STATE OF NEW JERSEY v. ROBERT McNAUGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5634-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT McNAUGHT,

Defendant-Appellant.

______________________________________

April 19, 2013

Submitted January 24, 2012 - Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-06-0711.

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

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

PER CURIAM

Defendant Robert McNaught appeals from the order denying without an evidentiary hearing his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. Seeking to set aside his guilty plea to third-degree arson, and his sentence to a four and one-half year prison term with a two year period of parole eligibility, defendant argues that his trial counsel had a conflict of interest, misinformed him about the consequences of his plea, and failed to retain a psychiatrist to evaluate his mental capacity. Defendant also argues that counsel failed to argue at sentencing that defendant's illness was a mitigating factor. Having considered the record in light of defendant's arguments, we affirm.

On May 20, 2005, a Mercer County Grand Jury charged defendant in a six-count indictment with two counts of first- degree arson, N.J.S.A. 2C:17-1(a)(1) and 1(d) (count one), and N.J.S.A. 2C:17-1(a)(2) and 1(d) (count two); two counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and 2C:2-6 (count three), and N.J.S.A. 2C:17-1(a)(2) and 2C:2-6 (count four); and two counts of third-degree arson, N.J.S.A. 2C:17-1(b)(1) and 2C:2-6 (count five), and N.J.S.A. 2C:17-1(b)(2) and 2C:2-6 (count six). In a superseding indictment, defendant was charged with the same offenses in the first six counts as well as a seventh count, second-degree possession of a weapon, a Molotov cocktail, for an unlawful purpose, N.J.S.A. 2C:39-4. Following the initial indictment, defendant moved to suppress statements he had made to the police shortly after his arrest. The court conducted a Miranda1 hearing. Following a day of testimony, the court adjourned the hearing to permit the parties to provide supplemental documentary evidence and submit written closing arguments. Before the court decided the motion, defendant decided to plead guilty. In exchange for his guilty plea to third-degree arson charged in count five of the superseding indictment, the State agreed to dismiss the remaining six counts and recommend that defendant be sentenced to a five-year prison term with two and one-half years of parole ineligibility.

During his guilty plea proceeding, defendant admitted that on March 11, 2005, after taking prescription medication, he drank most of the day at the house of a friend, Brian Everett. That evening, he took Everett's pickup truck, picked up a female, and then drove to his former girlfriend's sister's home. He knew his girlfriend's sister still lived at the home, but he was unsure whether his former girlfriend still lived with her sister. Upon his arrival, defendant picked up a piece of asphalt and threw it through a bay window. He then lit a Molotov cocktail and dropped it into a flower bed three or four feet from the house. Defendant admitted that his purpose was to send his girlfriend a message and that he recklessly disregarded both the chance that the house could burn down and that someone who occupied it could be injured.

During the proceeding that culminated in defendant's guilty plea, both defense counsel and the court explained to defendant the consequences of his plea. When defendant entered the plea, he was serving a term of supervised release for a federal offense he had committed in New York. Defense counsel explained that defendant's guilty plea to third-degree arson "constitute[d] a per se violation of his supervised release . . . [and t]he [j]udge can now sentence him to up to five years of imprisonment with the Federal Bureau of Prisons . . . ." Defense counsel explained in open court, as he had previously explained privately to defendant, that "a federal judge cannot impose a sentence concurrent to a state sentence." Defense counsel further acknowledged that the State's plea offer was conditioned upon the prosecutor verifying that the federal sentence would be consecutive to the sentence for arson. Defense counsel also explained that defendant was scheduled to be sentenced for another crime in another county, and that the sentencing judge in that county had agreed to impose a sentence concurrent to defendant's sentence for third-degree arson.

Following defense counsel's representations about the plea bargain, the court carefully questioned defendant about his plea. The judge asked explicitly if defendant understood "that the federal sentence that is going to be imposed as a result of the entry of this plea is going to be consecutive to the sentence that I impose . . . ." Defendant said that he understood.

