STATE OF NEW JERSEY v. DONTAE DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3156-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONTAE DAVIS a/k/a

DONTAE GREEN,

Defendant-Appellant.

_______________________________

May 12, 2011

 

Submitted January 26, 2011 - Decided

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-09-1208, 03-01-0129, 05-01-0019, 05-01-0021.

Dontae Davis a/k/a Dontae Green, appellant pro se.

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Dontae Davis appeals from the August 10, 2006 order denying his post-conviction relief (PCR) request to vacate his guilty plea. Our May 11, 2009 order allowed the appeal to be filed as within time.

On appeal, defendant argues:

POINT I

THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO UTILIZE AND INVESTIGATE AN AUDIO TAPE THAT CONTAINED EXCULPATORY EVIDENCE.

 

POINT II

THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO REQUEST A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF A HIGHLY SUGGESTIVE SINGLE PHOTO IDENTIFICATION.

 

POINT III

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIM AT THE MOTION TO WITHDRAW GUILTY PLEA THAT HIS PLEA WAS NOT KNOWING AND VOLUNTARY AND APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT IV

THE APPELLANT WAS DENIED PROCEDURAL DUE PROCESS BY THE TRIAL COURT, DEFENSE ATTORNEY DAVID SCHROTH AND DEFENSE ATTORNEY LANCE D. BROWN WHERE THEY FAILED TO COMPLY WITH THE COURT RULES GOVERNING APPEALS.

 

POINT V

THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

 

We affirm.

These facts are taken from the plea allocution hearing, held on January 4, 2006. On May 4, 2004, defendant was arrested in connection with a number of criminal incidents for which he was later indicted. The record contains piecemeal information regarding the nature of the events and the resulting charges.1 We glean these charges were included among those in the numerous indictments: (1) on May 16, 2002, defendant acted as a lookout assisting the street sale of narcotics, resulting in charges under Indictment No. 02-09-1208 that included third-degree aiding and abetting possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-10; (2) on November 1, 2002, in retaliation for an earlier incident, defendant fired one or more shots from the front passenger seat of a vehicle into a residence as he rode past the home, for which he was charged in Indictment No. 03-01-0129 with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); (3) on April 20, 2004, defendant and another confronted two individuals walking along the street, and defendant lifted his shirt revealing a gun while his companion robbed the men, for which Indictment No. 05-01-0019 charged defendant with armed robbery, N.J.S.A. 2C:15-1(a); and (4) on April 29, 2004, defendant shot and robbed Juan Morales as Morales began to walk away following an altercation, for which defendant was charged under Indictment No. 05-01-0021 with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), second-degree robbery, N.J.S.A. 2C:15-1(b) and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a).

Once defendant was apprehended, he was taken into police custody, placed under arrest and directed to an interview room. While unattended in the police interview room, defendant removed a ceiling tile and climbed into the ceiling to hide. He was charged under Indictment No. 04-09-0617 with third-degree criminal attempt to commit escape, N.J.S.A. 2C:29-5(a). Later he was separately charged with fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1(a), under Accusation 06-01-009.

On the eve of trial on Indictment No. 04-09-0617, additional exculpating information was presented to the State and a plea agreement was discussed. That morning, counsel reviewed with defendant the terms of a detailed plea agreement encompassing all charges from these five incidents. Defendant stated he would accept the plea offer.

Later the same afternoon, Judge Maryann Bielamowicz thoroughly explained the rights defendant would be waiving by pleading guilty and painstakingly reviewed the pages of the plea form and its supplements, inquiring whether defendant understood each provision and assuring herself that his decision to plead guilty was voluntarily made.

Prior to examining defendant regarding the plea, the court first asked:

Q: [Are] you under the influence today of any substance[,] including any medication that might affect your ability to understand what's happening here today? Are you on any medication at all?

 

A: Yes, I'm on medication, but I understand what you are saying.

 

Q: What kind of medication are you taking?

 

A: I don't know exactly what it is.

 

Q: So far you understand everything that I have said to you?

 

A: Yes, ma'am.

 

Q: You understood the discussions with your attorney as well?

 

A: Yes, ma'am.

 

Next, the court questioned whether defendant had discussed the plea agreement with counsel; had sufficient time to review its terms, the consequences of the plea and the recommended punishment; and had asked counsel any questions he had about the terms of the agreement. Defendant responded affirmatively to each of these inquiries.

The judge read the charges in each indictment to which defendant would be entering a plea. On each separate offense, she asked defendant to recite the facts of the incident and provide the factual basis for his guilt. As defendant did so, the court then inquired whether he was guilty or not guilty of the offense.

Defendant faced a possibility of more than fifty years imprisonment if found guilty on all of the charges. However, the plea agreement recommended an aggregate term of fifteen years subject to the eighty-five percent period of parole ineligibility and five years of parole supervision as set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The aggregate sentence imposed on January 20, 2006 was fourteen years subject to NERA.

