STATE OF NEW JERSEY v. LAKESHA P. JONES

NOT FOR PUBLICATION WITHOUT THE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.

LAKESHA P. JONES,

Defendant-Appellant.

________________________________

July 28, 2016

Submitted February 22, 2016 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 03-03-0159 and 03-03-0160.

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

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lakesha Jones appeals from an order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm in part, reverse in part, and remand.

In 2002 and 2003, defendant, together with Almustafa Baldwin, Alnesha Minitee, and Darnell Bland, committed armed robberies at massage parlors in Bergen, Middlesex, Essex and Somerset counties. They were indicted for first-degree robbery and related offenses in each county.

Defendant's Essex County offenses were the first to be resolved when she pled guilty on October 13, 2004, to third-degree unlawful possession of a weapon.1 She was sentenced to a four-year term of imprisonment.

The Bergen County charges were resolved next when defendant, represented by Mitchell E. Ignatoff, Esquire, was convicted by a jury on April 4, 2005, of first-degree robbery and related offenses. Co-defendant Minitee, represented by Ronald S. Sampson, Esquire, was acquitted. Defendant was sentenced to a twenty-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On November 29, 2005, defendant, represented by Darryl Saunders, Esquire, pled guilty to first-degree robbery and related offenses for the Middlesex County offenses. She was sentenced to a twelve-year prison term subject to NERA.

The Somerset County robberies were the last offenses to be resolved when defendant pled guilty on July 23, 2008, to all counts arising from two separate three-count indictments charging first-degree robbery and related offenses. By that time, she was represented by James N. Barletti, Esquire, due to Ignatoff being earlier relieved as counsel by court order. Minitee had reached a plea agreement for her Somerset County charges and agreed to testify against defendant. In reaching a plea agreement, defendant avoided the more onerous penalty of a mandatory extended term under the Three Strikes Law, N.J.S.A. 2C:43-7.1(b), if convicted at trial. In accordance with the plea agreement, defendant was sentenced on September 19, 2008 to an aggregate prison term of twenty years subject to NERA and was awarded jail credit from June 1, 2005 to the sentencing date. All of defendant's sentences from the four counties were to run concurrently to each other.

Defendant did not file any direct appeals, but on or about June 17, 2013, filed a pro se petition for PCR based upon a claim of ineffective assistance of counsel (IAC). She was subsequently assigned counsel. At oral argument on May 7, 2014, defendant argued that: (1) Sampson's representation of Minitee was a conflict of interest because he previously represented defendant in an unrelated criminal matter and was representing her in a pending civil matter; (2) counsel failed to advise her she was entitled to additional jail credits; (3) counsel failed to argue for mitigating factors at sentencing; (4) she was entitled to have her guilty plea withdrawn pursuant to State v. Slater, 198 N.J. 145, 157-58 (2009); and (5) counsel failed to advise her of the State's initial plea offer of a twelve-year prison term subject to NERA.

The last contention was not presented until PCR counsel asserted, based upon defendant's contemporaneous comment to counsel during oral argument, that defendant's original trial counsel failed to advise her of the State's initial plea offer. There was no affidavit or certification attesting to an initial plea offer. The State immediately denied the existence of any such offer but indicated it would review its files to verify that fact. In response, the PCR court stated that it would reserve decision until the State turned over any relevant documents to the court and PCR counsel. However, there is no indication in the record that the State provided any documents, or advised the court or PCR counsel that its files did not contain any documents reflecting an initial plea offer of a prison term less than the agreed upon twenty years subject to NERA.

The court issued its written decision dated June 17, 2014, and entered an order on July 31, 2014, denying defendant an evidentiary hearing and dismissing her PCR petition.2 The court rejected defendant's claim that Sampson's representation of defendant in a prior criminal matter and a pending civil matter was a conflict of interest constituting IAC. The court found that even if Sampson should not have represented Minitee pursuant to Rule 1.9(a) of the Rules of Professional Conduct (RPC),3 there was no evidence that his representation prejudiced defendant as required by the second prong of Strickland4 because he died on July 7, 2006, before defendant pled guilty. The judge reasoned that

[t]here is no reason to believe that [defendant] would not have pled guilty to the instant offenses had she been aware of this alleged conflict. . . . At the time of the [defendant's] guilty plea, [Sampson] had been deceased for a year[5], [Ignatoff] had not represented her for two years and [Barletti] was [] advocating zealously on her behalf.

With respect to defendant's claim that she was entitled to jail credits prior to June 1, 2005, the court determined the assertion was barred by Rule 3:22-4 because she failed to raise the issue in a direct appeal and her reliance on State v. Hernandez, 208 N.J. 24 (2011), was "unfounded, as the Supreme Court held that its opinion applied only prospectively to sentences imposed as of June 9, 2011, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by [the] defendant at sentencing." The PCR court also dismissed defendant's contention that counsel was ineffective at sentencing by not arguing: mitigating factor four, defendant's extensive history of drug abuse excused or justified her conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); and mitigating factor eight, due to successful rehabilitation her conduct was unlikely to recur, N.J.S.A. 2C: 44-1(b)(8).