Thereafter, at defendant's sentencing on September 8, 2006, the court recounted defendant's guilty plea and stated, "it is understood that this sentence will ultimately be concurrent to any sentence imposed as a result of the violation of your federal probation as well as a pending charge in Ocean County." Later during the proceeding, however, defense counsel explained:

[Defendant is] going to get - - even if the federal judge gave him a flat out, concurrent sentence, . . . [i]t is a consecutive sentence no matter how you slice it if you go forward in state sentencing first because the federal government will not take custody of him and the Federal Bureau of Prisons will not give you credit for time spent in a separate sovereign.

Before imposing sentence, the court summarized the circumstances of defendant's offense and also summarized defendant's background. The court stated:

You have some history of emotional issues and clearly intoxication. You claim that you were diagnosed as bipolar in [1994], that you've had some other emotional issues, but the most significant is the alcoholism for which you were successful in remaining sober for a period of about ten years[.]

The court also noted that the author of the pre-sentence report, while acknowledging "the potential for destruction and serious injury that could have resulted from your conduct, . . . also cites your alcoholism and emotional problems that could have significantly influenced you. You claim to have been sober since March of 2005."

After carefully weighing aggravating and mitigating factors, the court sentenced defendant to serve a custodial sentence of four and one-half years, with two years of parole ineligibility. The court also imposed mandatory fines, penalties, and assessments; and ordered restitution for the broken bay window.2

Defendant did not file a direct appeal. On April 24, 2007, he filed a PCR petition which he amended in September 2008 after counsel was appointed to represent him. Following oral argument, the trial court denied defendant's petition in a written opinion and order filed an October 30, 2009. Defendant appealed.

Defendant raises the following arguments for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

(a) Conflict of interest

(b) Misinformed on plea

(c) Failure to Retain a Psychiatrist; Mental Capacity

POINT II

COUNSEL'S FAILURE AT SENTENCING TO ARGUE DEFENDANT'S MENTAL ILLNESS AS SUBSTANTIAL GROUNDS TOWARD MITIGATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.

POINT III

REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE THAT HE WAS PREJUDICED BY TRIAL COUNSEL'S APPEARANCE OF IMPROPRIETY.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "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," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463. To successfully demonstrate the likelihood of succeeding under the Strickland-Fritz test, a petitioner "must do more than make bald assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

With those principles in mind, we turn to defendant's first argument that his trial counsel had a conflict of interest. The night defendant committed arson, he drove Brian Everett's pickup truck to the crime scene. Defense counsel's law partner had defended Everett in municipal court in the fall of 2001. In March 2005, after defendant was charged with arson, investigating detectives questioned Everett. Concerned that he might be arrested, Everett again consulted defense counsel's partner. According to the statement Everett gave to the assistant prosecutor who prosecuted defendant, defense counsel's partner met with Everett once, charged him $300, but "did not offer any legal advice at this time. Rather, he advised that I should come back to him when things started moving in the case." No one from defense counsel's law office ever spoke with Everett again.

Defendant gave his statement to the assistant prosecutor on May 17, 2006. On July 20, 2006, in a letter responding to an inquiry from the court about the superseding indictment, the assistant prosecutor stated, among other things, that "Brian Everett's information to the authorities that defendant admitted the arson and used a paid accomplice was testified to [before the grand jury] in both cases." The assistant prosecutor also stated, "I am awaiting [defense counsel's] decision as to whether to accept a plea in this matter. If trial is necessary, the State will address the possible conflict [of interest] issue before further proceedings."

Defendant asserts the prosecutor used this statement "to put leverage on trial counsel to negotiate a plea." He suggests it is reasonable to believe that Everett disclosed to defense counsel's partner information that defense counsel could have used to assess the strength or weakness of the State's position. Defendant also suggests that had the case proceeded to trial, his attorney might have been precluded from cross-examining Everett. Lastly, defendant asserts that his "choice as to whether to accept a plea or to go to trial was affected by the knowledge [the] State had regarding the witness speaking to [d]efendant's firm prior to plea negotiations."

