STATE OF NEW JERSEY v. MICHAEL SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5767-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL SMITH a/k/a

LAWRENCE HAGLER,

Defendant-Appellant.

________________________________

November 8, 2012

Submitted: October 17, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-05-0509.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Pastacaldi, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Michael Smith appeals from the denial of his first petition for post-conviction relief (PCR), without an evidentiary hearing, in which he alleged ineffective assistance of trial counsel in connection with sentencing issues.1 We affirm.

On May 21, 1998, defendant was charged with first-degree murder (count one); second-degree possession of a weapon for unlawful purpose (count two); and third-degree unlawful possession of a weapon (count three). Defendant completed and signed a plea agreement, and on May 14, 2001, in accordance with the agreement, pled guilty to an amended charge of first-degree aggravated manslaughter, and counts two and three were dismissed. The court conducted a colloquy with defendant as to the knowing and voluntariness of his plea and the terms of the recommended sentence.

Defendant testified that on December 4, 1997 he fatally shot Archie Covington. According to defendant, earlier that day, he and Covington were fighting and Covington threatened to return with a gun. Instead, defendant returned to the scene with a gun and when Covington got out of a car, defendant got "scared and [he] just fired into the car and [he] hit [Covington]." The court was satisfied the plea was entered into knowingly and voluntarily, and defendant had provided an adequate factual basis for the conviction.

On September 21, 2001, defendant was sentenced to the negotiated term of twenty years in prison subject to the 85% parole ineligibility provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision. Mandatory fines and penalties were also imposed. The judge found the following aggravating factors: the risk that defendant will commit another crime in the future, N.J.S.A. 2C:44-1(a)(3); prior criminal history, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). He also considered the additional aggravating factors of the age of the victim and the impact on the victim's family. The judge found no mitigating factors. Prior to announcing the sentence, the judge explained, "[b]ut for this plea agreement, I can assure you, you would have received a greater sentence."

On June 26, 2003, defendant filed a notice of appeal challenging his sentence, and the matter was scheduled on an ESOA calendar. By order of October 9, 2003, we affirmed defendant's sentence. We concluded that "despite the improper consideration of defendant's age and harm to victim's family, the sentencing is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." On March 1, 2004, the Supreme Court denied certification. State v. Smith, 179 N.J. 369 (2004).

On October 24, 2004, defendant filed a pro se PCR petition alleging ineffective assistance of counsel and requested appointment of counsel. On June 26, 2006, counsel filed a brief on defendant's behalf, arguing ineffective assistance of trial counsel in failing to argue for mitigating circumstances at sentencing and for a sentence less than the maximum allowed by the plea agreement, that trial counsel ignored the failure to provide him with the supplemental NERA plea form, and trial counsel and the court did not adequately explain to him the additional five-year period of parole supervision under NERA.2 He also argued appellate counsel failed to raise these issues, not relevant to this appeal.

On December 20, 2010, Judge Robert C. Billmeier heard oral argument and denied defendant's PCR petition by order and written opinion on January 26, 2011, concluding that an evidentiary hearing was not warranted. The judge found defendant's trial counsel performed his role reasonably, and thus defendant failed to meet the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge was satisfied defendant "received the exact terms of his bargain." He also found that mitigating factors were indirectly addressed at the sentencing. For example, defense counsel told the sentencing judge that defendant "was afraid that [the victim] would have a gun, and if he went back there . . . he could get shot." Also, defendant apologized to the family and stated to the judge that he felt threatened. See N.J.S.A. 2C:44-1(b)(3) (the defendant acted under a strong provocation), (5) (the victim induced or facilitated the defendant's conduct), and (9) (the defendant's character and attitude indicate he is unlikely to commit another offense). Additionally, the pre-sentencing report noted that defendant had a substance abuse problem. See N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense).

