STATE OF NEW JERSEY v. JAHIDE LESAINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3510-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAHIDE LESAINE,

Defendant-Appellant.

________________________________________________________________

April 22, 2013

Submitted February 27, 2013 - Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0450.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jahide Lesaine appeals from the October 1, 2010 order denying his petition for post-conviction relief (PCR) after oral argument but without a hearing. Determining that a co-defendant's certification provided a prima facie argument for ineffective assistance of counsel, we reverse and remand for a plenary hearing.

On February 14, 2006, the Essex County Grand Jury returned Indictment No. 06-02-0450, containing forty counts, charging Lesaine and four co-defendants including Jermaine Walker with various crimes. The first thirty counts charged all the defendants with the following criminal acts: count one, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; counts two, four, six, eight, ten, twelve, fourteen, sixteen, eighteen, and twenty, first-degree robbery, N.J.S.A. 2C:15-1; counts twenty-four, twenty-five, and twenty-six, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); counts three, five, seven, nine, eleven, thirteen, fifteen, seventeen, nineteen, and twenty-one, second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); counts twenty-two and twenty-three, third-degree receiving stolen property, N.J.S.A. 2C:20-7; count twenty-seven, fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); count twenty-eight, fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f); and counts twenty-nine and thirty, fourth degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a). Defendant was charged alone in count thirty-four, fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). He was not charged in the remaining nine counts.

Ten months later, defendant entered into a plea agreement with the State. In exchange for defendant's guilty plea to one count of conspiracy (count one), ten counts of robbery (counts two, four, six, eight, ten, twelve, fourteen, sixteen, eighteen, and twenty), one count of unlawful possession of a handgun for an unlawful purpose (count twenty-one), one count of receiving stolen property (count twenty-two), two counts of unlawful possession of a handgun (counts twenty-five and twenty-six), and one count of resisting arrest (count thirty-four), the State agreed to dismiss the remaining charges and recommend an aggregate sentence of twelve years in prison with 85% parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant related a factual basis for his guilty plea primarily by giving one-word answers to leading questions posed by his attorney. Defendant told the judge that no one was forcing him to sign the plea forms, plead guilty or waive his right to a trial. Defendant was sentenced in accordance with the plea agreement. He did not appeal.

Defendant filed a timely PCR petition. R. 3:22-12(a)(1). In his petition, defendant certifies that his counsel did not review or discuss the discovery with him. He claims that he told his trial attorney that his co-defendant, Walker, would exculpate him, but his lawyer told defendant that the prosecutor would not accept such a statement. Defendant stated that his lawyer pressured him into pleading guilty. A March 19, 2010 notarized affidavit signed by Walker was attached to defendant's PCR petition, stating that defendant "HAD ABSOLUTELY NO PARTICIPATION OR ANY INVOLVEMENT IN ANY ROBBERY OR ROBBERIES THAT I OR ANY OF MY ASSOCIATES COMMITTED." Defendant also indicated that he signed papers at his sentencing indicating that he wished to appeal the conviction, but no appeal was filed on his behalf.

The PCR judge, who had also accepted defendant's guilty plea and sentenced defendant, denied the PCR. She noted that Walker's affidavit was prepared three years after defendant was sentenced when Walker was serving a sentence imposed for his involvement in the crimes. The judge stated that this raised a question in her mind as to the reliability of the affidavit. She noted that at the time of the plea defendant stated he was not forced to plead guilty. She also reasoned that defense counsel had negotiated a favorable plea for defendant because he could have been sentenced to 200 years in prison had he been found guilty of all charges after trial.

On appeal defendant raises the following issues:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO INVESTIGATE, INTERVIEW AND PRESENT THE TESTIMONY OF A CRUCIAL WITNESS.

B. TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER.

C. TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE DURING PLEA NEGOTIATIONS.

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE WALKER'S AFFIDAVIT IS EXCULPATORY EVIDENCE AND CREATES REASONABLE DOUBT OF DEFENDANT'S GUILT.

POINT IV: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDEN[]T[I]ARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

The evidentiary legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).

A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing Fritz, supra, 105 N.J. at 58).

Additionally, a defendant must demonstrate, in the context of a guilty plea, that he would not have pled guilty but for his counsel's defective representation. State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

The State draws our attention to defendant's presentence report, which incorporated police reports, as evidence of the strength of the State's case against defendant. See State v. Mitchell, 126 N.J. 565, 581-82 (1992) ("In determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from the surrounding circumstances. In evaluating the 'surrounding circumstances,' the court may consider a wide range of information sources, including all testimony at the plea and sentencing hearings, the presentence report, as well as other sources unique to a particular case[.]" (internal citations omitted)). The presentence report indicates that Newark Police Officers chased a red Jeep Cherokee that was involved in several armed robberies in the streets of Newark. The Jeep crashed into a police car and the occupants fled on foot. Defendant, Walker and three others were chased down and arrested. Three handguns were found in the Jeep, which had been stolen earlier that day. We recognize that the evidence against defendant was strong.

Rule 3:22-10 highlights that a judge's decision to conduct an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992) (citation omitted). If a defendant makes out a prima facie case of ineffective assistance at trial, then the court should allow an evidentiary hearing and make a determination on the merits of defendant's claim. Ibid. In order to make a prima facie showing, a defendant must demonstrate a reasonable likelihood of success under the Strickland and Fritz standards. Id. at 463. In the case of plea bargains, where an attorney's misadvice prevents a defendant from fairly evaluating a plea bargain, an evidentiary hearing may be required. State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (citing State v. Taccetta, 351 N.J. Super. 196, 200-01 (App. Div.), certif. denied, 174 N.J. 544 (2002)), certif. denied, 192 N.J. 66 (2007).

A defendant's "bald assertions" that counsel was ineffective are not sufficient to establish a prima facie showing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant produced more than "bald assertions." Walker's affidavit supports defendant's contention that Walker would have exculpated him at the time of trial. The fact that the affidavit was written after Walker was already sentenced and thus had nothing to lose, makes it less weighty, but does not vitiate its worth. A judge should not rule against the credibility of a sworn statement absent an opportunity to test the credibility of the affiant in court. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) ("Where the real issues of fact presented involve events that occurred off the record, that is one good indication the matter cannot be adjudicated on the papers alone."), certif. denied, 158 N.J. 72 (1999); see also Preciose, supra, 129 N.J. at 462 (recognizing that an evidentiary hearing may be necessary when a defendant claims ineffective assistance of trial and appellate counsel "because the facts often lie outside the trial record and because the attorney's testimony may be required").

Defendant's allegation that he signed a form indicating that he wished to appeal but was not afforded an appeal was not addressed by the judge. The sentencing transcript reflects that defendant signed an "appeal rights form." That form, presumably retained by the Office of the Public Defender, would shed light on whether or not in fact defendant indicated he wished to appeal, as he alleges. Defendant, however, does not indicate what issue he wished to raise on appeal. The issues he raised in his PCR could not have been raised on direct appeal. R. 3:22-3. Thus, an appeal would not have affected the outcome and defendant's claim of ineffective assistance of appellate counsel in that no appeal was filed is without merit.

A PCR hearing would clarify whether in fact trial counsel reviewed discovery with defendant and ignored defendant's claim that Walker would exculpate him. Additionally, a hearing would allow the judge to determine whether or not Walker would have exculpated defendant at the time of trial. Depending on the answers to these questions, the judge could move on to determine whether the outcome would have been different and, if so, whether defendant should be permitted to withdraw his guilty plea and go to trial on all of the original charges.

Reversed and remanded for a hearing. We do not retain jurisdiction.