Defendant notes the court did not inquire as to why he responded negatively to question 23, which asked: "Are you satisfied with the advice you have received from your lawyer?" Satisfied defendant knowingly and voluntarily made his decision, the court accepted his guilty pleas. Defendant also asserts counsel did not pursue an appeal.2

Defendant appealed his conviction and sentence on June 13, 2007, which we dismissed as untimely. On defendant's behalf, privately retained counsel filed a petition for PCR. Three claims of attorney neglect were asserted. First, an assertion that counsel lost an audio tape of a telephone call placed by an individual identified as "Quadir" to defendant's mother, who offered to state defendant was not involved in the shooting of Morales in exchange for $5,000. Defendant asserted it was Morales' voice on the tape. Additionally, counsel was charged with being ineffective because he did not seek a Wade3 hearing to review Morales' out-of-court identification of defendant and, otherwise, was unprepared to commence trial. Finally, defendant asserted he was given an unknown medication prior to the plea hearing that made him sleepy. Because he wanted to leave the courtroom to go to sleep, counsel was alleged to have advised that defendant just "answer all questions agreeing to any fact pattern in order for the plea to be accepted" to allow defendant to leave.

Following her review of the PCR petition, Judge Bielamowicz scheduled an evidentiary hearing, which was held on August 7, 2006. Defendant's former counsel testified. Counsel admitted he was unable to locate the tape, but emphasized its content was not exculpatory because the individual did not identify himself as Morales and, more importantly, its content was "bizarrely suspicious" as defendant's mother prompted Quadir to suggest defendant was not involved in the shooting although Quadir never said he saw the incident.

Also, counsel challenged the claims of unpreparedness. He stated a motion for a Wade hearing was filed along with the pre-trial order. The court was to consider the motion immediately before trial and conduct a hearing if granted. Any review was obviated by defendant's entry of his guilty pleas. Additionally, counsel noted the State had expressed its intention that if defendant did not accept the plea agreement, it would try each of the five cases against him one after the other and it was agreed the escape case would be the first tried, for which his opening was prepared.

As to defendant's motivation to enter his plea, defendant was informed on the day he entered his plea that if he was found guilty of escape following the first trial, he would be classified in prison as "an escape risk," and subject to certain restrictions. Defendant spoke to his father about the agreement and its consequences before stating he wanted to enter a plea.

Defendant's mother, Patricia Davis, testified regarding the telephone calls she received. Although the caller would not give his real name, he suggested he was "the victim of [defendant's] case and he would sign an affidavit if [defendant's mother] paid him $5,000." She gave counsel the tape. Initially, counsel advised he would clean up the tape and play it for the prosecutor; later he stated he did not do so because he "didn't think it was valid." Defendant's father, Dennis Johnson, confirmed these facts.

The trial court easily dismissed the claims regarding the Wade hearing and the alleged impact of defendant's medication, as each of these claims was unsupported and in fact belied by the record. On the loss of asserted exculpatory evidence, the court found the testimony of defendant's parents to be incompatible and conflicting and therefore concluded it was not believable. Further, the judge determined the evidence had little or no value. The vagueness of the identity of the speaker was unlikely to have survived the State's challenge.4 Finally, the court rejected as unfounded the suggestion that counsel was not prepared for trial.

The court denied the PCR petition as defendant failed to present a basis to set aside his pleas, determining he had been properly informed of and adequately understood the consequences thereof and entered his pleas freely and voluntarily. This appeal ensued.

When analyzing whether counsel for a convicted defendant provided ineffective assistance during trial, the United States Supreme Court has held "the defendant must show that counsel s representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007).

In assessing the first prong, "[j]udicial scrutiny of counsel s performance must be highly deferential" and "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. To successfully present a post-conviction challenge warranting reversal of a conviction, defendant must point to specific errors that rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 657, 668 n.26 (1984); Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694. "[P]urely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 64.

Proofs supporting the second prong of the Strickland test require that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). In order to prove this, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Applying these standards to the circumstance where a defendant seeks to vacate a guilty plea as part of an ineffective assistance of counsel claim, "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Therefore, before withdrawal of a guilty plea is permitted, a defendant must establish that the lack of knowledge or mistaken understanding of the consequences of the plea was material to the decision to plead guilty. State v. Johnson, 182 N.J. 232, 241-42 (2005). A guilty plea will not be vacated if knowledge and proper understanding of the consequences would have nevertheless resulted in defendant s decision to plead guilty. State v. McQuaid, 147 N.J. 464, 495 (1997).

On appeal, defendant argues counsel's failure to utilize the exculpatory audiotape deprived him of his Sixth Amendment right to counsel, requiring his plea be set aside. We disagree.

During the evidentiary hearing, defendant's parents testified as to the contents of the tape. Neither provided a clear identification of the speaker. Davis, who conducted the recording and admitted the tape contained static as she was "not very good at taping[,]" testified the recording featured a man named Quadir demanding the money in exchange for an exculpating affidavit. Johnson, on the other hand, described a woman's voice making a demand for payment and Morales making statements in the background.

