STATE OF NEW JERSEY v. LESTER ALFORD

NOT FOR PUBLICATION WITHOUT THE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.

LESTER ALFORD,

Defendant-Appellant.

__________________________________________

April 6, 2016

Submitted February 1, 2016 Decided

Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-08-0839.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lester Alford appeals from the denial of his third application for post-conviction relief (PCR), claiming the PCR court should have granted an evidentiary hearing on his claim the State's plea offer was not communicated to him prior to trial. We affirm.

I.

After a jury trial in 1995, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced to fifty years of incarceration with thirty years of parole ineligibility for the merged first-degree and second-degree offenses and to a concurrent term of five years of incarceration for the third-degree unlawful possession of a weapon charge. Defendant filed an appeal shortly after his conviction, which we affirmed. State v. Alford, No. A-4774-95 (App. Div. March 5, 1999). The Supreme Court denied certification. State v. Alford, 161 N.J. 147 (1999).

Defendant's first petition for PCR was denied in 2001, which we affirmed, State v. Alford, No. A-1351-01 (App. Div. Dec. 19, 2002). His second petition was denied in 2003 and his appeal dismissed in 2005. In his current PCR petition, filed in September 2012 and amended in September 2014, defendant contended he was denied effective assistance of counsel because his attorney allegedly failed to advise him of a plea offer made by the State on September 21, 1994. That plea offer provided that in exchange for a plea to aggravated manslaughter, the State would recommend he serve thirty years of imprisonment subject to a fifteen-year period of parole ineligibility. Defendant contended he first discovered this plea offer on August 29, 2012, when he received a copy of his trial file, in which contained the handwritten plea offer from the assistant prosecutor.

On September 20, 2013, the PCR court denied defendant's petition and request for an evidentiary hearing. In support of his petition, defendant attached copies of log sheets from the attorney who handled his case prior to trial. Those log sheets reflect an entry indicating counsel spoke with defendant for forty-five minutes on January 5, 1995. Counsel also wrote, "Jail visit [defendant] won't take deal unless lower stip time." This was followed by another entry on January 5, 1995, "[telephone conference] AP [ ] re plea." Based upon those entries, the PCR court denied defendant's request for an evidentiary hearing. Specifically, the court was satisfied based upon the logs that defendant had "not given . . . enough information to show that there was a fundamental injustice here. And I'm not satisfied that he has supported his petition extensively enough."

On appeal defendant raises the following points for our consideration

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE PCR PETITION COURT IN ORDER FOR THE PCR PETITION COURT TO MAKE SPECIFIC AND ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE POST-CONVICTION RELIEF CAN BE DENIED ON A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III THE PCR PETITION COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Defendant alleges counsel provided ineffective assistance because "at no time, before, during or after my trial" did counsel inform him of the plea offer. He also contends the plea should have been placed on the record pursuant to Rule 3:9-3.

The State maintains defendant was not denied effective assistance of counsel because the logs rebut defendant's contention the plea was not communicated. The State argues there was no basis in the record to require an evidentiary hearing because a prima facie case of ineffective assistance was not shown by defendant.

II.

An accused has the right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and under Article I, 10 of the New Jersey Constitution. State v. Nash, 212 N.J. 518, 541 (2013); State v. Fritz, 105 N.J. 42, 58 (1987). The petition for PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" Nash, supra, 212 N.J. at 540 (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). To establish a prima facie case of ineffective assistance, defendant must show that counsel made an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Then, defendant also must show that the deficient performance of counsel prejudiced him. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

In State v. Porter, 216 N.J. 343, 355 (2013), the Court observed that "[c]ertain factual questions, 'including those relating to the nature and content of off-the-record conferences between defendant and [the] trial attorney,' are critical to claims of ineffective assistance of counsel and can 'only be resolved by meticulous analysis and weighing of factual allegations, including assessments of credibility.'" Id. at 355 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999))(second alteration in original).

With respect to defendant's claim the State's plea offer was not communicated to him, the Supreme Court of the United States held in Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1408, 182 L. Ed 2d 379, 390 (2012), that "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Not only must a court consider counsel's performance measured against this duty, but the court must consider whether defendant was prejudiced under Strickland. Id. at 1409. Defendant must show a "reasonable probability [he] would have accepted the earlier plea offer" and also that there was the "reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Id. at 1409-10.

It is against this legal framework that this appeal is considered. There is no dispute that defense counsel has a duty to communicate formal offers made by the prosecutor. However, aside from defendant's bald assertion, there is no proof his attorney failed to communicate the plea offer to him. In fact, there is evidence his attorney did so as reflected in the log sheets. We agree with the PCR court that this case is dissimilar to Pyatt, where there were affidavits from defendant's counsel and others to substantiate a plea had not been communicated to the defendant. Here, in denying defendant's PCR application, the PCR court considered the logs defendant submitted and concluded that, given the entry in the logs revealing a forty-five minute consultation with defendant, followed up with counsel's communication with the assistant prosecutor, defendant failed to show the plea offer was never communicated.

Although defendant cites to a subsequent certification by counsel requesting a speedy trial, the absence of any reference to the plea in that certification is irrelevant, given the certification concerned a different issue. The gap in time between September 1994 and January 1995 is not significant either, because it is defendant's position the plea offer was never communicated to him "before, during or after my trial." In the final analysis, the log sheets indicate the plea offer was communicated to defendant, and he failed to rebut this proof with any contrary evidence. Because defendant failed to make a prima facie case of ineffective assistance of counsel under Strickland, there was no basis to have an evidentiary hearing.

We find that any other issues raised by defendant herein lack sufficient merit to warrant a discussion in a written opinion. Rule 2:11-3(e)(1)(E).

Affirmed.