STATE OF NEW JERSEY v. ANTONIO BELL-WINTERS

NOT FOR PUBLICATION WITHOUT THE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.

ANTONIO BELL-WINTERS,

a/k/a ANTONIO WINTERS,

Defendant-Appellant.

________________________________

June 5, 2015

Submitted May 11, 2015 - Decided

Before Judges Sabatino and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0756.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, who pled guilty in 2008 to aggravated manslaughter, appeals the trial court's September 17, 2013 order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing.

Defendant claims ineffective assistance of his plea counsel. In essence, he claims that he was provided with incorrect advice by his plea counsel concerning his likely sentencing exposure. He claims that he relied on that misadvice to his detriment, receiving a substantially longer custodial term than his plea counsel had led him to believe was anticipated.

The pertinent background is as follows. Defendant was charged by an Atlantic County grand jury with murder and several other related offenses. The State contended that defendant fatally shot the victim in Atlantic City on November 24, 2006, following an argument over his dating relationship with the victim's former girlfriend.

Defendant's plea counsel and the State negotiated a plea agreement, in which the State agreed to downgrade the murder charge to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), which carries a range of ten to thirty years of imprisonment. See N.J.S.A. 2C:11-4(c). The State further agreed to recommend that the sentence not exceed twenty-two years, with defendant free to argue for the minimum term at sentencing.

These terms were memorialized in the written plea form and also were placed on the record at the plea hearing on September 12, 2008. During the course of the colloquy, the judge explained to defendant that the plea agreement called for a recommendation subject to the court's discretion, with a cap of twenty-two years. The judge also explained that the sentence would be subject to an eighty-five percent parole ineligibility period under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The judge did not specifically mention on the record that the sentencing range for first-degree aggravated manslaughter was ten to thirty years.

According to defendant's certification filed in support of his PCR petition, his plea counsel "told me specifically that the judge was going to sentence me to a period of 15 or 16 years." Defendant claimed that his counsel had told him that such a sentence would have been supported by the fact that he had "a minor adult record," that the victim had punched him in the face before the shooting, and that defendant himself had previously been the victim of a drive-by shooting. Defendant further attested that had he known that "the judge would give me anything over the [anticipated] 15 or 16 years, I would have never entered into the plea agreement."

To corroborate this alleged advice from his plea counsel, defendant points to an October 6, 2008 letter1 from plea counsel to defendant's mother, in which the lawyer explains the consequences of the guilty plea and the likely sentence. In that letter, plea counsel states that "the [j]udge would be free to impose a sentence between 10 to 30 years, 85%; at a subsequent conference with Judge Connor, he advised that he was inclined to impose a sentence in the mid range."

On the next page of the letter, plea counsel further states that "while the [j]udge is free to impose any sentence between 10 [to] 22 years (85% without parole), based on the facts of the case, the [j]udge's comments, and [defendant's] background, I fully anticipate that the [j]udge will abide by his representations and impose a sentence at the mid range or less." (Emphasis added).

At the sentencing on October 17, 2008, the trial court imposed a twenty-year sentence, which is the midpoint of the range between ten years and thirty years. The eighty-five percent NERA parole disqualifier was also imposed, consistent with the statute.

Defendant appealed his sentence, without briefing, pursuant to the excessive sentencing oral argument calendar ("SOA") program. In an order dated May 12, 2010, we rejected his claim of excessiveness, despite arguments by SOA counsel that defendant might have had a viable self-defense claim if he had gone to trial.

Defendant then pursued the present PCR application, which the trial court denied in a letter opinion. Although the PCR judge found that defendant's petition was timely, he was unpersuaded that an evidentiary hearing was necessary.

In his brief on the present appeal, defendant argues

ALTHOUGH THERE WAS A PLEA BARGAIN WITH THE STATE THAT CALLED FOR A SENTENCE NOT TO EXCEED 22 YEARS IN PRISON WITH 85%, THERE WAS ANOTHER AGREEMENT WITH THE COURT IN[] WHICH PETITIONER WAS PROMISED A SENTENCE IN THE MID-RANGE. WHILE PETITIONER'S ATTORNEY REPRESENTED THAT THE SENTENCE WOULD BE BETWEEN 15 TO 16 YEARS, THE COURT IMPOSED A SENTENCE OF 20 YEARS. DUE TO THIS MISUNDERSTANDING BETWEEN THE COURT AND COUNSEL AND PETITIONER AND HIS LAWYER, AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD. THE ENTRY OF THIS GUILTY PLEA CONSTITUTES A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

Having considered this argument in light of the present state of the record and the applicable law, we remand for an evidentiary hearing.

