STATE OF NEW JERSEY v. ANDREW DENNIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW DENNIS,

Defendant-Appellant.

__________________________________

February 7, 2014

 

Submitted January 6, 2014 Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

 

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

This matter returns to us after our remand to the Law Division to conduct an evidentiary hearing on defendant Andrew Dennis's post-conviction relief (PCR) claim of ineffective assistance of counsel. State v. Dennis, No. A-3934-07 (App. Div. Jan. 6, 2011). Following that hearing, the PCR court rejected defendant's claim. Defendant appeals, and we affirm.

By way of background, defendant and two co-defendants were indicted for multiple counts each of first-degree robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1b(1), (2), (3) and (4); second-degree armed burglary, N.J.S.A. 2C:18-2; weapons offenses, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:39-5b; conspiracy, N.J.S.A. 2C:5-2; and one count of third-degree criminal restraint, N.J.S.A. 2C:13-2. These charges stemmed from an armed robbery and shooting of a drug dealer on August 14, 2000 in Atlantic City.

On November 15, 2000, defendant was presented with the State's initial plea offer pursuant to Rule 3:9-1(b). The offer provided for defendant to serve ten years in prison with an eighty-five percent period of parole ineligibility, and was neither conditioned on defendant providing testimony against his co-defendants nor on them entering guilty pleas together. The offer was not accepted. Over the next four months, defendant appeared for three status conferences, the first and last before the same pre-trial judge. At the final pre-trial conference, on February 7, 2001, the State extended another plea offer for defendant to serve ten years in prison with an eighty-five percent period of parole ineligibility in exchange for a guilty plea and defendant's truthful testimony against his co-defendants at trial. Defendant rejected this plea offer as well.

Following a joint jury trial, defendant and his co-conspirators were convicted of all charges save one count of armed robbery, which the court dismissed sua sponte during trial. In sentencing defendant, the court granted the State s motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-7, and imposed upon him an aggregate sixty-year term of imprisonment with a fifty-one year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed defendant's judgment of conviction. State v. Dennis, No. A-0422-01 (App. Div. June 29, 2004). The Supreme Court granted defendant s petition for certification, State v. Dennis, 182 N.J. 428 (2005), and later affirmed his judgment of conviction, State v. Dennis, 185 N.J. 300 (2005).

Thereafter, defendant filed a timely PCR petition and a motion to correct an illegal sentence.1 In support of his PCR

petition, defendant submitted a certification of his trial

counsel who attested that:

[I]t is more likely th[a]n not that I

failed to advise the defendant that he

was subject to a term of incarceration

of 60 years in which he must serve 85%

before becoming eligible for parole.

It is likely that I advised the

defendant that he was subject to a term

of incarceration of 20 years in which

he must serve 85% of such term before

being eligible for parole. I believe

this is so since at sentencing I

remember being surprised that the

defendant received a term of 60 years

in which he must serve 85% before

becoming eligible for parole.

 

Defendant also submitted his own certification in which he

attested that trial counsel advised him "that the most I would

receive if I lost at trial was 20 with a[n] 85%[,]" and that had

he been aware of his exposure to an extended term or consecutive

sentences, he would have taken "the plea of ten years without a

doubt whatsoever."

 

 

 

The PCR court denied defendant's petition, including his

request for an evidentiary hearing.2 Defendant appealed and

moved to enlarge the record on appeal to include transcripts

from the three pre-trial conferences that defendant attended. We denied the motion and remanded to permit defendant to submit the additional materials to the PCR court. State v. Dennis, No. A-3934-07 (App. Div. Mar. 9, 2009).

In defendant's verified petition for PCR prior to the September 4, 2009 remand hearing, he reiterated that:

Had I known that I could have been

sentenced to an aggregate term of

incarceration of either sixty years in

which I must serve 85% or forty and

one-half years prior to being eligible

for parole, I would have accepted a

plea offer [of] ten years in which I

must serve 85% of such term(s) before

becoming eligible for parole and would

have testified against my co-defendants

to receive such an offer.

 

In addition, transcripts of the status conferences disclosed

that defendant was never advised on the record of his sentencing

exposure, although during the February 7, 2001 conference, the prosecutor, in colloquy with the court, referred to defendant as being "extended term eligible."

At the conclusion of argument, the judge once again denied

defendant's PCR petition and request for an evidentiary hearing.

On appeal, we found that defendant had made a prima facie claim of ineffective assistance of counsel and therefore remanded the matter to the trial court for an evidentiary hearing. State v. Dennis, No. A-3934-07 (App. Div. Jan. 6, 2011).