The judge also found that "[defendant] was well aware that as a result of his plea, he would be subject to a five-year period of parole supervision subsequent to his incarceration." Thus, it was "reasonable for trial counsel not to object to the absence of the supplemental NERA form." The judge explained that even though a defendant must be made aware of the five-year period of parole supervision pursuant to State v. Johnson, 182 N.J. 232, 241 (2005), the Supreme Court did not specify the notification had to be given via the supplemental NERA form. The judge further determined that defendant, who provided no certification, "failed to establish that he would have changed his guilty plea had he either received the supplemental NERA form or had the [sentencing judge] specifically addressed that the five-year supervised parole term could result in additional prison time." Judge Billmeier additionally noted that defendant received an extremely favorable sentence as a result of his plea bargain and would have received a greater sentence if the case had gone to trial.

This appeal ensued. On appeal, defendant argues:

POINT I

THE PCR COURT ERRED WHEN IT FAILED TO FIND TRIAL COUNSEL WAS INEFFECTIVE WHEN COUNSEL FAILED TO COMPLETE THE SUPPLEMENTAL NERA FORM AND FAILED TO PROPERLY ADVISE DEFENDANT OF THE FIVE YEAR MANDATORY PAROLE SUPERVISION UNDER NERA.

POINT II

THE COURT ERRED IN FAILING TO FIND TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE FOR A SENTENCE LESSER THAN WHAT WAS AGREED TO IN THE PLEA AGREEMENT AND FAILING TO ARGUE MITIGATING FACTORS AT SENTENCING.

A. THE COURT ERRED IN FAILING TO CONSIDER THE PRECEDENT SET IN STATE V. HESS.

B. THE COURT ERRED IN FINDING THAT DEFENSE COUNSEL WAS EFFECTIVE AT SENTENCING.

POINT III

DEFENDANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF.

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm substantially for the reasons stated by Judge Billmeier in his written opinion. We add the following comments.

The test for ineffective assistance of counsel was formulated in Strickland, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) first that counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and, (2) second, that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In making that determination, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. State v. Parker, __ N.J. __, __ (2012) (slip op. at 11). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Parker, supra, slip op. at 12.

There is ample basis in the record to support the PCR judge's conclusion that defendant failed to satisfy either of these prongs, and that an evidentiary hearing was not warranted. In Johnson, supra, 182 N.J. at 241, the Supreme Court held that "being subject to NERA's mandatory period of parole supervision constitute[s] a direct, penal consequence of [the] defendant's plea[,]" of which he should have been advised before his guilty plea was accepted. The Court further held "that [a] defendant must demonstrate how the omission of information about NERA materially affected his decision to plead guilty. To demonstrate a manifest injustice, [a] defendant must show that the lack of information prejudiced him in making his decision to plead." Id. at 244. Because the defendant in Johnson was not informed about the consequences of being subject to NERA's fixed period of parole supervision, the Court remanded to allow the defendant a materiality hearing. Id. at 241, 244.

In contrast with Johnson, as found by Judge Billmeier, our record clearly demonstrates that defendant was advised of and understood the mandatory five-year period of parole supervision under NERA, as it was discussed by the court during both the plea colloquy and sentencing. In fact, defendant acknowledges that the judge mentioned during the plea colloquy that his sentence would be subject to the five-year parole supervision term. Defendant's argument, however, is that the "brief colloquy on the record is insufficient to fully explain all the consequences and implications of that provision to defendant" and trial counsel's failure to object to the omission of a supplemental NERA form3 and admission that he "did not think one was required" is prima facie evidence of his ineffectiveness. We reject both arguments.

If a defendant makes out a prima facie case of ineffective assistance at trial by a preponderance of the evidence, viewing all facts in the light most favorable to the defendant, the court has the discretion to hold an evidentiary hearing and make a determination on the merits of defendant's claim. R. 3:22-10; State v. Preciose, 129 N.J. 451, 459-64 (1992). A court will not grant an evidentiary hearing "if the defendant's allegations are too vague, conclusory or speculative[.]" R. 3:22-10(e)(2).

