STATE OF NEW JERSEY v. JIHAD BASSIT

NOT FOR PUBLICATION WITHOUT THE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.

JIHAD BASSIT, a/k/a JIHAD

BAASIT,

Defendant-Appellant.
 
________________________________________________________________

August 4, 2015

Submitted April 27, 2015 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-3194, Accusation No. 10-6-530.

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

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm in part, reverse in part and remand for an evidentiary hearing.

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts two and three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).

These charges arose from a shooting that occurred in Irvington in July 2008.1 During an altercation with N.A., defendant shot a .38 revolver four times in N.A.'s direction. N.A. was shot in the foot and a bystander, A.H., was killed. Defendant did not have a permit for the revolver.

In December 2009, while he was in jail awaiting disposition of the indictment, defendant telephoned his friend, Tourrie Moses, and directed Moses to murder Hydiiyah Garnes-Jean Baptiste, a witness to the July 2008 shooting.

Defendant then entered into a plea agreement that provided as follows. The charges in the indictment were disposed of by defendant's guilty pleas to count one, amended to charge first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); count two, amended to charge second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and count four of the indictment, second-degree unlawful possession of a weapon. Defendant also agreed to waive indictment and plead guilty to a one-count accusation charging him with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1); N.J.S.A. 2C:11-3(a)(1), (2). The State agreed to recommend an aggregate prison sentence of twenty years subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.2 Defendant entered his guilty pleas pursuant to the agreement on June 9, 2010.

Prior to sentencing on November 1, 2010, defendant moved to withdraw his guilty plea. His counsel explained defendant had two contentions regarding the application

The first is that he maintains his innocence. He's indicated that he's not guilty of the charges in the case.

. . . .

Not only does he maintain that he's innocent of the charges, Judge, he's indicated that my advise [sic] to him specifically in persuading him was inappropriate wisdom in accepting the plea in this case. He feels on reflection he feels that in following my advise [sic] he made a mistake and he wishes now to withdraw his plea under State v. Slater[, 198 N.J. 145 (2009)].

The judge addressed defendant directly and asked if he had anything to say on his own behalf with respect to the motion. Defendant replied, "No, sir."

Pursuant to Slater, supra, the trial court was required to consider and balance the following four factors in evaluating his motion

(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[Id. at 157-58.]

The decision to set aside a guilty plea lies within the court's discretion, which is to be exercised liberally to allow plea withdrawals before sentencing. Id. at 156. However, "[i]n all cases . . . the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Ibid. (citation and internal quotation marks omitted).

The trial judge reviewed his colloquy with defendant at the time he entered his plea, found no evidence of any coercion, and stated

The Court is completely satisfied that there was an adequate factual basis set forth on the record . . . and . . . that he had a full understanding of the nature of the charges against him and equally important, that he fully understands the consequences of the plea.

The judge then addressed each of the Slater factors. As to the first factor requiring a colorable claim of innocence, the judge observed, "[a]lthough he asserts his innocence he never puts forth before the Court any defenses that he would articulate or advance during the course of a subsequent trial." He noted defendant's failure to present any specific credible facts to support his claim of innocence and described the application as a bare assertion of innocence occasioned by "a whimsical change of mind for whatever reason." The judge further found defendant had not presented "fair and just reasons for withdrawing" from the plea; noted the plea was pursuant to a plea bargain and concluded the State would suffer prejudice if defendant was permitted to withdraw his guilty plea. Accordingly, the motion to withdraw the guilty plea was denied.

The judge sentenced defendant on the counts in the indictment as follows: twenty years incarceration on the aggravated manslaughter charge (count one); ten years incarceration on the aggravated assault charge (count two); and ten years incarceration on the unlawful possession of a weapon charge (count four). Defendant was sentenced to twenty years incarceration on the one count of the accusation, conspiracy to commit murder. Each of these terms was concurrent to the others and subject to NERA. The remaining counts of the indictment were dismissed.

Defendant filed a direct appeal, which was heard on an excessive sentencing oral argument calendar. We affirmed the judgment of conviction, the sentence and the denial of defendant's motion to withdraw his guilty plea by order dated August 31, 2011.

In August 2012, defendant filed a pro se petition for PCR. Thereafter, PCR counsel filed a brief and exhibits in support of defendant's petition. We have not been provided with a copy of defendant's petition and have only been provided with three of the exhibits which PCR appellate counsel represents were submitted in support of defendant's petition: "a letter sent to [defendant's] co-defendant on the accusation, Tourrie Moses[,] an affidavit executed by Mr. Moses exonerating [defendant,] and a certification signed by [defendant]."