To refute defendant's contentions, the State relies upon a letter from defense counsel responding to another attorney's inquiry into defendant's allegations that his attorney was ineffective. Defense counsel's letter states, in part:

As events turned out, the relationship between Brian Everett and [my partner] was of no moment to the defense and fully disclosed to [defendant]. Discovery revealed that [defendant] had given a statement to police admitting his involvement in the arson, was identified by a passing motorist at the scene, and was the only logical suspect, having recently concluded a bitter palimony dispute . . . with the victim, his ex-girlfriend. Once the trial judge advised she planned to admit [defendant's] statement to the police; once his ex-girlfriend testified at a domestic violence hearing as to how she knew [defendant] was the perpetrator; once I located the independent witness, who was quite able to identify [defendant] and Mr. Everett's truck at the crime scene; and once I spoke to the police officer who spoke to [defendant] on the night of the arson during which conversation [defendant] admitted having possession of the truck identified at the crime scene, it was apparent that an alibi defense was not viable.

[Defendant] did it. He admitted to me he had thrown a Molotov cocktail at his girlfriend's house, claiming he was drunk he missed the bay window out front after first breaking the glass by hurling a rock through it. (Indeed, a Molotov cocktail was found in the bushes next to the exterior of the window). On another occasion, he claimed he gave the Molotov cocktail to his passenger and told him to "do what you gotta do." He also claimed he had picked up a black female in downtown Trenton earlier in the evening for a sexual encounter and that she was with him at the time of the attempted arson. Efforts to locate this unidentified woman were unproductive.

. . . .

With respect to Brian Everett, [defendant] admits in his filing that I advised him of my partner's prior contacts with Mr. Everett, as well as my view there would be no actual conflict. Mr. Everett was not charged with a crime, nor was he a co-defendant. I was satisfied that Mr. Everett was little more than an incidental witness to the events leading to the arson, but [defendant] was certainly entitled to know the issue might give the prosecutor pause. Indeed, I discussed it at length with the prosecutor, who took a statement from Mr. Everett.

The trial court rejected defendant's argument. The court pointed out that when defendant retained defense counsel, counsel's partner no longer represented Everett; and that by his own admission, Everett received no legal advice as a result of the consultation. The trial court also noted that defense counsel consulted defendant regarding Everett's history with counsel's partner, and defendant nevertheless chose to continue with defense counsel's representation. As to the assistant prosecutor's letter, the court determined that "[t]he mere mention of a possible conflict . . . hardly rises to the level of a threat and certainly not a substantial enough threat that would influence [defense counsel] to convince his client to enter a plea." The court concluded that defense counsel "conscientiously counseled the defendant as to Mr. Everett's prior dealing with his partner and as the defendant has failed to identify . . . true threat of prosecutorial action, the defendant fails to establish any error made by defense counsel." We agree entirely with the court's conclusion.

Significantly, defendant has neither cited to a Rule of Professional Conduct nor submitted an affidavit that he somehow felt pressured by Everett's consultation with defense counsel's partner to enter a guilty plea and forego a trial. Even if we assume defense counsel had a conflict of interest that rendered his performance deficient under the first Strickland prong a proposition difficult to credit on the record before us defendant did not demonstrate that but for the alleged conflict of interest, he would not have pled guilty, and would rather have insisted on going to trial. Defendant has never denied driving Everett's pickup truck to the crime scene. And he does not argue, nor assert any authority for the proposition that Everett's testimony would be barred if he were permitted to withdraw his plea and proceed to trial. Defendant's failure to address the fact that Everett's testimony would be admissible even if defendant were represented by a new attorney prevents him from prevailing under the second part of the Strickland-Fritz analysis.

