STATE OF NEW JERSEY v. AMOS MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2110-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMOS MITCHELL,

Defendant-Appellant.

_______________________________________

March 22, 2012

 

Submitted December 20, 2011 - Decided

 

Before Judges Baxter and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0363.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Frank Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Amos Mitchell appeals from the January 6, 2010 order that denied his petition for post-conviction relief (PCR). He contends that his trial attorney was ineffective for failing to investigate and research adequately the charges against him, failing to aggressively pursue a pre-indictment plea, and permitting him to plead guilty to first-degree robbery knowing there was no factual basis to establish that offense. Having considered defendant's arguments in light of the record and applicable law, we agree with the trial court that defendant has failed to demonstrate he would have rejected the State's plea offer but for counsel's conduct. We therefore affirm.

I.

The transcript of defendant's plea colloquy establishes that on January 5, 2006, defendant walked into a Hallmark store and, with the purpose of putting the cashier in fear of immediate bodily injury, stole money from the cash register. Although defendant denied having a knife or weapon in his possession, defendant admitted stating to the cashier, "This is a robbery, open the register and give me the money." When asked by the court whether his use of the word "robbery" would have reasonably led the cashier "to believe she was being threatened with a deadly weapon," defendant answered "yes." He also admitted that he said, "I don't want anyone to get hurt, this is a hold-up." Two days later, on January 7, 2006, while armed with a knife, defendant walked into a Bed, Bath and Beyond store and, with the intent of putting the two cashiers in fear of immediate bodily injury, stole money from the cash register.

An Ocean County grand jury charged defendant with first-degree robbery, N.J.S.A. 2C:15-1, with respect to the Hallmark store (count one); first-degree robbery, N.J.S.A. 2C:15-1, with respect to the Bed, Bath and Beyond store (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a (count five).

On June 1, 2006, defendant pled guilty to counts one, two and five. In exchange, the State recommended that defendant be sentenced on each robbery count to fifteen years imprisonment, subject to a term of eighty-five percent parole ineligibility and five years of parole supervision upon release, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and to a one-and-one-half-year term of imprisonment, subject to an eighty-five percent parole disqualifier, on the fourth-degree weapons count. The State also recommended that the sentences run concurrently, agreed to dismiss the two other weapons charges, and agreed to waive its right to seek an extended prison term for which defendant was eligible as a persistent offender, N.J.S.A. 2C:44-3. Finally, the State agreed that defendant could argue at sentencing for maximum prison terms less than the fifteen years recommended by the State on the first-degree robbery counts.

On July 21, 2006, consistent with defendant's guilty plea, the court sentenced him on counts one and two to concurrent fifteen-year terms of imprisonment subject to eighty-five percent parole ineligibility and five years of parole supervision upon release; and on count five to a concurrent prison term of eighteen months subject to an eighty-five percent period of parole ineligibility. The court also imposed appropriate fines and penalties.

Defendant appealed his sentence, challenging the factual basis for his plea on count one, and his appeal was heard on an excessive sentence calendar, R. 2:9-11. We reversed and vacated his conviction on count one, concluding there was an inadequate factual basis for his plea to first-degree robbery of the Hallmark store. State v. Mitchell, No. A-1657-06 (App. Div. December 20, 2007). On remand, defendant pled guilty to second-degree robbery on count one and the court sentenced him to a prison term of seven years subject to the provisions of NERA, the sentence to run concurrently to defendant's sentences on the second and fifth counts.

On February 3, 2009, defendant filed his PCR petition and on February 26, 2009, the court appointed counsel to represent him. Thereafter, defendant filed a supplemental brief in support of his petition. On January 6, 2010, the trial court1 denied the petition. This appeal followed.

Defendant presents the following points for our consideration:

POINT ONE

 

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

 

A. Defendant Established That Trial Counsel's Conduct was Deficient.

 

B. Defendant Was Prejudiced By Trial Counsel's Deficient Performance.

 

POINT TWO

 

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING EVEN THOUGH DEFENDANT DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT THREE

 

DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND IN ANY PRO-SE SUPPLEMENTAL BRIEF.

 

II.

To prove ineffective assistance of counsel, defendant must show: first, "that counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; second, "that the deficient performance prejudiced the defense," that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test for such claims arising under the New Jersey Constitution). To establish ineffective assistance of counsel as the basis for setting aside a guilty plea, 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. Nunez-Valdez, 200 N.J. 129, 139 (2009) (internal quotation marks and citations omitted).

A court is not required to grant a hearing on every PCR petition. Our court rules "recognize[] judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-10). Nonetheless, "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. To establish a prima facie claim, a defendant "must do more than make bald assertions that he [or she] was denied the effective assistance of counsel[,]" State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); he or she "must demonstrate the reasonable likelihood of succeeding under the [Strickland/Fritz] test," Preciose, 129 N.J. at 463.