Defendant completed and was questioned by the court about the standard plea form. When it became apparent during the plea colloquy that he had not completed a NERA supplemental plea form, the judge decided to verbally convey the pertinent information contained in that form. Although it would have been preferable for defendant to have completed the form, as the PCR judge noted, Johnson did not expressly require the notification to be given only through the supplemental NERA form. As the record reflected, defendant was duly apprised of the direct, penal consequences of the negotiated plea he entered and received, including the NERA parole supervision term, and it is of no moment that trial counsel did not object to the absence of the supplemental NERA form.

The judge asked defendant, "[d]o you also understand in connection with the sentencing, you would be subject to an additional five year term of parole supervision?" Defendant responded "Yes." Next, the judge asked defendant if he had "[a]ny questions about that[,]" to which defendant responded, "No." At sentencing, the judge again informed defendant that he was sentenced to twenty years in prison and was required to serve seventeen years without parole eligibility; after which, he was "imposing a requirement that there will be a continued parole supervision period of five years." When he asked defendant if there were "any questions about the sentence that has been imposed?" defendant again responded in the negative.

Defendant next argues ineffective assistance of trial counsel in failing to argue mitigating evidence to support a lesser sentence than that contemplated by the negotiated plea agreement, relying on State v. Hess, 207 N.J. 123 (2011), decided during the pendency of the appeal. The terms of the negotiated plea agreement in Hess, entered into in 2001, required the defendant to plead guilty to aggravated manslaughter, acknowledge she would receive a thirty-year custodial sentence with a twenty-five-and-one-half-year parole disqualifier, concede "that the aggravating factors . . . so preponderate over the mitigating factors . . . as to make the maximum term of 30 years appropriate[,] agree that neither she nor her attorney would affirmatively seek a lesser term of imprisonment from the Court[,] and agree not to appeal her judgment of conviction." Id. at 136-37 (internal quotation marks omitted). "In return, the State agreed that it would dismiss the murder charge, thus reducing by 4 1/2 years the mandatory minimum for murder, i.e. thirty years without parole." Id. at 137 (internal quotation marks omitted).

At sentencing, all without objection from defense counsel, a "victim-impact" statement was presented; the victim's sister addressed the court; the prosecutor played a professionally produced seventeen-minute video, with music, depicting the victim's life; and the prosecutor extensively emphasized the aggravating sentencing factors and suggested that defendant's character "virtually wipes out any of the mitigating factors." Id. at 137-38 (internal quotation marks omitted).

In response, Hess' defense counsel stated that his hands were "somewhat tied" by the plea agreement. Id. at 138. He never mentioned any of the evidence he developed from his client or from other witnesses that the defendant was a physically and psychologically battered woman, and mentioned nothing redeeming about the defendant's character or her otherwise blameless life. Ibid. Defense counsel did not argue against an aggravating factor or in favor of a mitigating factor. Ibid. He conceded he could not, "pursuant to the plea agreement, ask the court to sentence [defendant] to less than thirty years. . . . [but,] [n]evertheless, he asked the court to make an independent evaluation of the defendant and of the aggravating and mitigating factors, and to consider whether a thirty-year sentence was appropriate for a thirty-four-year-old woman." Ibid. (internal quotation marks omitted).

The trial court found support for two aggravating and two mitigating factors, found the aggravating factors outweighed the mitigating ones, and referenced defense counsel's agreement not to argue for a sentence of less than thirty years. Id. at 138-39. Though noting it was authorized to sentence to less than the plea agreement, it also noted this was the type of case where the defendant could have been sentenced to more had she been convicted of the original charge at trial, but in the interests of justice, imposed the recommended sentence. Id. at 139.