Defendant makes three assertions: the prosecutor used Everett's concern about the alleged conflict to leverage trial counsel to negotiate a plea; had the case proceeded to trial, defense counsel might have been prohibited from cross-examining Everett; and defendant's choice as to whether to accept a plea or go to trial was affected by the State's knowledge that Everett had spoken with defense counsel's partner. The first conclusory statement is entirely unsupported. Nowhere in defendant's certification does he say that his defense attorney coerced him into pleading guilty, a proposition refuted by the plea colloquy. Defendant has not detailed any conversations in which his attorney made statements to coerce him to plead guilty, and has not explained why, in response to the court's questions during the plea colloquy, he represented that his plea was voluntary.

Defendant's second assertion, that his attorney might have been precluded from cross-examining Everett at trial, is sheer speculation. And, his final assertion, that his choice as to whether to accept a plea or go to trial was affected by the State's knowledge that Everett had spoken with defense counsel, is also a conclusory statement, unsupported by defendant's own affidavit. Defendant's speculative assertions are not competent to establish a prima facia case of the second Strickland-Fritz prong. See Cummings, supra, 321 N.J. Super. at 170.

We also reject defendant's argument that his trial counsel misinformed him about the consequences of his plea. Defendant claims trial counsel misled him into accepting a plea agreement by misrepresenting that his federal sentence would be concurrent. Defendant's assertion is belied by the transcript of his guilty plea. During that hearing, defense counsel informed him, explicitly, that the federal sentence would be consecutive to the state sentence. The judge elicited defendant's understanding that the federal plea would be consecutive. In the absence of defendant's failure to address in any manner his explicit acknowledgment that the federal sentence would run consecutive to his state sentence, defendant has not established a prima facie case of ineffective assistance of counsel.

Lastly, we are unpersuaded by defendant's argument that his counsel was ineffective for failing to "consider [defendant's] ability to enter into a plea either voluntarily or knowingly." Defendant "submits that he did not possess the mental capacity, at the pretrial stage of the proceedings, to make a rational and intelligent decision regarding his plea." Defendant's own certification refutes these allegations in his brief.

Defendant does not assert in his certification that he was incompetent and incapable of knowingly pleading guilty to third-degree arson. To the contrary, defendant recounts in his certification how his attorney insisted on having the State sentence imposed before the federal court imposed its sentence on defendant's violation of supervised release. Defendant insists that he told his attorney that "concurrency would be practically impossible," and that in his, "twenty years' experience as Special Agent with the Treasury Department, the federal plea was always first, and . . . controls the subsequent state pleas and sentencing." According to defendant, he was so concerned with the issue he contacted his former supervisor, who told him that defense counsel knew what he was doing. Those are hardly the statements and actions of an incompetent person who does not understand the nature and consequences of his plea and sentencing.

Defendant also challenges his sentence as "much harsher than would have otherwise been rendered" if counsel had adequately argued appropriate mitigating factors, namely, defendant's "mental acuity" or "mental condition." Defendant suggests that his counsel should have arranged for and presented a psychiatric expert's report to the court.

Defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. Defendant entered into a negotiated guilty plea knowing that the State would recommend that he be incarcerated for five years, with two and one-half of parole ineligibility. When the court denied defendant's PCR petition, it aptly noted that the sentencing judge considered defendant's mental illness and addiction. In fact, after properly balancing aggravating and mitigating factors relevant to defendant's sentence, the judge sentenced defendant to a lesser period of incarceration and lesser period of parole ineligibility than that recommended by the State. Defendant has not produced a letter, report, certification, or any competent evidence to support his argument that the sentencing judge did not properly weigh his mental problems. Defendant has not demonstrated that defense counsel, who persuaded the sentencing judge to impose a lesser sentence than that recommended by the State, was ineffective.

Lastly, defendant did not establish a prima facie case of ineffective assistance of counsel under Strickland and was therefore not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The following month, on October 27, 2006, defendant appeared in Federal Court, pled guilty to violating his probation, and was sentenced to a thirty month prison term to run consecutively to the sentence he was serving for arson.