STATE OF NEW JERSEY v. STACEY FAULCON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3030-08T43030-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STACEY FAULCON,

Defendant-Appellant.

__________________________________

 

Submitted March 15, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-1531.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel; Gary J. Bogdanski, on the brief).

PER CURIAM

Defendant Stacey Faulcon appeals from the trial court order dated August 28, 2008, denying his petition for post-conviction relief (PCR). Defendant had sought to overturn his conviction on the basis that a plea offer had been made during trial that his defense attorney failed to present to him. After conducting a plenary hearing on this issue, in which defendant and the assistant prosecutor testified, the trial court found that no such offer had been made and denied the petition. We affirm, concluding that the record contains sufficient credible evidence to support this decision.

On April 30, 1998, defendant was convicted by a jury of second degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first degree attempted murder N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (counts four and six); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts five and seven); third degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count ten); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven). He received an aggregate sentence of life imprisonment plus forty years with fifty years of parole ineligibility. The trial court also imposed the requisite monetary penalties and assessments.

Defendant's conviction and sentence were affirmed on appeal. State v. Faulcon, No. A-6455-97 (App. Div. Sept. 29, 1999), certif. denied, 163 N.J. 79 (2000). On August 16, 2002, defendant filed his PCR petition. Among his numerous contentions, defendant asserted that "Trial Counsel was Ineffective for not Informing Defendant of a Favorable Plea Bargain Offer." The trial judge denied defendant's PCR petition on February 14, 2006, without an evidentiary hearing.

Defendant appealed the denial of his PCR petition to this court. We concluded that defendant's PCR petition with respect to the alleged plea offer "raised a prima facie claim of ineffective assistance of counsel that should not have been denied without affording defendant the opportunity to present testimony and evidence in support of his assertions." State v. Faulcon, No. A-4365-05 (App. Div. Jan. 28, 2008) (slip op. at 16) (citing State v. Pyatt, 316 N.J. Super. 46 (App. Div.), certif. denied, 158 N.J. 72 (1999)). The balance of defendant's contentions on appeal were found to be without merit, Rule 2:11-3(e)(2), or barred by Rule 3:22-5. Id. at 15. We remanded the case to the trial court "for a hearing on defendant's claim that his trial attorney failed to inform him of a favorable plea offer." Id. at 17.

Judge Petrolle, who had been the trial judge, conducted the PCR hearing on August 28, 2008. The State presented the testimony of the assistant prosecutor who had tried defendant's case. He stated unequivocally that no plea offer had been made to defendant before or during the trial. He explained that in Essex County, the prosecutor's office does not initiate plea offers in homicide cases and will only engage in plea negotiations when it is approached by the defense indicating that the defendant will admit responsibility for the homicide.

Defendant testified at the PCR hearing that during his trial, while the jury was deliberating, his attorney told him that the State had offered "twenty-five with a seven," but that the attorney had denied the offer. Defendant testified that if he had been given the opportunity to accept the plea offer at that time, he would have done so.

The trial judge found the assistant prosecutor's testimony to be "completely credible." He observed that the assistant prosecutor's testimony with respect to the practice of the prosecutor's office was unchallenged. In rejecting defendant's contention that a plea offer of "twenty-five with a seven" had been made, the trial judge noted the strong proofs that the State had presented in the case, which involved an execution type murder, and which "makes it very difficult to fathom why the State with those kinds of proofs would [have made] this sort of an offer." He further noted that defendant's testimony "[was] not sensible" nor did it "square with the practice at the time or common sense." He noted that under the applicable law, the period of parole ineligibility would be at least one third of the period of imprisonment. While there "may very well have been a hope or a conjecture on [defendant's] part" that such an offer had been made, the trial court did not find defendant's testimony credible, and concluded that defendant had failed to prove his claim. The PCR petition was denied.

Defendant appeals that decision, making the following contention:

TRIAL COUNSEL'S INEFFECTIVENESS, BY UNILATERALLY REJECTING THE STATE'S PLEA OFFER, MANDATES THAT DEFENDANT'S CONVICTIONS BE REVERSED.

Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitution. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). They are properly raised in post-conviction relief proceedings. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). A defendant's constitutional right to counsel is violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.

The burden is on defendant to prove by a preponderance of the evidence that he is entitled to post-conviction relief. State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990). This defendant did not do. After conducting an evidentiary hearing, the trial court found credible the testimony of the assistant prosecutor that no plea offer had been made to defendant. The trial court did not believe defendant's testimony about a plea offer. Deciding what testimony to believe and what testimony not to believe is the provenance of the trier of fact. See State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div.) (stating the appellate court should "defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses, an opportunity that we appellate judges are not afforded"), certif. denied, 169 N.J. 609 (2001). We "must accept a trial court's factual finding if it is supported by sufficient credible evidence in the record." State v. Arthur, 184 N.J. 307, 320 (2005). A review of this record indicates that this standard has been met.

 
Affirmed.

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A-3030-08T4

April 9, 2010