Defendant contends that counsel: (1) failed to communicate adequately with defendant; (2) failed to exhibit concern for defendant's suggestions, including defendant's denial that he used his concealed knife during the second robbery; (3) failed to pursue the pre-indictment sentence he promised to pursue for defendant, namely, six years with an eighty-five percent period of parole ineligibility; (4) failed to argue for a shorter sentence under the open-ended plea agreement; (5) failed to discuss the ramifications of pleading guilty to the two counts of first-degree robbery involving a deadly weapon, knowing that defendant never used the purported knife; (6) led defendant to believe that rejection of the State's plea offer would result in a worse outcome; and (7) failed to thoroughly discuss the charges with defendant.

These seven arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. Defendant could not have misapprehended the benefit of his pleading guilty. During the plea proceeding the trial court explained:

Q. [By the court] Now, the State has agreed to recommend the cap of 15 years, and they have also agreed in exchange for the plea to recommend that these two robberies, the sentences be concurrent with each other.

 

A. [By defendant] Yes, sir.

 

Q. You understand that? And you understand that the allegations in the indictment are they were separate robberies on separate dates, in separate places. And but for the plea agreement, the inference under the statute is that they would be consecutive sentences.

 

A. Yes, I understand.

 

Q. Also, because of your prior criminal history, you are [subject to a] discretionary extended term.

 

A. Yes, sir, I understand that.

 

Q. Which means absent . . . this plea agreement, if the State was not waiving their right to seek an extended term, you would be exposed to potentially a life sentence.

 

A. Yes, Your Honor.

 

Q. Do you understand that?

 

A. Yes, sir.

 

Q. And 85 percent of life is 63 and a half years. Do you understand that?

 

A. Yes, sir.

 

Q. So, you're pleading guilty here recognizing that while the sentence is severe, the recommendation of 15 years, there's substantial considerations from your perspective that the State is giving up by offering this plea bargain; is that correct?

 

A. Yes, sir.

 

Q. And you think it's a fair plea bargain?

 

A. Yes, sir.

 

Q. Can you read and write English?

 

A. Yes.

 

It is also clear that the trial court was reluctant to accept the negotiated plea as evidenced by the remarks the court made early in the sentencing proceeding:

By my calculation, [the defendant has] . . . a total of . . . 52 convictions, that's not contacts, that's convictions, because he had a couple of dismissals and whatever[,] of which 14 out of the 52 are Superior Court convictions and sentences.

 

. . . .

 

Why should I even consider going along with the plea bargain where the prosecutor waives the right to seek a discretionary extended term as a persistent offender, persistent violator? Why should I accept this plea bargain . . . ?

 

Considering the trial court's expressed reluctance to accept the State's sentence recommendation, defendant's criminal record, and defendant's eligibility for an extended term sentence, we agree with the trial court that defendant did not establish a prima facie case of ineffective assistance of counsel.

Defendant has not explained what additional communication from counsel would have dissuaded defendant from pleading guilty, or how some other argument from counsel would have resulted in either a different plea offer from the State or a different sentence. Moreover, the trial court's remarks at sentencing demonstrate the likelihood the court would have imposed a longer sentence but for the State's recommendation; a likelihood that supports defense counsel's advice that defendant risked a worse outcome by rejecting the plea. Defendant's conclusory allegations are inadequate to establish that his counsel was ineffective. Cummings, supra, 321 N.J. Super. at 170.

In addition to his first seven arguments, defendant contends that his trial counsel was ineffective for allowing him to plead guilty to count two knowing there was an inadequate factual basis for the plea. Defendant does not deny that he committed a robbery, as defined in N.J.S.A. 2C:15-1, when he stole money from the cash register at the Bed, Bath and Beyond store. Instead, defendant argues that the robbery should have been graded as a second-degree offense because he never displayed or intended to use the knife that he possessed. The State counters that defendant's possession of the knife and his intent to put the cashiers in fear of bodily injury are sufficient to establish the elements of first-degree robbery. The State also argues that defendant's PCR petition should be dismissed because it was not timely filed.

During his guilty plea colloquy, defendant provided the following factual basis for his plea:

Q. [By defense counsel] With regard to the second count, on January 7[,] 2006, you were in Bricktown? At that time you walked into the Bed, Bath and Beyond?

 

A. [By defendant] Yes.

 

Q. And at that time you went in there armed with a knife and, with the intent to put [the cashiers] in fear of immediate bodily injury, you stole money out of the cash register?

 

A. Yes.

 

Q. You know that's the crime of first-degree robbery?

 

A. Yes.

 

Q. How do you plead to that charge?

 

A. Guilty.

The definition and grading of robbery are contained in N.J.S.A. 2C:15-1:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:

 

(1) Inflicts bodily injury or uses force upon another; or

 

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

 

(3) Commits or threatens immediately to commit any crime of the first or second degree.

