received from his attorney and had no questions about the plea agreement.

After reviewing the transcript of his guilty plea, defendant admitted the transcript reflected what happened in court that day and that he was not forced to give the answers he did. He also admitted giving the answers reflected in the transcript to questions seeking to establish the factual basis for his guilty plea and stated he was not forced to give the answers. He further admitted that he did not express any misgivings or reservations to the judge at the plea hearing, but explained he did not do so because he "already had it in my mind that I was going to get a lesser sentence." He also did not express any misgivings or reservations at his sentencing because he trusted his attorney, who had told him it was too late to withdraw his plea.

On redirect examination, defendant testified he said at the plea hearing no one could tell what the judge's actual sentence would be. However, the plea form said, "If you are pleading guilty to [a charge requiring a mandatory period of parole ineligibility], the minimum mandatory period of parole ineligibility is 10 years . . . ." Although defendant claimed he relied on this number, but then said, "I probably didn't even read it, I trusted my attorney." On further cross-examination, defendant testified "nobody promised me nothing, but we had an agreement that on sentencing date I would not be sentenced to 60 with a 30." Ultimately, he admitted he was not "sentenced to 60 with 30" but was sentenced to "60 with 25."

Defendant did not testify that his counsel made any promises or statements to him about sentencing that were not true and that he relied on them in agreeing to plead guilty. He did not even seek to impeach his testimony at the plea hearing where he set forth a factual basis for the charges to which he was pleading.

Defendant did not present any specific, credible fact to support his bare, unsworn claim that he was innocent. Thus, he has not satisfied the first factor we are required by Slater to consider. As to the second factor, we assume that defendant was credible in his testimony. However, he clearly acknowledged that he sought to withdraw his plea, not because of any of the four examples of justifiable reasons identified by Slater as quoted above, but because his foundationless "hopes" were not realized. This is an insufficient reason for withdrawal of a plea where the penal consequences were plainly spelled out in the plea form and described on the record at the time of defendant's plea. We are satisfied that the judge who accepted defendant's plea would have denied a motion to vacate it because defendant admitted that no one had promised him a maximum sentence of thirty years or less and that the "agreement that on sentencing date [he] would not be sentenced to 60 with a 30" was in fact honored, assuming that such an "agreement" ever was made. Because defendant has not proven that he even had a colorable basis for withdrawing his plea, defendant has not met his burden to prove prejudice under the second prong of Strickland.

The third issue on appeal is a claim by defendant that his PCR counsel was ineffective for failing to raise an ineffective-assistance claim with respect to his appellate counsel. When we remanded this PCR application on January 23, 2007, we observed that defendant did not pursue his direct appeal from the sentence imposed following the guilty plea as being excessive or otherwise requiring modification. Scott, supra, slip op. at 6. In remanding, we specifically stated that our holding did not preclude defendant from seeking leave to amend his petition to include an ineffective-assistance claim with respect to his appellate counsel's failure to prosecute his direct appeal. Id. at 10-11. Defendant contends that his PCR counsel was ineffective in that he did not move to amend defendant's PCR petition to make this ineffective-assistance claim.

The State asserts we should conclude that appellate counsel was not ineffective because we held in State v. Soto, 385 N.J. Super. 247, 255 (App. Div.), certif. denied, 188 N.J. 491 (2006), that a defendant waives his right to argue excessive sentencing by engaging in a negotiated plea. Thus, the State argues defendant's appellate counsel could not appeal the sentence as excessive as to do so would constitute raising a frivolous issue on appeal and, consequently, PCR counsel was not ineffective in failing to seek leave to amend defendant's PCR petition.

In Soto, defendant contended the sentencing judge engaged in impermissible judicial fact-finding when the judge based the sentence imposed on facts not admitted by defendant in his plea, violating the holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We held:

By agreeing to a plea agreement containing a sentencing recommendation of eighteen months with an equivalent parole disqualifier, rather than proceeding to trial, defendant waived any objection that the eighteen-month base sentence was excessive. The base sentence was within the statutory range for the offense, albeit the maximum of that range. If defendant had an objection to such a sentence, he should have raised it during negotiations with the State for the plea agreement or before the sentence was pronounced. Defendant cannot legitimately complain that the sentence was unexpected or that he received a sentence other than that for which he explicitly negotiated. Under such circumstances, Blakely does not apply.

[Ibid.]

This argument is premature because we do not know what issues might have been raised with respect to the sentence. Although our calendar is called "Excessive Sentencing Oral Argument," more issues than mere excessiveness are raised in these appeals. We do not have a record that would permit us to come to the conclusion urged by the State. As a consequence, we reverse and remand to permit defendant to raise the issue of ineffective assistance of appellate counsel. If the matter is assigned to the same PCR judge, he shall first determine whether his recusal is required.

 
Affirmed in part and reversed and remanded in part.

Defendant also pled guilty to fourth-degree aggravated assault, N.J.S.A. 2C:12-1b, with which he had been charged in a separate accusation. The plea to this accusation and the eighteen-month concurrent sentence imposed are not at issue in this appeal.

Defendant's January 10, 2005, supplementation was not in affidavit or certification form and he did not aver the truth of his "Statement of the Facts." As a result, this document was not evidential and our consideration of defendant's ineffective-assistance claims is limited to the testimony he offered at the subsequent evidentiary hearing on his PCR petition.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The direct appeal was dismissed for lack of prosecution.

(continued)

(continued)

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A-6514-06T4

 

July 27, 2009