The defendant did not file a direct appeal, rather, she filed a PCR petition in 2005 alleging ineffective assistance of counsel at sentencing. Ibid. The Supreme Court reversed the trial court's and our denial of defendant's PCR petition, in part based on the plea agreement restrictions and failure to argue aggravating and mitigating circumstances, and remanded for vacation of the plea or a new sentencing hearing without the offending provisions. Id. at 160. In doing so, the Court affirmed the principles we enunciated in State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002), that "there can be no doubt that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement."

As the Supreme Court elaborated,

Our jurisprudence does not permit restrictions on the right of counsel to argue for a lesser sentence, or to argue against an aggravating factor or for a mitigating factor, or how the factors should be balanced, as this would deprive defendants of the needed advocacy of their attorneys and deny our courts the needed insight to administer justice.

[Hess, supra, 207 N.J. at 153-154.]

The Court held that defendant was denied her constitutional right to the effective assistance of counsel because her attorney failed to present and argue mitigating evidence at sentencing, and that plea agreement provisions restricting the right of counsel to argue for a lesser sentence are void. Ibid. The Court explained:

[T]he failure to present and argue the mitigating evidence can only be explained as attorney dereliction. In the end, the restrictive plea agreement helped to fuel the breakdown of the adversarial process in this case. The net effect of counsel's abdication of his role as an advocate was that the sentencing court was deprived of information and arguments that might well have led it to impose a lesser term. The sentencing court heard the prosecution's impassioned account, and from the defense a deafening silence.

We find that the failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel -- even within the confines of the plea agreement. Defendant's attorney was not functioning as the "counsel" guaranteed by either our Federal or State Constitution. Based on both the evidence and argument withheld from the sentencing court, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[Id. at 154 (internal citations omitted).]

In considering defendant's argument on this issue, we have to analyze the record as a whole. We are convinced Hess is factually inapposite and is not a basis for granting defendant post-conviction relief in this case. The overall record reflects that defendant's trial counsel was a zealous advocate for his client. He negotiated an extremely favorable plea bargain, as noted by the sentencing judge, which downgraded the charge to which defendant pled from first-degree murder to first-degree aggravated murder, which, in and of itself took into consideration the mitigating factors of defendant's altercation with Covington. Additionally, as part of the negotiated plea, the two weapons charges were dismissed.

The plea agreement contained none of the plea restrictions contained in the Hess agreement. Moreover, as the court informed defendant during the plea colloquy, his potential exposure even on the amended charge was a maximum of thirty years subject to NERA. See N.J.S.A. 2C:11-4(c). Instead, under the negotiated plea agreement, the prosecutor agreed to recommend a sentence of "20 years incarceration with 85% incarceration (17 years)."

Although at sentencing defense counsel did not specifically delineate specific mitigating factors as such, he did state, "I'm not going to rehash the facts . . . and I'm not trying to justify his acts . . . and I believe at the time of the plea, he was afraid that Mr. Covington would have a gun, and if he went back there that probably he could get shot." He asked the court to abide by the plea bargain. Additionally, defendant had the opportunity to make a statement, which he did; he apologized to the victim's family, stating, "I thought that he threatened me, that he was going to get a weapon, so, I felt as though my life was in threat, so I went and got one and I shot him first." Such a statement addresses mitigating factors. N.J.S.A. 2C:44-1(b)(3), (4), (5), (9). Thus, the court had before it all valid mitigating factors, assessed them, and found them to carry no weight. See State v. Blackmon, 202 N.J. 283, 291 (2010); State v. Dalziel, 182 N.J. 494, 504 (2005). In further contrast with Hess, defendant presented no relevant mitigating factors that he claims were not argued by defense counsel and which would have made a difference in the outcome of his sentence.

1 Defendant also alleged ineffective assistance of appellate counsel in proceeding on an ESOA calendar, R. 2:9-11. On appeal, defendant has abandoned his claim with respect to appellate counsel.

2 The briefs are undated but Judge Billmeier's opinion references this date. No explanation has been provided for the significant delay in the scheduling of this matter before the PCR judge.

3 The NERA supplemental plea form was issued on October 8, 1998. See Administrative Directive #4-98.