As we directed, the proceeding was conducted before a different judge, who heard testimony from defendant and his sister, Denise Worthy, and considered various documents including the aforementioned certifications of defendant and trial counsel as well as correspondence between defendant and trial counsel. According to defendant, the first time he learned he was extended term eligible was post-trial, even though the transcript of the February 7, 2001 pre-trial status conference reveals that the prosecutor stated, contemporaneous with the plea offer rejected by defendant, that defendant was extended term eligible. As the PCR judge noted:

the prosecutor did not state this fact in passing but as part of a conversation about the merits of the plea offer. The [p]rosecutor informed the court of [defendant's] six prior indictable convictions, and the court informed the [defendant] that it would not even consider the ten year sentence, serve five [year] period of parole ineligibility, and that [t]en years is not what [the court] consider[ed] a proper sentence, for armed robbery.

 

Moreover, as found by the PCR judge, defendant's sister testified that there was public information as to the possibility that defendant would be sentenced as a repeat offender. In fact, on July 12, 2001, she wrote to defendant's trial counsel indicating her concern over the potential for extended-term sentencing and beseeching counsel to help defendant avoid "being sentenced as a repeat offender" and "being incarcerated double time[.]" And in preparation for sentencing, trial counsel wrote defendant a one-page letter, in which she referred four times to an "extended term."

In his testimony before the PCR judge, defendant also claimed he did not have an opportunity to discuss the events of August 14, 2000 with his attorney and had no recollection of telling a defense investigator that he had "no knowledge" of his victim's brutal robbery. However, correspondence from counsel to defendant pre-trial indicates the two had communicated about the case but that, as later correspondence from counsel reveals, defendant had not told her the truth about the underlying events.3 Indeed, while professing not to remember anything about his victim's trial testimony except "a bunch of lies," and telling counsel before trial that he did not shoot the victim, defendant testified at the PCR hearing that he was guilty.

Although defendant claimed in his PCR petition that he was induced to reject the State's plea offer by his attorney's advice that he faced a maximum of only twenty years in prison with a NERA parole disqualifier, in his testimony at the evidentiary hearing, defendant did not attribute his plea rejection to any one cause. On the contrary, as correspondence to his sister reveals, defendant believed the State could not prove his guilt, as its proofs were weak and based on a faulty identification. Prior to trial, defendant informed his sister that his "legal situation look[ed] good[,]" and around the same time, he also informed trial counsel that he was "not interested in a deal" with the State. In fact, defendant told his trial attorney that, rather than strike any "deal" with the State, he would take his chances with a trial and "do whatever time" came his way if he were found guilty.

At the close of evidence, the PCR judge rejected defendant's claim of ineffectiveness of trial counsel, finding neither deficient performance by counsel nor prejudice to defendant. In so ruling, the court found defendant's testimony "unpersuasive, self-serving, inadequate, and of little objective value." Specifically, as to counsel's performance, defendant's "repeated statements that he was never informed he was extended term eligible, despite indisputable evidence to the contrary, calls into question his credibility and his memory." His testimony in this regard "was internally inconsistent, self-serving and ultimately unpersuasive." As were his bald assertions during the evidentiary hearing that counsel had done "nothing" in her representation of him, convincingly belied, in the PCR court's view, by "counsel's statements to the trial court as to the nature and progress of her representation of [defendant]" throughout, and her favorable result at a Wade4 hearing.

As for trial counsel's certification that she may have advised defendant that his sentencing exposure was twenty years with a NERA parole disqualifier, instead of sixty years subject to NERA, the PCR court found the document "equivocal at best" and defendant's reliance thereon "misplaced":

First and foremost, trial counsel did not state with certainty that she had misinformed [defendant]. Second, and quite unfortunately, trial counsel passed away after a long battle with cancer on March 23, 2008, a battle she was in the midst of fighting at the time of her certification. Given [counsel's] serious health problems it is likely that she was unable to bring a detailed, accurate, and reliable reflection to her certification. The unfortunate circumstances of her passing and subsequent unavailability deprive the court of any opportunity to question the reliability and accuracy of her ambivalent certification. As such the court affords little weight to [it].

 

. . . .

 

[T]he court places little reliance on the much discussed certification of trial counsel. It is inconclusive as to what trial counsel may have informed [defendant] as to his sentence exposure, and is furthermore a hearsay statement made by counsel a scant few months before her all too early death.

