STATE OF NEW JERSEY v. DALE DISNEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0103-04T40103-04T4

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

DALE DISNEY,

Defendant-Appellant.

________________________________

 

Submitted November 7, 2005 - Decided January 20, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 00-02-0181.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Dale Disney, appeals from an order of the Law Division entered on September 2, 2004, denying his petition for post-conviction relief (PCR) after an evidentiary hearing. For reasons expressed, we affirm.

By Indictment No. 00-02-0181, defendant was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (Count One); first-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9a and 2C:15-1 (Count Two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Six); and two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts Seven and Eight).

By Indictment No. 00-09-1101, defendant was charged with third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 (Count One); second-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9a and 2C:18-2 (Count Two); two counts of third-degree burglary, N.J.S.A. 2C:18-2 (Counts Three and Five); and two counts of third-degree theft, N.J.S.A. 2C:20-3 (Counts Four and Six).

By Indictment No. 00-09-1103, defendant was charged with third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 (Count One); second-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9a and 2C:18-2 (Count Two); third-degree burglary, N.J.S.A. 2C:18-2 (Count Three); and fourth-degree theft, N.J.S.A. 2C:20-3 (Count Four).

By Indictment No. 00-09-1107, defendant was charged with second-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9a and 2C:18-2 (Count One); five counts of third-degree burglary, N.J.S.A. 2C:18-2 (Counts Two, Four, Six, Seven and Ten); two counts of fourth-degree theft, N.J.S.A. 2C:20-3 (Counts Three and Eight); two counts of fourth-degree unlawful receipt of a credit card, N.J.S.A. 2C:21-6c (Counts Five and Nine); and fourth-degree attempted fraudulent use of a credit card, N.J.S.A. 2C:5-1 and 2C:21-6 (Count Eleven).

On October 30, 2000, defendant entered into a plea agreement before Judge Munkasci. With regard to Indictment Number 00-02-0181, defendant pled guilty to one count of first-degree armed robbery. Defendant also pled guilty to the second-degree use of a juvenile to commit a criminal offense and two counts of third-degree burglary charges from Indictment Number 00-09-1101. Lastly, defendant pled guilty to two third-degree burglary charges from Indictment Number 00-09-1107. In exchange, the State agreed to recommend dismissal of the remaining charges in all indictments. The State also agreed to recommend a ten-year sentence with an 85% parole ineligibility period for the armed robbery count with the other sentences to run concurrent. Lastly, the State agreed to recommend that the sentence be served at the Youth Correctional Institute Complex.

Defendant's sentencing proceeding was held on January 2, 2001, before Judge Munkasci. As to the first-degree armed robbery conviction, defendant was sentenced to ten years with an 85% parole ineligibility period pursuant to the No Early Release Act and five years of parole upon release. The judge recommended that the sentence be served at the Youth Correctional Institute Complex. With respect to Indictment Number 00-09-1101, defendant was sentenced to ten years imprisonment on the conviction of use of a juvenile to commit a criminal offense, and four years on the conviction for burglary, both sentences to run concurrent to each other and concurrent to the ten-year sentence imposed on the first-degree armed robbery conviction. In regard to the convictions from Indictment Number 00-09-1107, defendant was sentenced to four years for each of the burglary counts. Each four year term to run concurrent to the other and to the ten year term imposed on the first-degree armed robbery conviction. All remaining charges were dismissed.

Defendant filed a direct appeal asserting that the sentences were excessive, unduly punitive and an abuse of the trial court's discretion. The appeal was argued on a sentencing calendar pursuant to R. 2:9-11. The judgment of conviction was affirmed by order of December 18, 2001, "without prejudice to an application to the trial court, by January 31, 2002, for relief based on a claim of sentence disparity."

On or about April 24, 2004, defendant filed his petition for post-conviction relief arguing ineffective assistance of trial counsel. Defendant claimed that: 1) counsel had forced him into a guilty plea by not properly investigating the facts or interviewing witnesses in the case; 2) there had been a misunderstanding by defendant of the terms of the negotiated plea; and 3) there was a disparity of sentencing between himself and a juvenile co-defendant, where defendant received a much greater sentence than the co-defendant. On August 20, 2004, an evidentiary hearing regarding defendant's claims was conducted before Judge Mulvihill, at which the defendant, his mother, Maureen Coleman, and trial counsel, Richard Barker, testified.

