STATE OF NEW JERSEY v. KALEE COLEMAN

NOT FOR PUBLICATION WITHOUT THE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.

KALEE COLEMAN, a/k/a KHALEE

COLEMAN a/k/a KHALEE COLEMAN

MUHAMMAD,

Defendant-Appellant.

____________________________________

June 25, 2014

Submitted March 19, 2014 Decided

Before Judges Fuentes and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-04396.

Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kalee Coleman appeals from the denial of his post-conviction relief (PCR) petition. We affirm.

Defendant was tried before a jury over a three-day period in September 2003 and convicted of second degree attempted aggravated assault.1 On November 7, 2003, the trial court granted the State's motion and sentenced defendant as a persistent offender under N.J.S.A. 2C:44-3a to a term of fifteen years, with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction and sentence on direct appeal in an unpublished opinion, State v. Kalee Coleman, No. A-2392-03 (App. Div. Dec. 21, 2004), and the Supreme Court denied defendant's petition for certification. State v. Coleman, 183 N.J. 586 (2005). Defendant filed a pro se PCR petition on July 7, 2005, arguing he was denied effective assistance of counsel. Among the many claims of ineffective assistance against his trial attorney, defendant claimed the attorney did not adequately discuss with him the possibility of reducing his penal exposure by negotiating a plea agreement. The PCR court denied the petition on December 18, 2008, without conducting an evidentiary hearing.

On defendant's appeal of the denial of his PCR petition, we affirmed the PCR court in all but one of its rulings and remanded for the court to conduct an evidentiary hearing. State v. Kalee Coleman, No. A-3049-08 (App. Div. July 14, 2010) (slip op. at 2). Specifically, we noted that the PCR judge found that the State had never made a plea offer to defense counsel. Id. at 12. However, in its appellate brief, the State conceded that "significant plea negotiations [] took place prior to trial." Id. at 12-13. We thus remanded for the PCR court to conduct an evidentiary hearing and determine "whether a plea offer had been extended by the prosecutor but not communicated to defendant by his attorney[.]" Id. at 13.

Following our directive, Judge Martin G. Cronin conducted an evidentiary hearing on August 8, 2011, at which the assistant prosecutor who tried the case for the State and the attorney who represented defendant testified. Defendant was represented by assigned PCR counsel who had the opportunity to examine each witness. A number of documents were also admitted into evidence, including the "Essex County Prosecutor's Office Homicide Plea Information Sheet," and a "template" showing that a plea offer had been approved and signed by senior supervisors and managers of the Prosecutor's Office.

After hearing from these witnesses, Judge Cronin found defense counsel "credibly testified that she had plea discussions with [the prosecutor]." Judge Cronin accepted as truthful defense counsel's assertion that "she met with the defendant and discussed the case with him." With respect to plea negotiations, Judge Cronin found:

Now, after the meeting with the defendant, [defense counsel] testified that she then initiated the informal plea negotiations with [the prosecutor] by advising [the prosecutor] that the defendant was amendable to an offer that did not involve a New Jersey State Prison term. [The prosecutor] testified and corroborated that [defense counsel] advised him of the defendant's amenability to a plea to a non-custodial New Jersey State Prison term.

[The prosecutor] testified and he responded that the state would only consider a plea in a second-degree range, which, based upon the nature of the offense, a criminal homicide, would range from five to 10 years in New Jersey State Prison, subject to an 85 percent parole ineligibility term under the No Early Release Act. Both [defense counsel] and [the prosecutor] testified that this was their understanding of the [S]tate's position.

Both [defense counsel] and [the prosecutor] further testified to their understanding of the then-existing status of the negotiations. More specifically, if the defendant was interested in such a second-degree plea, then [defense counsel] and [the prosecutor] could discuss a specific number of years within the second-degree range of five to 10 years. [Defense counsel] understood that "the ball was in her court" in the sense that if the defendant was interested in such a second-degree plea, then the defendant would have to specify the number of years in New Jersey State Prison that the defendant would be amendable to serve as a part of his guilty plea. Both [defense counsel] and [the prosecutor] testified that only a range was discussed, never a specific number of years.

[Defense counsel] further credibly testified that she communicates the -- communicated the state's position -- namely, an imprisonment term within the second-degree range -- to the defendant who reaffirmed to [defense counsel] that he was not interested in any plea that involved him serving a New Jersey State Prison term. Accordingly, [defense counsel] did not advise [the Prosecutor] of a specific number of years in New Jersey State Prison. In the absence of that specific number, [the Prosecutor] testified that he did not seek supervisory approval for any plea offer.

Judge Cronin found these witnesses credible. Based on the evidence before him, Judge Cronin distinguished between "informal plea negotiations" and "a formal plea offer." Although the record clearly showed that counsel for both sides engaged in informal plea negotiations, Judge Cronin specifically found "that the [S]tate never made a formal plea offer[.]"

Defendant now appeals from the denial of his PCR petition raising the following argument.

POINT ONE

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S POST-CONVICTION RELIEF APPLICATION BASED ON TRIAL COUNSEL'S FAILURE TO COMMUNICATE A PLEA BARGAIN PROPOSAL TO DEFENDANT.

We reject this argument and affirm substantially for the reasons expressed by Judge Cronin in his oral opinion delivered from the bench on August 10, 2011. As an appellate court, we are bound to defer to the factual findings made by a trial judge that are supported by substantial evidence in the record. State v. Hreha, __ N.J. __, __ (2014) (slip op. at 26) (citing State v. Elders, 192 N.J. 224, 243 (2007)). A plea agreement requires "a meeting of the minds upon the negotiated pleas and is an executory agreement since it depends on the approval of the sentencing court." State v. Smith, 306 N.J. Super. 370, 383 (App. Div. 1997). The record supports Judge Cronin's ultimate finding that no such meeting of the minds occurred here.

Affirmed.

1 The Judgment of Conviction incorrectly denoted this offense as "attempted aggravated assault." As defined in N.J.S.A. 2C:12-1b(1): "A person is guilty of aggravated assault if he: (1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." (Emphasis added.) Therefore, the element of attempt as defined in N.J.S.A. 2C:5-1 is already incorporated within the definition of second degree aggravated assault.