STATE OF NEW JERSEY v. TROY DELAINE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5419-05T45419-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

TROY DELAINE,

Defendant-Appellant.

_________________________________________

 

Submitted December 12, 2007 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 01-04-1143 and 01-06-1949.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Troy DeLaine appeals from the March 24, 2006 order denying his petition for post-conviction relief (PCR) in which he alleged that there was insufficient proof to support his guilty plea to second-degree eluding and that he received ineffective assistance of trial counsel. We affirm.

Defendant was charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count 1), second-degree resisting arrest/eluding, N.J.S.A. 2C:29-2(b) (Count 2); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count 3), under Indictment Number 1143-04-01 arising out of a March 25, 2001 incident in which defendant failed to stop his motor vehicle after being signaled to do so by an officer traveling behind his vehicle. Under a separate indictment, Indictment Number 1949-06-01, defendant was charged with third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (Count 1); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (Count 2); fourth-degree theft, N.J.S.A. 2C:20-3 (Count 3); third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (Count 4); and fourth-degree unlawful theft or receipt of an ATM card, N.J.S.A 2C:21-6(c) (Count 5). These charges stemmed from defendant taking his wife's credit/ATM card without her permission and using it to withdraw money. This incident took place between March 14-15, 2001, while defendant was living with his wife.

On October 17, 2001, defendant appeared before Judge Samuel D. Natal and entered into a negotiated plea agreement with the State that called for him to enter a retraxit plea of guilty to second-degree eluding, Count 2 of Indictment Number 1143-04, and third-degree fraudulent use of a credit card, Count 4 of Indictment Number 1949-06-01. As part of the agreement, defendant also executed a stipulation confirming his status as a persistent offender and eligibility to be sentenced to an extended term pursuant to N.J.S.A. 2C:44-3(a). In exchange, the State agreed to recommend a fifteen-year sentence with a seven-and-one-half-year period of parole ineligibility on the eluding charge, and a flat, four-year custodial sentence on the fraudulent use of a credit card offense that would run concurrent to the sentence imposed on the eluding charge.

After the terms of the agreement were placed on the record, the court personally questioned defendant to insure that defendant's plea was knowing, voluntary, and made with a full understanding of the nature of the charges and consequences of his plea. Defense counsel next questioned defendant as to the factual basis for each plea.

On November 30, 2001, Judge Natal sentenced defendant to an aggregate fifteen-year custodial sentence with a seven-and-one-half-year period of parole ineligibility. He found, as aggravating factors, the nature and circumstances of the offense and defendant's role in committing the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The judge found as a mitigating factor, applicable only to the eluding charge, the fact that there were "grounds tending to excuse or justify [his] conduct, although failing to establish a defense[,]" N.J.S.A. 2C:44-1(b)(4), namely, the fact that defendant was "under the influence of an intoxicant." The court also found as a mitigating factor defendant's agreement to make restitution, N.J.S.A. 2C:44-1(b)(6), with respect to the ATM/credit card. Appropriate fines and penalties were imposed, and defendant was ordered to pay restitution.

On April 24, 2002, defendant filed an appeal of his sentence. The Appellate Division Excessive Sentence Oral Argument Panel considered the appeal. By order dated December 10, 2002, we affirmed the judgment of the trial court, finding that the "sentence [was] not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984)." New Jersey v. DeLaine, No. A-4469-01T4.

On July 9, 2004, defendant filed a pro se petition for post-conviction relief (PCR). The court subsequently assigned defendant counsel and an amended PCR petition was filed. Judge Natal conducted a hearing on March 24, 2006.

Defendant testified that while he was incarcerated on the eluding and ATM/credit card offenses, two "outside detective agencies" visited him seeking his fingerprints because of additional allegations against him. He refused to submit to fingerprinting or to speak with the individuals in the absence of an attorney. The next day, he was taken to court for what he thought was a bail hearing, but that turned out to be a follow-up of the fingerprinting encounter from the previous day. Defendant indicated that the judge presiding over the matter told him he did not need a lawyer and ordered him to submit to the fingerprinting. Defendant reported the incident to his trial counsel and asked her "how could she let [his] liberty interests go unprotected," to which trial counsel reportedly responded, "oh, it don't matter because they're going to find you guilty, anyway." Defendant stated that from that point, he felt that trial counsel was ineffective and he started submitting his own motions to the court.

In addition to defendant's testimony, his PCR attorney argued (1) that the factual basis for the plea elicited from defendant did not establish that defendant's eluding conduct posed a risk of death or injury, an essential element of the offense, and (2) that defendant was denied effective assistance of counsel because his trial counsel failed to adequately investigate defendant's charges, forced defendant to plead guilty, and failed to "vigorously" advance mitigating factors.

At the conclusion of the hearing, Judge Natal denied PCR relief. In an oral decision from the bench, the judge rejected all of defendant's arguments.

