STATE OF NEW JERSEY v. MICHAEL LASANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1418-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LASANE,

Defendant-Appellant.

___________________________________

December 13, 2013

Submitted December 2, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0365.

Joseph E. Krakora, Public Defender, attorney for appellant in A-1872-11 (Alison Perrone, Designated Counsel, on the brief).

Michael Lasane, appellant pro se in A-1418-12.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief in A-1872-11.

PER CURIAM

In these back-to-back appeals, which we consolidate for purposes of this opinion, defendant Michael Lasane appeals (A-1872-11) from the August 8, 2011 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. Lasane separately appeals (A-1418-12) from the September 18, 2012 order dismissing a subsequent application for post-conviction relief. We affirm both orders.

I.

The background of the present matter is found in two opinions: State v. Lasane (Lasane I), 371 N.J. Super. 151 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005), and State v. Lasane (Lasane II), No. A-5242-06 (App. Div. Jan. 8, 2010), certif. denied, 201 N.J. 442 (2010). Familiarity with those opinions is assumed.1, 2

In LaSane I, we granted post-conviction relief to permit Lasane to withdraw his previous guilty plea to an accusation charging him with felony murder, N.J.S.A. 2C:11-3(a)(3). Id. at 153. In so doing, we cautioned that "[i]t may be that the negotiated disposition was beneficial to defendant and that he may decide not to withdraw his plea." Id. at 166.

Nevertheless, on February 17, 2006, Lasane withdrew his guilty plea, thereby triggering events that resulted in a jury convicting him in 2007 of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1(a) and (b); and first-degree carjacking, N.J.S.A. 2C:15-2(a).

On appeal, we affirmed the conviction, but because of a sentencing merger problem, we remanded for the entry of an amended judgment of conviction that reflected an aggregate sentence of life imprisonment plus thirty years, with forty-five years to be served before parole eligibility.3 Lasane II, supra, slip op. at 7.

Lasane filed a pro se petition for post-conviction relief on July 26, 2010. After PCR counsel was assigned, and a formal brief submitted, the matter was presented for oral argument in the Law Division on August 3, 2011. Although numerous ineffective assistance of counsel claims were presented, the primary issue addressed at oral argument related to Lasane's assertion that the attorney who counseled him to withdraw the guilty plea misadvised him that, upon the plea's withdrawal, the entire matter would be returned to the Family Part for further proceedings. Lasane contended that if he knew the matter would never return to the Family Part, and that it was inevitable he would be exposed to trial in the Law Division, he would not have withdrawn the plea. As his PCR attorney argued, "[Lasane] would not have elected to take it to trial," and he "would have kept the plea."

Against this backdrop, the Law Division was presented with a certification not testimony from Lasane's former counsel4 who unequivocally averred, "I never told La[s]ane that if he withdrew his guilty plea the case would be returned to juvenile court for a waiver hearing. Preventing waiver would have been virtually impossible." Furthermore, former counsel stated, "It was absolutely clear that this matter would be handled as an adult criminal matter if La[s]ane withdrew his plea. La[s]ane was aware of this situation and knew the matter would not be returned to juvenile court."

At the conclusion of oral argument, the PCR judge rendered an oral decision, which denied post-conviction relief. The judge addressed Lasane's discrete claims of ineffective assistance of counsel, finding that nothing in the record demonstrated that counsel was deficient. In particular, the judge discussed Lasane's failure to satisfy either the performance or prejudice prongs of the so-called Strickland/Fritz5 paradigm, either because the challenged actions of defense counsel were sound trial strategy or because different courses of action would not have changed the result.

Although he did not have the benefit of an evidentiary hearing, the PCR judge carefully reviewed the proceedings that surrounded Lasane's determination to withdraw his guilty plea. The judge found the following:

I don't find on the face of it when you look at the overall circumstances in this case, the totality of the circumstances, I don't find Mr. Lasane's certification that he was not advised and, if he had been advised, he would have acted differently at all credible. The history of the case rebuts clearly the allegation that Mr. Lasane is making. I don't really feel that it's necessary on this issue to have an evidentiary hearing even giving Mr. Lasane the benefit of all reasonable inferences from his position. I don't find that a hearing is necessary because the evidence set forth in the transcripts and the procedural history of the case, I think, satisfies me at this stage of the game that he would not make out a prima facie case on that ground.

A memorializing order was entered on August 8, 2011. The appeal in A-1872-11 followed.

Independently, eight months later, Lasane filed a pro se application for post-conviction relief alleging, among other things, deficiencies in PCR counsel's performance. Lasane contended that PCR counsel (1) "did not mention the supplemental pro se brief" or its issues to the PCR judge; (2) "failed to communicate with [Lasane] prior to filing" counsel's PCR brief; and (3) "did not sufficiently investigate and failed to raise issues [Lasane] insisted that he include" in counsel's PCR brief. Lasane also sought the assignment of an attorney pursuant to Rule 3:22-6(b).

On September 18, 2012, a different Law Division judge issued a letter opinion dismissing Lasane's second application. The judge found an absence of good cause to assign counsel, and further determined that because Lasane never illuminated the arguments he wished PCR counsel to make, a prima facie case of ineffective assistance of counsel was lacking pursuant to Rule 3:22-4(b)(2)(C). Furthermore, the judge noted Lasane's awareness of his right to file pro se supplemental briefs under Rule 3:22-6(d), but Lasane never did so. The appeal in A-1418-12 followed.

