STATE OF NEW JERSEY v. DARREN HALE

NOT FOR PUBLICATION WITHOUT THE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.

DARREN HALE,

Defendant-Appellant.

______________________________________________________________

December 3, 2014

Argued September 15, 2014 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-02-0450.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Lubin and Louis M. Barbone, on the brief).

Nancy P. Scharff, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Scharff, of counsel and on the brief).

PER CURIAM

Defendant Darren Hale appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Pursuant to a negotiated plea agreement, defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1(a). He received an aggregate sentence of eighteen years, subject to an 85% period of parole ineligibility as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently to the sentence he was serving for an unrelated conviction.

In his PCR petition, defendant argued his counsel gave him misinformation, failed to represent him during a critical stage of the proceedings, failed to secure a reduced sentence, and failed to argue for certain mitigating factors at sentencing. The PCR court denied his petition after finding he failed to provide evidential support for his claims. On appeal, defendant argues in a single point

THE LOWER COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

He specifically argues an evidentiary hearing was necessary to prove he was promised a reduced sentence in exchange for information he gave the Camden County Prosecutor about two homicide cases.

At oral argument before us, the State presented copies of certain correspondence it had just located and served on defendant's appellate counsel that had not been provided to the PCR court.1 Both counsel agreed defendant's petition should be reconsidered by the PCR court after it had an opportunity to review the newly discovered documents produced by the State. We agree and remand this matter for reconsideration.

I.

On February 1, 2005, a Camden County Grand Jury returned an indictment, charging defendant with three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, five, and nine); three counts of third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4 (counts two, six, and ten); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5 (counts three, seven, and eleven); three counts of third-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1a (counts four, eight, and twelve); and one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count thirteen).

Defendant's indictment arose from his arrest on June 9, 2004, when police responded to a liquor store after receiving a report of an armed robbery involving two white male suspects. The police apprehended defendant and another man after they fled the scene. The other individual cooperated with police and issued a statement implicating defendant in the robbery, as well the robberies of two convenience stores on June 3 and 8, 2004.

On September 14, 2004, defendant gave a recorded statement to the prosecutor's investigators, after one of them read defendant his Miranda2 rights and informed him he would be questioned regarding three robberies. Prior to beginning their interview, the prosecutor's investigators confirmed with defendant he was represented by counsel who was not present

Q. Ah, Mr. Hale, isn't it correct that you're being represented by an attorney?

A. Yes.

Q. What is your attorney's name?

A. Samuel Asbell.

Q. And, have you spoken to Mr. Asbell in reference to coming to our office today?

A. Yes.

Q. And, what was your conversation with him?

A. He told me to come and give a statement . . . he notified you [ ] that it could only help me.

Q. Ok, so you are here under the permission of your attorney, correct?

A. Yes.

Q. Ok, he as well has contacted our office and advised us that you were willing to provide us with a taped statement and that is why we're here today as well...he has chosen not to be here for this statement. Are you aware of that?

A. Yes.

During the interview, defendant admitted to robbing the liquor store. He denied any knowledge of the robbery of either convenience store, but he did admit he was present at the scene of one of those robberies. Defendant did not provide any information regarding any other crimes during the interview.

At the end of the interview, one of the investigators asked defendant if any threats or promises had been made to compel him to give his statement. Defendant responded: "No. I'm just thinking that, you know, my co-operation means to my benefit." The investigator then asked, "[W]ho advised you of that?" and defendant replied, "My lawyer, Samuel Asbell."

On May 2, 2005, defendant pled guilty to two counts of first-degree robbery (Counts Five and Nine) pursuant to a negotiated plea agreement. In exchange for defendant s guilty plea, the State agreed to recommend an eighteen-year sentence on each count, subject to 85% parole ineligibility period as required by NERA, to run concurrently with each other and with the sentence defendant was currently serving on an unrelated conviction. The State further agreed to dismiss the remaining eleven counts of the indictment. In his plea colloquy, defendant again admitted he committed the liquor store robbery and also admitted his involvement in one of the convenience store robberies. The court confirmed with defendant's counsel that the State was recommending an eighteen-year sentence with an 85% period of parole ineligibility on each count, to run concurrently. Defense counsel agreed, stating "that recommendation is, in fact, the recommendation I discussed with my client." Defendant confirmed he went over the plea forms with his attorney, read and understood all of the questions, answered each question truthfully, and signed and initialed the forms where required. The court verified defendant understood his sentence included an 85% period of parole ineligibility and his being subject to a five-year period of parole supervision after his release.

At the sentencing hearing, the prosecutor and defense counsel asked the court to impose the "sentence in accordance with the recommended sentence." The court found aggravating factors three, six, and nine, and no mitigating factors, and counsel did not argue for any to be applied. The court sentenced defendant in accordance with the plea agreement and advised him of his right to appeal.