In addition to weaknesses regarding the identification of the speaker and the inconsistencies in the tape's content, defense counsel expressed concerns that the tape was "concocted." Based on Davis' prompting of the speaker, the speaker's failure to state he witnessed the shooting and that the tape provided no clear link to Morales, counsel declined to release the tape to the State for fear it might lead to additional charges against defendant or his parents regarding the manufactured evidence.

We are in accord with Judge Bielamowicz's analysis of counsel's competence on this issue. The tape's authentication was seriously compromised and defendant's suggestion that his parents believed the caller was Morales is not dispositive as neither demonstrated prior contacts necessary to identify the otherwise unknown caller. Further, if the tape was a contrivance, counsel's release to the State risked exposing defendant and his parents to further criminal charges.

Even assuming counsel lost the tape, the quality of defendant's plea is not affected. Defendant's sworn testimony during his plea hearing provided details of the crime and an unequivocal statement that he shot Morales in the backside and stole jewelry. In the unlikely event defendant was acquitted of Morales' shooting, the sentence on the remaining charges he faced, including armed robbery, escape, CDS distribution and weapon's offenses, exceeded the recommended sentence in the plea agreement. Defendant has not shown he would have rejected this favorable arrangement in favor of going to trial on all five incidents. We conclude defendant's arguments do not present sufficient evidence to set aside his plea on the basis that it was involuntarily made.

The remaining arguments raised in support of defendant's request to set aside his plea are unavailing and without sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(2). We add these brief comments.

Counsel in fact filed a motion seeking a Wade hearing to challenge Morales' out-of-court identification as suggestive and unreliable. See State v. Madison, 109 N.J. 223, 231-33 (1988) (reciting the balancing test of the State's necessity to use an out-of-court identification against a defendant's right to be protected against unreliable eyewitness testimony). The hearing would have been held but for defendant's decision to enter a plea.

In any event, because Morales and defendant knew each other, the success of defendant's motion, and even the State's need for the evidence, was seriously in doubt. It was undisputed that defendant and Morales had previously known each other because they were in prison together and that the two argued before Morales was shot. The out-of-court identification had little or no impact on the strength of the State's case, and therefore, would not have seriously impacted defendant's decision to plead guilty.

We reject defendant's contention that his motion to withdraw his pleas was erroneously denied. There is no evidence supporting defendant's claim that counsel was unprepared or that defendant's cognition was impaired by medication. As to counsel's preparedness, the record of the proceedings provided on appeal reflects an attorney very familiar with the various aspects of the case. Counsel had just completed trying a multi-day competency hearing. After the court found defendant competent to stand trial, it instructed counsel that the first trial would be on the charges resulting from defendant's attempt to escape from custody.

Despite defendant's dissatisfaction with counsel's performance, there is no suggestion that his guilty pleas were a product of coercion or pressure. During the extensive plea colloquy, defendant responded to the court's questions, repeatedly assured the judge he understood what he was doing and was familiar with the consequences. Judge Bielamowicz gave defendant many opportunities to ask questions, express any objections or correct possible misstatements made by counsel or the State. Moreover, defendant made it abundantly clear that he was guilty, not just pleading guilty.

We conclude defendant's change of heart, which we note is unaccompanied by a claim of innocence, is not a basis to set aside his conviction and sentence. See State v. Slater, 198 N.J. 145, 157-58 (2009) (setting forth a four-pronged test to be met prior to vacating a guilty plea, which includes a defendant's "colorable claim of innocence").

With respect to the claimed due process violation resulting from the failure of plea counsel and PCR counsel to file appeals, defendant fails to set forth those facts supporting his request for reversal of his conviction had an appeal been filed. Further, this appeal considers his claims of error in the PCR presentation. Absent proofs to satisfy the Strickland/Fritz test, no basis to afford relief exists.

Finally, the suggestion that defendant's sentence is "manifestly excessive" is without merit. The term imposed on each charge fell within the defined range for the offense, the court made ample findings supporting the aggravating and mitigating factors for imposing certain consecutive sentences. Judge Bielamowicz clearly explained the mandatory application of NERA and the Graves Act, N.J.S.A. 2C:43-6, and why she fixed the term for each sentence, including setting the term of the most egregious first-degree offense towards the lower end of the range. We discern no abuse of discretion and there is nothing illegal about the sentence imposed. State v. Roth, 95 N.J. 334, 365-65 (1984).

Affirmed.

1 The record on appeal contains neither the judgments of conviction nor the pre-sentence report. Further the photocopy of the plea agreement is illegible.

2 Defendant admitted he never instructed trial counsel to file an appeal after entry of his plea or following sentencing.

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (holding a criminal defendant is entitled to a hearing to determine whether identification is tainted by suggestiveness of pretrial procedures).

4 See State v. Driver, 38 N.J. 255, 287 (1962) (requiring authentication of audio tape evidence as a prerequisite to admissibility).