The certification by Moses is dated October 5, 2011, approximately one month after we affirmed defendant's conviction, sentence, and denial of his motion to withdraw his guilty plea. Moses states he was in custody on January 19, 2010, when he was questioned about a murder in Irvington. He stated he decided to lie to get himself out of trouble by using defendant as a scapegoat. He explained

I had a letter that had incriminating words in it that I don't know who sent [it] to me, in certainty I can say it wasn't from [defendant]. I stated it was from him upon being interviewed by Irvington detectives because they said they knew it [was] from him, so I went along and composed lies accordingly hoping it would benefit me, evidently I was involved in a murder I later confessed to. I know nothing about his case, I did not know a witness, to my knowledge it's a female, but I went to kill a rival gang member I had numerous disputes with.

The hand-printed letter included in defendant's appendix is not signed, has no addressee and is undated. No certification has been provided to authenticate it as the letter described by Moses in his certification. A copy of an envelope addressed to Moses, that has not been identified by a certification, is included in defendant's appendix. Although the cancellation on the envelope is partially illegible, it appears to bear a date in December 2009, a time that coincides with the time period when defendant admitted calling Moses, asking him to murder a witness, at the time of his guilty plea.3

In defendant's certification, he states he received a letter from Moses several days after his guilty plea in which Moses admitted he had falsely incriminated defendant. His description of the contents of the letter closely tracks the statement made by Moses in his certification with one notable exception. Moses makes no mention of sending a letter to defendant and closes his October 5, 2011 certification by stating, "I hope it's not too late to straighten out what I did . . . ." This closing statement would appear to contradict defendant's assertion that Moses sent a letter exonerating defendant to him after his June 2010 guilty plea. Defendant states he filed a motion to withdraw his guilty plea the day after receiving this letter and that the letter from Moses was "one of the main reasons" for his doing so. In his certification, he describes his further actions and interaction with his attorney regarding the letter and his motion

3. My attorney at the time came to see me at the County Jail because he had learned from the Prosecutor's Office that I wanted to withdraw my guilty plea. I explained to my attorney why I wanted to withdraw my plea. My attorney expressed that the guilty plea was still my best option given the situation that I was in.

4. At the plea withdrawal hearing, my attorney did not mention the letter from Tourrie Moses that I had received. I did not refer to this letter myself at the hearing because I did not know that it could be used at this time, and my attorney, representing me, did not mention it.

. . . .

12. While prior to the plea withdrawal Motion I had requested that my attorney speak with Tourrie Moses regarding the letter that I had received exonerating me from writing the alleged incriminating letter in Mr. Moses' possession at the time of his arrest, to my knowledge my attorney never met with Mr. Moses or his attorney.

The letter defendant states he received from Moses was not included in support of his petition. Defendant's certification does not assert that the letter was given to his attorney at the time and does not provide any other information as to its disposition or present whereabouts.

Defendant's PCR petition was heard by the judge who had accepted his guilty plea and sentenced him. He denied defendant's petition and set forth his reasons in a written opinion. According to the opinion, defendant argued that counsel was ineffective for failing to make a motion to dismiss the indictment; the grand jury presentation suffered from defects that were prejudicial to defendant; counsel was ineffective for failing to pursue a Wade4 motion; counsel was ineffective in failing to inform the court of the co-defendant's letter exonerating defendant in the second incident; and the State failed to fulfill the terms of the plea agreement. Addressing the contention regarding Moses's letter, the court stated, "the discovery of the letter is not sufficient to meet the burden to withdraw a guilty plea. Thus [defendant's] trial attorney's failure to inform the court of its existence does not amount to ineffective assistance."

Defendant presents the following arguments in his appeal

POINT I

THE PCR COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF MR. BASSIT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED UPON TRIAL COUNSEL'S FAILURE TO ARGUE THAT THE EXCULPATORY LETTER RECEIVED BY MR. BASSIT FOLLOWING HIS GUILTY PLEA PROVIDED A SUFFICIENT BASIS TO RETRACT HIS GUILTY PLEA

POINT II

THE PCR COURT ERRED IN FAILING TO GRANT MR. BASSIT'S POST-SENTENCE MOTION TO RETRACT HIS GUILTY PLEA

In a pro se supplemental brief, defendant argues

DEFENDANT'S COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO INVESTIGATE, AND PRESENT EXCULPATORY EVIDENCE IN SUPPORT OF THIRD-PARTY GUILT DEFENSE, THUS DEPRIVING HIM OF A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE. U.S. CONSTITUTION AMENDMENTS. VI, XIV.

