STATE OF NEW JERSEY v. ROBERT COSME

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT COSME,

Defendant-Appellant.

___________________________________

February 3, 2015

Submitted February 26, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-07-1198 and 08-12-2232.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Stephanie Davis-Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

NUGENT, J.A.D.

Defendant Robert Cosme appeals from an order denying without an evidentiary hearing his petition for post-conviction relief (PCR). He raises two arguments for our consideration

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE GUILTY PLEA HE ENTERED WITH RESPECT TO INDICTMENT NO. 08-12-2232-I WAS NOT DONE FREELY AND VOLUNTARILY, BUT RATHER RESULTED FROM COERCION.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL.

Defendant has filed a supplemental pro se brief augmenting counsel's arguments. Although the defendant has not included point headings in his pro se brief, he appears to raise the following arguments: his PCR petition was not procedurally barred; he was denied his right to effective assistance of counsel due to a conflict of interest; trial counsel failed to conduct an adequate investigation; his guilty plea was not voluntarily and knowingly made; his guilty plea lacked a sufficient basis; and trial counsel ignored defendant's "repeated request to file evidentiary motions before the court on his behalf." We affirm.

A Hudson County grand jury charged defendant in a ten-count indictment with attempted murder, four counts of aggravated assault, two counts of endangering an injured victim, and three weapons offenses. Defendant pled guilty to one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). In exchange, the State agreed to dismiss the remaining charges and recommend a nine-year custodial term with an eighty-five percent parole disqualifier.1 The court subsequently sentenced defendant in accordance with the plea agreement and the State's recommendation.

Defendant appealed his sentence. We heard the appeal on a sentencing calendar pursuant to Rule 2:9-11 and affirmed the sentence. Five months later, defendant filed the PCR petition that is the subject of this appeal. In a supporting certification, defendant claimed, as he does now, that he was "not properly, or effectively represented by my attorney during the pretrial preparation process, and during my trial[.]" The court denied defendant's petition as well as his request for a hearing.

These are the facts. When defendant and his attorney appeared in court on the day defendant pled guilty, defense counsel informed the court that defendant had "some legitimate grievances with me as counsel." Counsel explained, however, that defendant's "concerns" were related to the timing and prison term of the State's plea offer. The proceeding took place on a Friday. Counsel explained that the previous Friday he had received a plea offer from the State for "ten with an eighty-five percent and that was only going to be kept open [for one week]." Counsel further explained that the plea offer had been faxed to his office late in the day and that he didn't see it until he went into his office on Monday. On Tuesday, he visited his client, who was very concerned about the eighty-five percent parole disqualifier.

Defense counsel further explained to the court that he had just received an offer from the State of a nine-year custodial term with an eighty-five percent parole disqualifier; that defendant did not want to accept that offer; and that defendant felt that counsel was "not looking out for his best interest." Counsel stated, "whether I am or am not, . . . if he doesn't believe in me, I have failed him, if he doesn't have confidence in me."

Defendant addressed the court and explained that he did not think it was fair that he be given twenty-four hours to make a decision that would affect him and his family for the rest of their lives.

The court explained to the defendant that it was not his attorney, but the prosecutor, who controlled the plea offer. The court also explained that the State had the right to revoke the offer if it was not accepted by the end of the day.

The prosecutor confirmed that when the proceeding ended that day, "that offer is no longer out on the table." When defendant complained that he only had twenty-four hours to decide, the court responded, "[n]o, you actually have five minutes. You actually have five minutes, because once this proceeding is over, they're saying they're withdrawing the offer. [Do] you want five minutes to talk about it?"

When defense counsel asked if the court would permit defendant to speak with family members who were present, the court said it would normally do so but because the courtroom was crowded and there were not enough sheriff's officers to accommodate defendant's request, the court could not "set it up for [defendant] to communicate with them." Following a short recess, defendant accepted the State's plea offer.

The court questioned defendant to assure that he was voluntarily pleading guilty and that there was a factual basis for the plea. Defendant admitted that he committed the offense. He explained that after becoming involved in an altercation with other people, he got into his truck and ran over or "hit [the victim] with [his] truck[.]" Defendant acknowledged that, though he was in an altercation, when he "jumped into [his] truck [and he] . . . raised the level, [he] went above and beyond the necessary force that was needed to stop the altercation[.]"