A criminal defendant's constitutional right to the effective assistance of counsel includes the right to adequate legal advice. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Allah, 170 N.J. 269, 283 (2002). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). Defendant must show (1) that his trial attorney's representation in connection with plea offers or discussions was inadequate, and (2) a "reasonable probability" that the result would have been different had he received proper advice from his attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. 2068, 80 L. Ed. 2d at 698).

These principles have been applied by the courts of our state where, for example, a defendant asserts that he was provided with incorrect advice by his counsel. See, e.g., State v. Nu ez-Vald z, 200 N.J. 129, 142-43 (2009) (involving claims of misadvice concerning the deportation consequences of a conviction).

Here, defendant has raised his claims of plea counsel's ineffectiveness through a PCR petition. PCR is a "defendant's last chance" in our state courts to contest the validity and fairness of a judgment of conviction. State v. Nash, 212 N.J. 518, 540 (2013).

In order to obtain an evidentiary hearing on a PCR application based upon ineffective assistance claims, a defendant must make a prima facie showing of deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992). "When determining the propriety of conducting an evidentiary hearing, the PCR court should view the facts in the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)); see also Preciose, supra, 129 N.J. at 462-63.

The Court recently reaffirmed and applied these well-settled principles in remanding a PCR matter for an evidentiary hearing where the factual record bearing on the application warranted further factual development. See State v. Pierre-Louis, 216 N.J. 577 (2014). Viewing the record in a light most favorable to defendant, we conclude that a remand to the trial court for an evidentiary hearing is likewise appropriate here. Defendant's certification, buttressed by his plea counsel's letter, raises a genuine factual issue that he may have received misadvice about the likely sentence he would receive.

Notably, fifteen or sixteen years is essentially the midpoint of a sentencing range calculated from the ten-year statutory minimum to the twenty-two-year cap agreed upon by the State. As illustrated by the arguably ambiguous phrasing of plea counsel's letter, counsel might have caused a misunderstanding by defendant and a belief that the likely sentence would be in the "mid-range" of ten to twenty-two years, rather than the mid-range of the ten to thirty year statutory range.

An evidentiary hearing at which we presume plea counsel and possibly defendant himself might testify would give the trial court a chance to explore this alleged misunderstanding. The trial court would then be in a position to make credibility findings about defendant's claims of misadvice.

On remand the PCR court will need to address whether defendant can carry his separate burden and prove that he would have declined the plea offer. Even if the court finds that plea counsel's performance was deficient, defendant would also bear the significant burden of proving that there was a "reasonable probability" that he would have declined the plea offer if he had received more accurate advice about his exposure. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384-85, 182 L. Ed. 2d at 407. In that regard, the PCR court should consider defendant's testimony at the plea hearing and determine if anything communicated thereafter by his trial counsel made it reasonably probable that defendant would seek to withdraw his plea and whether defendant had grounds for such a plea withdrawal. Furthermore, as part of that showing, defendant would need to persuade the PCR judge that he would have taken the risk of going to trial on a murder charge and the other counts of the indictment, despite the more severe sentence he would have surely faced if he were convicted.

To set aside a guilty plea, a defendant must show "'(i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases"; and (ii) "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."'" Nu ez-Vald z, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). In other words, the defendant must show that not pleading guilty would have been "rational under the circumstances." State v. Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).

In this case defendant is essentially seeking to withdraw his guilty plea based on what his counsel told him, apparently after he pled guilty. Therefore, on remand if the facts show that defendant is relying on what his counsel told him after he pled guilty, then the PCR court should also consider as part of its analysis if there is any prejudice to the State, and the extent and significance of that prejudice. See State v. Slater, 198 N.J. 145, 162 (2009).

Remanded for an evidentiary hearing. We do not retain jurisdiction.

1 The PCR judge notes in his written opinion that he was not supplied with a copy of the letter, although it was discussed in the submissions to him.