The arguments advanced in Point II and in defendant's pro se supplemental brief lack sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2). The description of the issues raised in defendant's petition did not include the argument now presented as Point II. In his brief, defendant states this argument was raised by PCR counsel at oral argument. Although this issue was not properly raised in a petition, the PCR judge nevertheless addressed it fully and fairly in his written decision. Because the argument raised by defendant in his supplemental pro se brief was not presented to the PCR judge, it is not properly before us in this appeal, State v. Robinson, 200 N.J. 1, 19-20 (2009), and, in any case, lacks merit.

Turning to the argument in Point I, we initially review the standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 52 (l987). A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

As a preliminary matter, we note that, even if defendant's assertion regarding a letter from Moses is given full credence, its exculpatory impact applies only to defendant's guilty plea to the charge in the accusation that he conspired to commit a murder. Defendant's guilty pleas to the charges in the indictment are unaffected and remain intact. Therefore, although defendant does not limit his prayer for relief to the conviction on the conspiracy to murder charge, the issue before us is properly narrowed to the following: whether an ineffective assistance of counsel claim may rest upon an alleged failure to present a letter exonerating defendant in the conspiracy to support a motion to withdraw his guilty plea on that charge.

In denying the petition, the judge focused on the second Strickland/Fritz prong, stating defendant's claim based on this allegation failed because production of the letter would not have been not sufficient to meet defendant's burden to withdraw a guilty plea. That is certainly true regarding defendant's guilty plea to the charges in the indictment. However, we disagree as to the conspiracy charge.

Defendant's certification that he received a letter exonerating him on the conspiracy charge, buttressed by Moses's certification, elevated his motion from one in which there was a "blanket, bald statement" of innocence to one that "rest[ed] on particular, plausible facts." Slater, supra, 198 N.J. at 159. To the extent that the State's case rested upon the unsigned incriminating letter found in Moses's possession, his testimony that defendant was not the writer or involved in his crime, if deemed credible by the jury, had the capacity to fully exonerate defendant.

Under these circumstances, no serious argument can be made that a defense attorney, armed with a letter that exonerated his client, would not use that letter to support an argument for the withdrawal of a guilty plea unless there was a strategic reason for not doing so. The record therefore presents prima facie evidence of the first Strickland/Fritz prong.

Turning to the second prong, we consider the remaining Slater factors in light of the Supreme Court's direction that courts should "exercise their discretion liberally to allow plea withdrawals" in addressing pre-sentencing motions. Id. at 156. Under the second factor, the court considers "the nature and strength of defendant's reasons for withdrawal." Id. at 159. Defendant's stated reason is that the alleged letter from Moses provided him with a viable defense he was unaware of at the time of his plea. The third factor, the existence of a plea bargain, is not given "great weight in the balancing process" because it applies to "the vast majority of criminal cases." Id. at 161. Finally, under factor four, the court should consider whether a plea withdrawal would unfairly prejudice the State. Ibid. "The critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. Although the trial court found this factor present, the State did not identify any prejudice it would suffer at the time it opposed defendant's motion to withdraw his guilty plea.

Balancing these factors, there is a likelihood that defendant's motion would have been granted if defendant's counsel presented an exculpatory letter as described by defendant to support the motion. The record therefore supports a conclusion that defendant has shown prima facie evidence of the second prong of the Strickland/Fritz test.

"If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . ., then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, l58 (1997) (internal citations omitted). In this case, there are significant questions of fact that can be resolved by an evidentiary hearing in which the trial court can assess the credibility of witnesses. Those questions include: whether defendant did receive a letter from Moses prior to his sentencing; the contents of any letter received; the full extent of communications between defendant and his attorney regarding the motion to withdraw the plea, including whether he provided the letter to his attorney, what information defendant provided to his attorney about the letter and Moses; and defense counsel's reasons for failing to contact Moses or use the letter in support of defendant's motion. We therefore conclude that an evidentiary hearing will aid the court's analysis of whether defendant is entitled to post-conviction relief as to his conviction for conspiracy to murder and remand for the court to hold such a hearing limited to that issue.

Affirm in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We derive the facts from the factual basis defendant provided for his guilty pleas.

2 The State also agreed to return items taken from defendant during the investigation after sentencing and, following the plea, to recommend to the jail defendant be removed from administrative segregation and returned to the general prison population.

3 In defendant's certification, he states the postmark "was from a date in December 2009, after the incident date (December 4, 2009) of the second case."

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