STATE OF NEW JERSEY v. WILLIAM O. HUDSPETH

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM O. HUDSPETH,

Defendant-Appellant.

____________________________________________

May 20, 2015

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-02-0234.

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

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant William Hudspeth appeals from the denial of his petition for post-conviction relief (PCR). Defendant argues the PCR judge erred by denying the petition on procedural grounds and he was denied effective assistance of counsel. He also contends the court erred by not affording him an evidentiary hearing. We disagree and affirm.

On March 5, 2009, an Essex County Grand Jury returned four-count Indictment No. 09-02-0234, charging defendant with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), count one; unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), count two; fourth-degree possession of a prescription legend drug, N.J.S.A. 2C:35-10.5(e)(2), count three; and fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a), count four.

On August 30, 2010, defendant pled guilty, pursuant to a negotiated plea agreement, to count two of the indictment. On January 18, 2011, represented by a different attorney, defendant made a motion to withdraw his guilty plea, which was denied. On January 24, defendant was sentenced to a six-year term of incarceration with three years of parole ineligibility. In accordance with the plea agreement, all other counts of the indictment were dismissed.

In June 2011, defendant filed a notice of appeal. In January 2012, on our excessive sentencing calendar, we entered an order determining that the trial judge did not err in denying defendant's motion to withdraw his guilty plea. We further concluded defendant's sentence was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. Hudspeth, No. A-5388-10 (App. Div. Jan. 11, 2012).

Defendant filed his PCR petition on May 15, 2012. Defendant argued before the PCR court that he received ineffective assistance of counsel because he was pressured by his counsel into pleading guilty. He contended he wanted to pursue pre-trial motions, proceed to trial and challenge the evidence against him.

On February 11, 2013, following oral argument, the PCR judge issued an order, accompanied by a comprehensive fifteen-page written opinion, denying defendant's petition in its entirety. The PCR judge determined defendant's "post-conviction relief petition is really an attempt to reargue the Motion to Withdraw the Guilty Plea," and, therefore, procedurally barred. R. 3:22-5. The judge perceptively noted defendant's "arguments on this PCR depend on a finding that Petitioner did not knowingly and voluntarily enter into a guilty plea on August 10, 2010." The PCR judge acknowledged the record demonstrated both we and the trial judge rejected this contention. See R. 3:22-5. The PCR judge further noted the trial judge had concluded "that Mr. Hudspeth's claim of ineffective assistance of counsel has no force. Further, I have to note that the Court hereby finds that Mr. Hudspeth has not demonstrated that counsel's performance was deficient, and that there was any prejudice." The PCR judge concluded defendant cannot re-litigate his claim that plea counsel was ineffective.

After setting forth in his written opinion relevant portions of defendant's plea colloquy, the PCR judge determined "there is no need for an evidentiary hearing, because there is no proof that Petitioner could offer that would allow him to change the testimony that he has already given."

It is from that order that defendant appeals. On appeal, defendant raises the following issues for our consideration

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF HIS GUILTY PLEA WHICH WAS NOT FREELY AND VOLUNTARILY ENTERED, THE TRIAL COURT ERRED IN DENYING HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Robert J. Gilson in his comprehensive opinion. We add the following comments.

Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of 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). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial 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. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.

Rule 3:22-5 provides that a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . ." Thus, the application of this standard requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (citation and internal quotation marks omitted); see also State v. McQuaid, 147 N.J. 464, 484 (1997).

Defendant's assertion of ineffective assistance of counsel is an attempt to re-litigate his argument raised on direct appeal challenging the denial of his motion to withdraw his guilty plea. Essentially, this claim is substantially equivalent to his argument before the trial court and on direct appeal that his plea was not knowing and voluntary. PCR is not another avenue for a defendant to submit the same arguments stated on direct appeal. See McQuaid, supra, 147 N.J. at 484. Defendant's assertion of ineffective counsel is thus barred by Rule 3:22-5.

Finally, defendant contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 354 (2013) (citing State v. Preciose, 129 N.J. 451, 462 (1992)); R. 3:22-10(b).

Affirmed.