Defendant filed a pro se PCR petition on September 2, 2010, and a supplemental verified PCR petition through counsel on July 5, 2012. The PCR court considered oral argument on December 7, 2012, and then denied defendant s petition.

In his supporting certification, defendant alleged his counsel "instructed him to go to the prosecutor's Office [sic] unrepresented and to give a statement," which resulted in defendant incriminating himself. Defendant claimed he entered these discussions in order to receive "a reduction in [his] sentence from 18 years NERA to 12 years NERA" in exchange for him providing information regarding two homicide cases. Defendant attached the transcript of this interview to his certification, but it did not reflect any discussions of crimes other than the robberies for which he was charged.

Defendant further claimed his counsel refused to assist him or take part in these negotiations. Defendant asserted that after he secured the promise of a twelve-year sentence, he requested counsel "make sure that this was part of [his] sentencing proceeding." According to defendant, his counsel told him to accept the plea bargain for eighteen years and he would take care of the reduction later on. Counsel never sought a reduction in defendant's sentence.

Defendant's trial counsel also filed a certification which confirmed he was aware of defendant's meeting with the prosecutor's investigator and that counsel did not participate in any of the discussions. According to counsel, when he has a client who wishes to "provide factor 12 information3 on other people [, he] tend[s] to take a 'hands off' approach" in order to avoid potential conflicts of interest. If his client wishes to proceed, he "allow[s] the client to do that of his own accord."

In this case, counsel stated when defendant first told him he wanted to give information to authorities, counsel informed him he was "ambivalent about his factor 12 cooperation at this stage of the proceeding but [defendant] insisted he wanted to make this contact." Counsel indicated when he was contacted to attend defendant's meeting with the prosecutor's office, he again advised defendant he would not participate. Counsel also asserted he told defendant he could not assure him he would receive any benefit in exchange for his cooperation.

Counsel further certified defendant never told him what information he disclosed to the prosecutor's office nor did defendant ever tell him what benefit was promised, beyond commenting "he was told he would receive consideration." Counsel denied promising defendant his negotiations would be addressed at sentencing or telling him to plead to the recommended sentence and counsel would have it reduced later on. Counsel maintained he was never contacted by the prosecutor's office concerning any benefit for defendant's cooperation.

At the PCR hearing, the court considered defendant's allegations to be more than just a "bald assertion" of deficient performance because counsel's certification corroborated portions of defendant's certification. However, the court concluded an evidentiary hearing was not warranted as defendant failed to demonstrate a reasonable probability that counsel's actions altered the resolution of the case. The court also found defendant's plea bargain was appropriate in light of the sentencing exposure and defendant's criminal history.

Regarding defendant's alleged cooperation with authorities, the court concluded the record did not reflect defendant provided information to the authorities that would have resulted in a change in the plea offer. As there was no record of cooperation, the court found counsel's failure to argue for mitigating factor twelve did not constitute ineffective assistance of counsel.4

However, as noted, the State produced various documents just prior to oral argument before us. Among those documents was a February 15, 2010 letter from defendant's trial counsel to an assistant prosecutor, which specifically referred to a meeting at which counsel evidently attended where the topic of defendant's cooperation was discussed. The letter stated

[Defendant] indicates that his mother apparently spoke to you about his cooperation in [a specific] file and that you had no knowledge of any of this. Although I do not have my file in front of me, I do remember meeting with [other specific assistant prosecutors] on a date they brought [defendant] over from the Camden County Jail to the prosecutor's office. I was sitting there when he gave information to the investigators and it was my understanding that he was supposed to get consideration on [h]is sentence because of that cooperation. Apparently, this has not happened and [defendant] wound up with a period of parole ineligibility totaling twelve years.

Obviously, this letter minimally raises a question as to the accuracy of either counsel's certification filed in response to the PCR petition or of the February 2010 letter and, if the letter is correct, provides a basis for arguing defendant's cooperation as a mitigating factor during his sentencing.

We believe it is best for the PCR court to review these recently discovered documents by reconsidering its original decision to deny defendant's petition without an evidentiary hearing. We do not, however, direct the outcome either way and leave it to the court's discretion.

We therefore vacate the denial of defendant's PCR petition and remand the matter for further proceedings. We do not retain jurisdiction.

Reversed and remanded.

1 The documents produced consisted of defense counsel's February 15, 2010 letter to an assistant prosecutor; defendant's January 15, 2010 letter to his counsel; and defendant's January 23, 2007 and January 12, 2010 letters to the assistant prosecutor.

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

3 The reference is to one of the mitigating factors a court must consider during sentencing if applicable. N.J.S.A. 2C:44-1(b) (12) ("The willingness of the defendant to cooperate with law enforcement authorities").

4 Defendant's PCR petition claimed counsel also failed to argue for mitigating factors one, two, and four. Defendant has not raised those arguments in this appeal.