Lastly, the court rejected defendant's motion to withdraw her guilty plea based upon the aforementioned alleged deficiencies of counsel. The judge found that none of the four factors set forth in Slater, supra, 198 N.J. at 157-58, applied. The court ruled

[w]hile the [defendant] may have asserted a colorable claim of innocence, the nature and strength of the reasons for withdrawal are very weak, as noted in the evaluation of the [defendant's] ineffective assistance of counsel claims. The [c]ourt finds that there was a plea bargain in place, and as noted by the State, a very generous one at that. The [c]ourt also finds that a withdrawal of the [defendant's] guilty plea would result in unfair prejudice to the State, as it would have to put on witnesses, whose memories of the events may have faded, thus weakening their case.

The court's decision did not address defendant's argument that she was not advised of the State's initial plea offer or the State's intended review of its files to verify defendant's assertion of the offer. This appeal followed.

Defendant contends in a single point

THIS COURT MUST REVERSE THE PCR COURT'S ORDER AND REMAND THIS CASE BACK TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL [,] OR ALTERNATIVELY, THE COURT MUST DIRECT THE PCR COURT TO AMEND THE JUDGMENT OF CONVICTION TO INCLUDE JAIL TIME CREDIT FROM JULY 11, 2 003 TO SEPTEMBER 19, 2008.

On appeal, defendant reiterates the arguments made to the PCR court, except the claim that her guilty plea should have been withdrawn under Slater.6 Defendant contends that Sampson had a conflict of interest in representing Minitee, who was required to testify against defendant based upon Minitee's plea agreement in the Somerset County offenses. She contends that trial counsel failed to argue for mitigating factors four and eight at sentencing. Defendant also argues that she was entitled to receive jail credit under Hernandez going back to when she was incarcerated in Somerset County on July 11, 2003. In addition, she contends that counsel failed to advise her that the State initially offered a plea agreement whereby it would recommend she serve a twelve-year prison term subject to NERA, instead of the later agreed-upon twenty-year sentence subject to NERA. Further, defendant maintains that the court should have allowed her to amend her petition based upon "the newly discovered evidence" of an initial plea offer, or alternatively, conduct an evidentiary hearing on whether there was an initial offer.

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Ibid. (quoting Fritz, supra, 105 N.J. at 52). In considering IAC claims concerning a guilty plea, defendant must satisfy a modified Strickland standard

When a guilty plea is part of the equation, . . . "a defendant must show that (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."

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (citations omitted) (second alteration in original)).]

Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1001 (2000)).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing State v. Preciose, 129 N.J. 451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).

We find merit to defendant's claim under RPC 1.9 that Sampson had a conflict of interest. He previously represented defendant in an unrelated criminal matter and was handling a pending civil suit for her, and should not have been representing Minitee absent written consent from defendant. However, we agree with the PCR judge that such representation did not prejudice defendant at the time she entered her plea. Sampson had passed away two years before defendant pled guilty. Defendant presents no facts which even remotely suggest that Sampson's prior representation had any prejudicial effect on defendant's decision to plead guilty.

We find no merit to defendant's contention that trial counsel failed to argue mitigating factors that her drug addiction caused her to commit the armed robbery and her rehabilitation would have warranted a lesser sentence. Defendant has not shown how these factors would support a reasonable probability that her sentence would have been different had counsel argued for them. There is nothing in the record demonstrating that the sentencing court would have deviated from a negotiated plea agreement and sentenced defendant to a lower term. In fact, the plea agreement was, by any objective analysis, favorable to defendant given her avoidance of a mandatory extended term under the Three Strikes Law. Moreover, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52).

We agree with the PCR court's rejection of defendant's jail credits claim. Defendant's reliance upon Hernandez is misplaced because that decision was reached after her sentencing and does not retroactively apply to her. Hernandez, supra, 208 N.J. at 50-51.

Lastly, we address defendant's argument that counsel failed to advise her of an initial plea offer of twelve years NERA. A defense counsel has an affirmative duty to present any plea offer to his client. RPC 1.2(a); Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 1407, 182 L. Ed. 2d 379, 390 (2012); State v. Barlow, 419 N.J. Super. 527, 535 (App. Div. 2011). Defendant first raised the contention that her trial counsel failed to advise her of the initial offer at oral argument. While there was no affidavit attesting to such initial plea offer, the court decided that it would reserve judgment until the State searched its files and turned over any relevant documents to the court and PCR counsel. Thus, contrary to the State's argument before us, the PCR court determined it would consider defendant's assertion that an initial plea offer with a lesser prison term was not communicated to her.

While it is the defendant's burden to prove her IAC claim through affidavits or certifications, under these circumstances we are constrained to remand. The PCR court stated it would reserve its decision until the State reported on its search for an initial plea offer. However, there is no indication in the record before us that the State did so. The court's decision makes no reference to the initial plea offer argument or the State's review of its files to verify defendant's accusations. Therefore, we remand to the PCR court, where the State shall report the findings of its file review and provide any relevant documents to the court and PCR counsel within thirty days of this decision. The court shall then determine whether an evidentiary hearing is warranted, or issue its specific factual findings and conclusions of law as required by Rule 1:7-4 with respect to defendant's claim that trial counsel was ineffective for not advising her of an initial plea offer.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.

1 The record does not disclose who represented defendant in the Essex County matter.

2 The decision sets forth a date of May 7, 2014, but according to the order, it was written on June 17, 2014. We use the later date given, because during the May 7, 2014 oral argument, the court stated that it was going to reserve decision.

3 "A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing." R.P.C. 1.9(a).

4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

5 It was actually two years and sixteen days.

6 The brief failed to list a table of citation of cases. R. 2:6-2(a)(2).