In finding that defendant's proofs failed to satisfy the two-prong test, Judge Natal first noted that the argument defendant was forced to provide fingerprints in an unrelated matter was raised for the first time at the PCR hearing. The court pointed out that at the time the fingerprints were sought, defendant was already being held on the eluding and ATM/credit card charges and, therefore, there were fingerprints of defendant on file. Additionally, Judge Natal indicated that no new charges were filed as result of this new fingerprinting. The judge stated further that he knew of no law "that finds that the forcing of giving fingerprints is a violation of defendant's Constitutional rights and, inasmuch as it was not connected to this case, would have no bearing on this mater, either." Second, the court noted that defendant, as part of his PCR petition, "failed to present any affidavits or certifications from any witnesses he claims counsel should have called, let alone identify any of these witnesses, nor does the defendant reveal what motions counsel should have filed or what defenses should have been pursued." Third, the court recalled that defendant retracted his not guilty plea on the day scheduled for trial and that defendant told the court he did not want to go to trial and had no witnesses. Fourth, the court also observed that defendant failed to submit any affidavits or reports from any expert rendering any opinion that defendant's level of intoxication at the time he eluded police was to such a degree that he lacked the requisite mental state to have committed the offense. Likewise, the court found that defendant's papers in support of PCR "fail[ed] to articulate any basis for counsel to have pursued any particular defense and [could not] show counsel's performance was deficient in this regard."

Judge Natal also rejected defendant's claim that his trial counsel should have sought dismissal or a downgrade of the credit card offense after his wife wrote to the court requesting dismissal of the charge. The court explained that her wishes did not control the ultimate disposition of the charge and, citing In Re Friedland, 59 N.J. 209, 218 (1971) and State v. Conway, 193 N.J. Super. 133, 147 (App. Div. 1984), stated that "private interests of an alleged victim of a crime are not necessarily greater than those of the public." Moreover, the court noted that the disparity between the sentence defendant actually received and the maximum sentence he could have received "show[ed] he certainly benefitted from [trial] counsel's professional assistance."

On the eluding charge, the court noted that defendant, during questioning on the factual basis for the plea, acknowledged that he was driving in a residential area at speeds of up to seventy miles per hour. Additionally, in response to the question from the court as to whether the manner in which he drove his vehicle created a risk of death or injury to another person, the court noted that defendant responded, "Yes, sir[,]" thus, negating any claim that the State failed to establish all the requisite elements of second-degree eluding at the time the plea was taken.

On appeal, defendant, through appellate counsel, raises the following points for our consideration:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE BY FAILING TO CONDUCT ADEQUATE CONSULTATION WITH DEFENDANT AND INVESTIGATION OF HIS MATTERS.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS NOT ALLOWED TO ACT AS CO-COUNSEL.

Additionally, the following points were raised in defendant's pro se supplemental brief:

POINT I

TRIAL COUNSEL FAILED TO ARTICULATE THE MITIGATING FACTORS TO THE COURT[][.] THEREFORE DEFENDANT'S CONVICTION MUST BE REVERSED.

POINT II

TRIAL COUNSEL SHOULD HAVE HAD DEFENDANT'S SECOND[-]DEGREE ELUDING CHARGE DISMISSED BECAUSE DEFENDANT[']S CONDUCT DID NOT CREATE A RISK OF DEATH OR INJURY TO ANY PERSONS[,] SO CHARGE MUST BE VACATED.

POINT III

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE FIFTEEN[-]YEAR TERM WITH SEVEN YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT[']S CONVICTION FOR SECOND[-]DEGREE ELUDING WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOWED CAPRICIOUSNESS IN THE SENTENCE.

POINT IV

DEFENDANT CONTENDS THAT HIS CONVICTION SHOULD BE REVERSED DUE TO THE FACT THAT HIS CONSTITUTIONAL RIGHTS TO BE PROTECTED AGAINST ARBITRARY AND MALICIOUS PROSECUTION WERE NOT PROTECTED THROUGH UNWARRANTED SENTENCING PROCEEDINGS AND DISPARITY BY SENTENCING DEFENDANT TO A PERIOD OF INCARCERATION GREATER THAN WHAT THE STATE LAWS AUTHORIZE[] ON THE BASIS OF THE VERDICT ALONE.

POINT V

DEFENDANT'S CONVICTION MUST BE REVERSED AND VACATED DUE TO A DIRECT VIOLATION OF HIS DUE PROCESS RIGHTS TO GO UNPROTECTED AND UNETHICAL ABUSE OF DISCRETION BY JUDGE FOR NOT ALLOWING ME TO BE GUARANTEED THE RIGHT TO COUNSEL AT CRIMINAL PROCEEDINGS AND COURT ORDER WAS MADE AND ENFORCED IN COUNSEL'S ABSENTIA.

POINT VI

DEFENDANT'S CONVICTION MUST BE VACATED AND REVERSED DUE TO THE FAILURE OF THE STATE TO UPHOLD THE CONFRONTATION CLAUSE AND THE RIGHT TO CROSS-EXAMINE WITNESSES[] AND ACCUS[]ERS.

After analyzing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Natal in his oral opinion delivered on March 24, 2006. We add the following comments.

We consider defendant's claims in light of the well-settled principles articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52-58 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing (1) that counsel's performance was seriously deficient and (2) that the defect in performance prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002).

We are satisfied, from our review of the record, that defendant has failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Based on defendant's firm, direct responses to the court's questions during the colloquy at trial, we are convinced, as was Judge Natal, that defendant's decision to plead guilty to the two charges was made knowingly and voluntarily and with a full understanding of the nature of the charges, as well as the consequences of pleading guilty. Additionally, the record supports the judge's conclusion that there was an adequate factual basis for the plea given in connection with both offenses and the court's finding that defendant failed to proffer any evidence objectively establishing that trial counsel's representation fell below an objectively reasonable standard of performance.

Affirmed.

 

At the time defendant executed the plea agreement, he had nine prior indictable convictions.

(continued)

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11

A-5419-05T4

April 7, 2008