Defendant's mother testified that she took an active role in her son's defense and that she and her son only had one consultation with attorney Barker prior to her son entering a plea, and that occurred on the date of the plea. Although she heard references to a ten year term during the conference, she testified that attorney Barker had assured her, and her son, that her son would not serve more than seven years in prison. She also testified that neither she, nor her son, saw any discovery concerning the charges until the day of the plea.

Attorney Barker testified that he has been licensed to practice law in New Jersey since 1975, and an assistant public defender of the State since 1989. At time of the hearing, he was the First Assistant Public Defender for the Middlesex County regional office. At time of defendant's plea, Barker was assigned as part of the public defender's team to Judge Munkasci. Although each case is different depending upon the charges and the defendant's background, Barker had a general idea of what was acceptable in terms of plea negotiations to both the judge and prosecutor. Barker testified that the lack of pre-plea conferences was defendant's fault, not his. According to Barker's notes, defendant had three appointments scheduled, but failed to appear; he also missed two court appearances, one of which resulted in defendant being arrested on a bench warrant. Defendant was arrested, and Barker met with him on May 1, 2000, and reviewed discovery with him for about three-quarters of an hour. The conference included a discussion of inculpatory statements that the State had from participants in the crimes, including the defendant's confession. At the meeting on May 1, 2000, Barker discussed with defendant a plea offer of fifteen years that he had received from the State. Barker testified that before he would recommend a fifteen year term, he wanted to review the transcript of the Grand Jury testimony, and he ordered the same. A copy of all discovery was mailed to defendant at his father's house on May 15, 2000, pursuant to defendant's instructions. In the cover letter, Barker "asked him to contact my secretary to make an appointment to see me in the office to review discovery before his June 19, 2000, court date before Judge Munkasci." The last sentence of the letter states: "Please note that I need to see you as soon as possible, and do not wait until June to make an appointment to see me."

Because the plea cutoff date was running, Barker sent another letter to defendant dated June 30, 2000, in which Barker wrote, ". . . it is impossible for me to properly represent you if you are not cooperative. Again, I suggest that you telephone my office and schedule an appointment to see me so that we may discuss your case." Defendant failed to reply. Barker ascertained through defendant's father that defendant had been arrested again and was incarcerated at the Middlesex County Adult Correctional Center on a new charge. Barker had concern that he may not have been informed of all outstanding charges because defendant had other charges pending in Hunterdon County. Barker requested the assistant prosecutor to run a statewide rap sheet so that he could determine all of defendant's outstanding charges and seek to resolve all charges prior to the next court date.

Barker next met with defendant on August 23, 2000, at the Middlesex County jail, and defendant stated that he was interested in pleading guilty and obtaining a five year sentence similar to that which co-defendant Terrell Koontz had received. Barker advised defendant that he should not expect the same sentence as Koontz because of the number of charges and indictments that defendant had pending against him. On October 11, 2000, Barker received a revised plea offer from the assistant prosecutor. On October 16, 2000, Barker met at the courthouse with defendant, his mother, his father, his stepmother and his girlfriend, at which time they discussed the evidence, including defendant's confession, the proposed plea, the effect of the 85% law, and the possibility of consecutive sentences. Defendant's father requested the court proceedings be adjourned for two weeks so the family could talk to another attorney to review the case. On October 30, 2000, Barker met at the Courthouse with defendant, and defendant's mother and father, and defendant advised Barker at that meeting that defendant decided to plea. Barker was informed that they were not able to discuss the case with another attorney in the interim because defendant's father had been out of town on business.

The terms of the plea were set forth on the plea agreement form. Defendant was to receive a ten years flat jail sentence on the charge of armed robbery, with 85% parole ineligibility to be concurrent with an aggregate sentence of ten years flat on the remaining charges. In response to questions by the prosecutor at the PCR hearing concerning how Barker described the duration of the sentence at the time of the plea, Barker responded:

A. How I describe the duration of the sentence?

Q. I don't mean to be cryptic. Let me ask the question a different way. Did you ever tell Mr. Disney he [is] not going to get ten years?

A. No. I told him he would get ten years with eighty-five percent which means that he would have to serve every day of eight and one-half years.

Q. Did you ever tell him that he probably would [not] do any less than seven years?

A. Not with respect to this plea.

Defendant testified that Barker did not investigate any of the charges prior to the plea. He testified that he pled guilty because he was told that he would receive forty-five years if he had gone to trial. When asked if he had discussed the jail time he was going to receive prior to signing the plea agreement form, defendant responded: "I was offered ten but I was really . . . nervous. I didn't want to take it, but I was told that I'd be sentenced under the presumption of a second-degree crime which I [defendant] believe was seven years." On the issue of sentencing disparity, defendant claimed that juvenile Koontz had the gun used in the robbery, and was sentenced to five years, while defendant had only been accused of possessing a baseball bat and received ten years.