 

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

 

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.

 

The indictment charged defendant with first-degree robbery of the Bed, Bath and Beyond store because he was "armed with" a knife when he committed that robbery.

The term "'[a]rmed with' is not defined in the Code [of Criminal Justice], but case law establishes that it means possession of, and immediate access to, the deadly weapon." State v. Rolon, 199 N.J. 575, 581 (2009). Defendant possessed and had immediate access to the knife; the central question is whether he was armed with a "deadly weapon." The term "deadly weapon" is defined in N.J.S.A. 2C:11-1c as:

any firearm or other weapon, . . . which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]

 

"[I]f the weapon is not a firearm, but an object with legitimate uses, for example a paperweight or a pair of scissors, its use or intended use will determine whether it meets the deadly weapon standard." Rolon, supra, 199 N.J. at 583. Proof of the "deadly weapon" element is problematic when the perpetrator has a knife in his pocket but does not display or refer to it during the robbery. In such cases, a defendant's intention must be proved by circumstantial evidence.

The guilty plea colloquy provides scant information about defendant's robbery of the Bed, Bath and Beyond store. The record does not include a description of the knife and does not disclose how authorities learned defendant had possessed a knife during the robbery. That information could have been provided by the victims or by defendant after his arrest, but no such information was presented to the trial court. On the other hand, defendant's assertions in his appeal brief that the weapon remained concealed, that he did not refer to it, and that he did not intend to use it during the robbery are unsupported by competent evidence in the record. In the affidavit defendant filed in support of his PCR petition, he did not mention that he kept the knife concealed during the robbery, had no intent to use it, and did not threaten to use it. Rather, he merely alleged that his attorney never "discussed the ramifications of the charges of a deadly weapon, which was never used in my case." (Emphasis added). Defendant's assertion of those facts in his PCR and appeal briefs is not competent evidence of those facts.

Because defendant's conviction on count one was ultimately renegotiated to a second-degree conviction, we confine our analysis of defendant's challenge to the adequacy of the factual basis of his guilty plea accordingly, and address only count two. The scant factual basis for defendant's guilty plea to first-degree robbery in count two is ambiguous as to the "deadly weapon" element of the offense. One could interpret the plea colloquy to mean defendant used the knife to place the cashiers in fear of immediate bodily injury; or, alternatively, that he possessed a knife and also intended to put his victims in fear of injury, but did not use the knife to carry out his intent. Although an evidentiary hearing would ordinarily be required to resolve that ambiguity and to determine whether counsel was ineffective, here such a hearing is unnecessary because defendant has not satisfied the second prong of the Strickland/Fritz test.

To satisfy the second prong, defendant must demonstrate a reasonable probability that but for counsel's ineffective assistance, defendant would not have pled guilty and would have insisted on going to trial. Notably, defendant does not seek to withdraw his guilty plea to all three charges. Instead, he seeks a remand solely on count two, so that he can either be resentenced on second-degree robbery or be tried on that offense. However, a defendant has no right to selectively enforce a plea agreement. SeeState v. Reardon, 337 N.J. Super.324, 326 (App. Div. 2001). In view of the considerable concessions made by the State during the plea bargain, the result defendant now seeks would be inequitable and inappropriate.

"[A] defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence." State v. Haliski, 140 N.J.1, 21 (1995). "Many courts have recognized that when a defendant challenges the imposition of one or more sentences and demands that the sentence be vacated, a reviewing court has the power to vacate other sentences imposed by the same judgment that are interdependent with the challenged sentences." State v. Rodriguez, 97 N.J.263, 274-275 (1984). "[T]he essential rationale of Rodriguezextends to a case . . . in which a defendant successfully challenges his sentence on appeal and the case is remanded for resentencing." State v. Espino, 264 N.J. Super.62, 68 (App. Div. 1993). "[I]f a defendant prevails on appeal, an increased term for a particular offense may be imposed under some circumstances without violating due process or double jeopardy guarantees." Id.at 67.

Here, both defendant and the State had the reasonable expectation that defendant would be sentenced to an aggregate term of fifteen years with twelve years and nine months of parole ineligibility. The statements the trial court made at sentencing evidence the substantial likelihood that, absent a plea, defendant would have been sentenced to a prison term exceeding fifteen years. Consequently, defendant has neither demonstrated a reasonable probability nor made a prima facie showing that he would have rejected the State's plea offer but for his counsel's inadequate advice. We therefore reject his ineffective-assistance-of-counsel argument.

In view of our determination that defendant has failed to satisfy the second prong of the Strickland/Fritz test for ineffective assistance of counsel, we need not address the State's argument that defendant's PCR petition is barred because it was not timely filed.

Affirmed.

1 The judge who denied defendant's PCR petition was not the same judge who accepted defendant's guilty plea and imposed sentence.