II.

In the first-filed appeal, A-1872-11, Lasane raises the following issues for our review:

POINT I: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-5.

POINT II: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING BASED ON THE REMAINING ARGUMENTS BY DEFENDANT AND DEFENSE COUNSEL.

POINT IV: THIS COURT SHOULD ORDER A LIMITED REMAND FOR DEFENDANT TO RAISE THOSE ISSUES THE PCR COURT IMPROPERLY PRECLUDED HIM FROM RAISING AS PART OF HIS FIRST PETITION FOR POST-CONVICTION RELIEF.

In his pro se supplemental brief, Lasane offers the following additional point:

POINT I: PCR COUNSEL FAILED TO RAISE ALL OF THE ISSUES THE APPELLANT REQUESTED HE RAISE CONTRARY TO RULE 3:22-6(d). REMAND IS WARRANTED.

In the second appeal, A-1418-12, Lasane presents the following issues for our consideration:

POINT I: PCR COUNSEL FAILED TO RAISE ALL OF THE ISSUES THE APPELLANT REQUESTED HE RAISE, CONTRARY TO R. 3:22-6(b).

POINT II: PCR COUNSEL WAS INEFFECTIVE PURSUANT TO THE FACTS IN POINT I.

POINT III: THE PCR COURT ABUSED ITS DISCRETION IN DISMISSING THE APPELLANT'S SUBSEQUENT PCR PETITION AND DENYING HIS REQUEST FOR ASSIGNMENT OF COUNSEL.

We have deliberated upon all of Lasane's arguments in light of the extensive record generated over the last almost-eighteen years, and we conclude that they are entirely unpersuasive. Except for the contested claim that he was supposedly misadvised into withdrawing his guilty plea, Lasane's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We briefly address that single allegation of ineffective assistance of counsel, which we similarly conclude is insufficient to warrant either an evidentiary hearing or post-conviction relief.

The standard for determining whether a defense, PCR, or appellate attorney's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, and adopted by our Supreme Court in Fritz.6 To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework.

Under Strickland's first prong, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish the first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed' by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted).

Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "The defendant must show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J. 183, 193 (2009) (citation omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

An applicant for post-conviction relief must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). One seeking such a remedy must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the applicant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are not enough. Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record an evidentiary hearing should be held." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Here, notwithstanding the discordance between Lasane's version of events at the time of the plea withdrawal and the account of his former attorney, the PCR judge rightly determined that the totality of the record convincingly negated Lasane's tardy grievance. Nothing in an objective understanding of our remand to permit Lasane to withdraw his guilty plea could have given rise to the possibility, much less the probability, that such an action would return the matter to the Family Part. Our opinion expressly stated that if Lasane elected to withdraw his guilty plea, "all charges may be resurrected and presented to a grand jury." Lasane I, supra, 371 N.J. Super. at 166. Such resurrection plainly excluded any chance of the matter leaving the Law Division.

Additionally, the factual dispute between Lasane and his former attorney is not material to the determination of the attorney's putative deficiency. Under the mandate of our remand, Lasane was obliged, in the first instance, to choose a course of action vis- -vis the guilty plea. The question of jurisdiction was entirely foreign to that choice because of the absolute certainty that, even if somehow the Family Part regained jurisdiction, Lasane's disposition would have been waived to the Law Division under N.J.S.A. 2A:4A-26(a).

Thus, upon the withdrawal of the guilty plea, it was inevitable that a jury trial would ensue (unless a new plea arrangement could be crafted). Obviously, even the alleged misadvice that the withdrawal would return the case to the Family Part would have been a short-lived respite. Plainly, any decision to disavow the beneficial negotiated disposition that flowed from the guilty plea was one that would only result in the invocation of the Law Division's machinery of justice. Under these circumstances, Lasane's former attorney did not fail Lasane, and thus Lasane did not suffer the ineffective assistance of counsel.7

Affirmed.

1 We particularly highlight that the crimes at issue were committed when Lasane was about to turn seventeen years old. Lasane I, supra, 371 N.J. Super. at 154.

2 In the interest of completeness, we note two other opinions related to Lasane's long journey through the criminal justice system: State v. Lasane, No. A-4812-96 (App. Div. June 15, 1998) (affirming the conviction and sentence imposed on Lasane's original guilty plea); State v. Lasane, No. A-5079-99 (App. Div. Oct. 22, 2001) (remanding Lasane's initial application for post-conviction relief for an evidentiary hearing).

3 Lasane's 1996 sentence after pleading guilty to felony murder was life imprisonment with thirty years to be served before parole eligibility.

4 This former counsel only briefly represented Lasane after our grant of post-conviction relief and remand. Different attorneys provided trial and appellate advocacy over the ensuing years.

5 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

6 The Strickland/Fritz model remains in full force and effect. See Burt v. Titlow, ___ U.S. ___, ___ S. Ct. ____, ___ L. Ed.2d ___ (2013) slip op. at 1, 5-6, 9; State v. Miller, ___ N.J. ___ (2013) slip op. at 36-38.

7 To the extent that Lasane contends appellate counsel misadvised him with respect to the posture of the case if the guilty plea were to be withdrawn, such contention suffers from the same shortcomings that we have already identified with respect to Lasane's other counsel.