 

Even assuming counsel's misadvice, the PCR court found no prejudice inured to defendant as a result. On this score:

The [c]ourt is not persuaded that, but for trial counsel's miscalculation of [defendant's] sentence exposure, [defendant] would not have gone to trial and faced sentencing upon conviction in the court's discretion.

 

It should first be noted, although it is not dispositive of the [defendant's] claim, that the trial court clearly stated that it would not have accepted a plea bargain for ten years, even given the application of NERA.

 

. . . .

 

Also on point, and more persuasive, is the fact that [defendant] repeatedly indicated to multiple persons that he did not believe the State could meet its burden.

 

. . . .

 

The weight of the evidence suggests that [defendant] miscalculated the strength of the State's proofs. The [defendant's] recent indications that he would have taken the plea if he only knew he was facing such a lengthy extended term are not supported by the record. The record more accurately reflects Petitioner as a defendant who was going to trial no matter what.

 

Here, the [defendant] was not interested in a plea bargain and would have gone to trial regardless of his sentence exposure. [Defendant] mistakenly believed that the State could not prove its case. In light of the above the court finds that the [defendant] has not demonstrated that he was prejudiced by any alleged misadvice, but rather took his chances with judge and jury.

 

Although the PCR judge rejected defendant's ineffective assistance of counsel claim, in "the interests of justice" he returned defendant to the status quo ante before sentencing, vacated the sentence and later resentenced defendant on the first-degree armed robbery conviction (count one) to twenty years' imprisonment with an eighty-five percent parole bar, for an aggregate thirty-year term subject to NERA.

On appeal, defendant, through counsel, contends:

I. DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS BY MISADVISING HIM AS TO HIS SENTENCING EXPOSURE.

 

In addition, defendant pro se raises the following issues:

I. THE PCR COURT RULING IS CLEARLY MISTAKEN AND WIDELY OFF THE MARK AND THE INTEREST OF JUSTICE DEMANDS INTERVENTION AND CORRECTION BY THE APPELLATE DIVISION THE APPELLATE COURT SHOULD REVIEW THE RECORD AS IF IT WERE DECIDING THE MATTER AT INCEPTION AND MAKE ITS OWN FINDINGS AND CONCLUSIONS.

 

II. IF THIS COURT REACHES THE MERITS IN [DEFENDANT'S] FAVOR ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, THAT UNDER TEAGUE V. LANE LAFLER V. COOPER, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) REMEDY SHOULD NOT APPLY TO [DEFENDANT'S] MATTER SINCE [DEFENDANT] FIRST RAISED THIS ISSUE MAY 2006. AND THE EXISTING REMEDY AT THAT TIME WAS RENEGOTIATE A PLEA DEAL OR A NEW TRIAL SO THEREFORE LAFLER REMEDY IS A NEW ONE AND SHOULD NOT APPLY IN [DEFENDANT'S] MATTER. SINCE [DEFENDANT] IS ON COLLATERAL REVIEW.

 

It is axiomatic that, in order for defendant to

obtain relief based on ineffective assistance grounds, he is

obliged to show not only the particular manner in which

counsel's performance was deficient, but also that the

deficiency prejudiced his right to a fair disposition of the

charges. 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). The latter requires defendant, in turn, to establish "a reasonable probability that, but for" the attorney's deficient performance, the outcome of the proceeding in which the attorney represented defendant would have been different. State v. Taccetta, 200 N.J. 183, 193 (2009)(quoting Fritz, supra, 105 N.J. at 52); State v. Goodwin, 173 N.J. 583, 597 (2002). In the present context, defendant was required to show that he would have accepted the plea offer if he had been aware of his sentence exposure and that his guilty plea would have ultimately been accepted by the court. As the facts adduced at the evidentiary hearing make clear, however, defendant has failed to prove either the performance or prejudice prongs of the Strickland/Fritz test. We find no merit to defendant's contrary contentions on appeal, Rule 2:11-3(e)(2), and therefore affirm, substantially for the reasons stated by the PCR judge in his thorough and well-articulated letter opinion of January 6, 2012.

Affirmed.

1 The PCR court granted defendant's motion and then resentenced him to an aggregate term of sixty years in prison with a forty and one-half year period of parole ineligibility.

2 After this ruling, defendant's trial counsel passed away and consequently never testified about the contents of her certification.

3 In her letter of July 3, 2001 to defendant, counsel states repeatedly that defendant needs to tell her the whole story and admonishes that "[i]t's time to be honest with your lawyer."

4 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).