Judge Mulvihill found that defendant and his mother lacked credibility while attorney Barker was credible. Judge Mulvihill also determined that the lack of communications claimed by defendant was caused by defendant. The judge found it incredible that defendant thought he would only receive seven years because when defendant's plea was taken: 1) defendant read and signed the plea agreement; and 2) the judge inquired if defendant understood that it was ten years, and defendant answered in the affirmative. The transcript of the plea proceedings, disclose the following colloquy between Judge Munkacsi and defendant:

Q: And do you (defendant) understand first of all that because of your plea of guilty to this first-degree armed robbery, you will be required to serve 85% of that ten-year sentence that [is] anticipated to be imposed?

A: Yes.

Q: Before you will be eligible for parole?

A: Yeah.

Q: Do you understand also that because this is a first-degree offense that the statute requires that I impose a five- year term of parole supervision that begins as you are released from incarceration?

A: Yeah.

Q: Do you have any questions about that?

A: No.

Finally, the judge found the sentencing disparity justified because Koontz was a juvenile at the time of the crime, and defendant was an adult with multiple charges.

On appeal, defendant argues:

POINT ONE.

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO.

THE POST-CONVICTION RELIEF COURT ERRED IN FIND[ING] THAT DEFENDANT FAILED TO DEMONSTRATE THAT HIS SENTENCE WAS ILLEGAL.

Defendant's primary argument is that he was denied effective assistance of counsel during the plea bargain stage of the criminal proceeding. For reasons expressed, we disagree.

Plea bargaining is a critical stage of a criminal proceeding at which the right to effective assistance of counsel attaches. State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996) (citing United States v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992), aff'd o.b. 998 F.2d 1005 (3d Cir. 1993)).

The standard for evaluating a defendant's claim of ineffective assistance of counsel is well settled. Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Next, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). A strong presumption exists that counsel rendered adequate assistance. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Acts or omissions of counsel must amount to more than mere tactical strategy. Ibid.

An appellate court's scope of review of a trial court's determination is limited. Factual findings and conclusions of the trial judge are generally given deference, especially when the evidence is "largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (second alteration in original)). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

We have carefully considered the record and the briefs with respect to defendant's ineffective assistance of counsel argument. We find insufficient merit in the argument raised to warrant discussion. R. 2:11-3(e)(2). We are convinced that defendant's consultations with trial counsel were limited in number prior to the entry of plea because of defendant's own actions. The record also confirms during several consultations between defense counsel, defendant and his parents, that counsel reviewed discovery and discussed the possible defenses to each of defendant's indictments; weighed the strengths of the State's cases based upon the inculpatory statements from co-defendants, as well as defendant's own confession; and defendant voluntarily chose to accept the plea offered by the State. We are also satisfied from the record, including transcripts of the plea, that defendant fully understood the terms of the negotiated plea at the time the plea was proffered by defendant and accepted by the court. The sentence itself is in accordance with the terms of the negotiated plea.

We reject defendant's argument that the trial judge erred in determining that defendant failed to demonstrate that he received an "illegal" sentence because defendant was sentenced to ten-years imprisonment while the co-defendant Koontz received a five-year sentence. Defendant was instructed by this court's order of December 18, 2001, to assert his claim of sentence disparity with the trial court on or before January 31, 2002. Defendant failed to comply with the time restraint. Although defendant did not assert the claim within the time prescribed by this court, we considered the argument because it was raised below, and find that it is without merit. Judge Mulvihill found that the disparity in sentencing was proper because co-defendant Koontz was a juvenile while defendant was an adult confronted with numerous indictments under which he could have received a forty-five year jail sentence; and defendant also had other charges pending in another county. We concur.

 
We affirm substantially for the reasons expressed by Judge Mulvihill in his oral decision of August 20, 2004.

Affirmed.

N.J.S.A. 2C:43-7.2.

Forty-five is the total of the statutory maximum sentences for the crimes that defendant pled guilty to.

Defendant also filed a pro-se supplemental brief claiming that trial counsel was ineffective because he failed to request a psychological evaluation of defendant prior to the plea. Because the issue was not presented to the trial court below, it is not properly before us now. We decline to entertain the issue. See Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002).

(continued)

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A-0103-04T4

January 20, 2006