Three months later, when defendant appeared for sentencing, the court announced that it was inclined to reject the plea offer. The court explained that the account of the incident defendant had given in the pre-sentence report raised a claim of self-defense. The prosecutor also expressed her concern based on the account defendant had given in the pre-sentence report, and she told the court, "I'm not even comfortable putting this plea through. I'm pulling back the plea." The court then stated that it was declining to accept the plea because it found defendant "has argued a self-defense claim[.]"

Defense counsel implored the court to accept the plea because his client "wants to accept the plea." Defendant confirmed that he wished to accept the plea. Defense counsel then elicited sworn testimony from defendant. Defendant acknowledged that he was able to flee from the altercation and get into his truck. He also acknowledged that when he drove into the victim and then reversed toward "the rest of the crowd," he went "past anything [he] had a legal right to do[.]" Lastly, defendant confirmed that he had spoken to counsel at length about self-defense even before the prosecutor had made a plea offer. Counsel had explained that going to trial was a very dangerous risk because, in counsel's opinion, self-defense was not viable because defendant was "in [his] car and struck somebody deliberately."

In response to the court's questions, defendant repeated that he intentionally struck the victim with the truck and then drove the truck in such a manner that it was foreseeable that anybody "around there could have gotten injured and, in fact, someone did[.]" The court then questioned defendant to assure that nobody was forcing him to clear up the statements he had made in the pre-sentence report and that he was doing so freely and voluntarily. Defendant confirmed that he did not want to go to trial, wished to accept the plea, and wished "to be sentenced according to the plea offer, or less, if the [court] is so inclined[.]" The court then sentenced defendant in accordance with the plea agreement.

Based on the foregoing facts, defendant claims his trial counsel did not represent him effectively and that the court that denied his PCR petition erred by ruling to the contrary. We reject defendant's claim.

To prove a claim that counsel was ineffective, a defendant must establish that "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); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

To set aside a guilty plea based on ineffective assistance of counsel, a 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.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Defendant has established a prima facie case of neither of the two Strickland elements necessary to prove an ineffective-assistance-of-counsel claim. In fact, the crux of the first argument in his initial brief is that he pled guilty under duress because he had inadequate time to evaluate the State's plea offer. His argument is based on the State making the offer on the day he appeared in court and threatening to withdraw it at the close of the proceedings that day. He also claims the court further coerced him by telling him he had not twenty-four hours, but only five minutes to accept or reject the plea, and by refusing to let him speak with his family. Defendant's counsel was not responsible for the conduct of either the State or the court.

More significantly, in the three months between entering his guilty plea and appearing in court for sentencing, defendant had more than ample time to discuss the plea with his attorney, his family, or anyone else with whom he chose to do so. He also had ample time to move to withdraw the plea. Instead, when he appeared for sentencing and the judge and prosecutor expressed their unwillingness to accept the plea because of defendant's account of the incident in a pre-sentence report, defendant and his counsel convinced the court to accept the plea. The ensuing colloquy demonstrates that defendant knowingly and voluntarily pled guilty. Considering those circumstances, defendant's argument that he was coerced into accepting the plea, and that somehow his counsel was ineffective, is entirely unpersuasive.

In the second point of his initial brief, defendant argues that his appellate counsel "failed to adequately represent him, in part, by failing to raise any mitigating factors on his behalf." He asserts that had "appellate counsel properly represented [his] interests on appeal, and had he successfully convinced the panel the trial court had failed to take into account several mitigating factors, the outcome of the sentencing appeal would have been different." We disagree.

The Strickland standard for ineffective assistance of counsel applies not only to a claim that trial counsel was ineffective, but also to a claim that appellate counsel was ineffective. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Even if we assume that defendant satisfies the first Strickland prong by reason of appellate counsel's failing to argue mitigating factors on appeal, there is no reasonable probability that the outcome of the appeal would have been different. Defendant had accepted a negotiated plea. As the PCR court explained, "[g]iven [p]etitioner's record and frequency with which he dealt with the criminal system, the sentence was favorable. We agree with that conclusion. We discern nothing about the mitigating factors that would have altered the appellate panel's conclusion that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." State v. Cosme, No. A-5867-09 (May 5, 2011 order).

Having considered the arguments raised by defendant in his supplemental pro se brief we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 On the same day, before another judge, defendant pled guilty to one count of a separate seventeen-count indictment, No. 08-07-1198: first-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and b(1), for which the court sentenced him to a ten-year custodial term with four years of parole ineligibility, the sentence to run concurrent to his sentence on the aggravated assault charge that is the subject of Indictment No. 08-12-2232 and the point headings in defendant's initial brief.