STATE OF NEW JERSEY v. DARRELL WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1057-04T41057-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRELL WILLIAMS,

Defendant-Appellant.

__________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

98-09-2064.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (John Henry Flammer, III,

Assistant County Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant, Darrell Williams, appeals from the order denying his petition for post-conviction relief. We affirm.

Pursuant to a plea negotiation, defendant pleaded guilty to third-degree receiving stolen property, N.J.S.A. 2C:20-7, charged in one indictment, and, in a separate indictment, to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1), and second-degree possession of heroin with intent to distribute within five hundred feet of a public park, N.J.S.A. 2C:35-7.1. The State's undertaking was to move for dismissal of the remaining counts of the two indictments and to recommend an aggregate custodial term of five years subject to eighteen months of parole ineligibility. The record indicates that by reason of his past criminal record, defendant was vulnerable to an extended term, totaling forty years with a twenty-year parole disqualifier, if found guilty. The State also agreed not to oppose defendant's ROR status pending his sentence, but added "that this is a no show, no rec agreement." In other words, defendant was advised that if he did not appear on the scheduled sentencing date, he could be given the statutory maximum term for the charges, which might include an extended term. The guilty plea was accepted by the court at a hearing complying in all respects with the applicable provisions of Rules 3:9-2 and 3:9-3.

Defendant did not appear on the scheduled sentencing date. At the sentencing hearing eventually held on July 30, 1999, before the same judge, defendant explained his absence on the original date:

Well, I was worrying about trying to get into a [drug rehab] program. I had a -- I had -- soon as I was released, I had to get my daughter -- I had to move my daughter behind the V.O.P., you know. I was -- I had -- I had to get her out of where we were living at. I had to help her move, you know. I had a lot of things. Then I had to deal with my wife's glaucoma. I had a lot of things I had to deal with. Then I had to deal with myself, problems that I have to deal with.

Unsatisfied with the explanation, the judge found defendant "violated [the] no show" provision of the plea agreement. Having found a preponderance of aggravating factors, and no mitigating factors, the judge sentenced defendant on the second-degree drug conviction to the statutory maximum ten-year term, with a five-year parole bar, and on the third-degree receiving stolen property offense, to a consecutive four-year term. Although eligible, defendant was not given an extended term. Appropriate fees and penalties were also imposed and he was ordered to pay $6,362.23 in restitution.

Defendant appealed solely on the issue of excessiveness of sentence. We remanded the matter to the trial court for a detailed statement of reasons as to why it considered the maximum term appropriate under one indictment and the presumptive term appropriate under the other indictment. Additionally, the trial court was to provide a statement of reasons in support of its determination that a period of parole disqualification was required. Finally, we vacated the restitution feature of the judgment of conviction and ordered the trial court to conduct a hearing to determine an appropriate restitution amount in light of the quantum of loss and defendant's ability to pay. On remand on November 28, 2000, the judge, providing detailed reasons, imposed the same sentence, but eliminated any restitution requirement. Defendant again appealed on the sole ground of excessiveness of sentence. Finding sufficient reasons for the sentence imposed, we affirmed, and the Supreme Court denied defendant's petition for certification. State v. Williams, 174 N.J. 362 (2002). This petition for post-conviction relief (PCR) ensued.

Defendant's PCR petition claimed remediable ineffective assistance of counsel at time of plea, sentencing, and appeal. Judge Isman, who presided over defendant's guilty plea, original sentencing, and resentencing on remand, rejected the claim, reasoning:

There is no issue here with regard to whether or not there is an adequate factual basis. It is clear from the transcript below that there was an adequate factual basis laid for the charges of possession of CDS with intent to distribute as well as receiving stolen automobile and lastly, possession of CDS with intent to distribute within five hundred feet of public zone.

There is no need for a further hearing in that regard, because an adequate factual basis was given. It was under oath. The Defendant gave a knowing and intelligent and voluntary plea of guilty with a knowing, intelligent, voluntary waiver of his rights as was argued and pointed out by the Assistant Prosecutor . . . .

As to the excessiveness of sentence, Mr. Williams has contended that trial Counsel failed to emphasize the legal reasons why Defendant's sentence should not have been enhanced solely because of his failure to appear at sentencing. And secondly, he argues that the Defense failed to appropriately argue for concurrent as oppose[d] to consecutive sentences.

It was made very clear, at the time of the plea, that if you don't appear for sentencing, it's not that a Judge takes that out on you. It's not that you get a worse sentence by failing to appear, but what happens, when you fail to appear and there's a no show at the discretion of the Court agreement, is that you place your entire history and your record in front of that sentencing Judge for that Judge to exercise her or his discretion totally without regard to the Plea Agreement. And you're made very aware of the fact that you could forfeit any benefit you get from the Plea Agreement by not appearing at sentencing. That was made very clear to Mr. Williams . . . . He indicated he understood it. He wanted time out on the street. He got his time out on the street. He didn't show up for sentencing.

I found his failure to show up at sentencing inexcusable then and I find it so today. Upon further review of the transcript, I did give him an opportunity to explain why he didn't appear at sentencing. I found it totally unacceptable.

. . . .

So it is without question that Mr. Williams cannot meet his burden to show me that, (a), there was ineffective assistance of counsel with regard to the sentencing process or, (b), that it would have made any difference at all regardless of what [counsel] had argued or urged at the sentencing because it was Mr. Williams who put himself in that position. Not [counsel]. Once Mr. Williams failed to appear, the Plea Agreement went out the window and now I looked at it, as a sentencing Judge, using the sentencing criteria that I have under the rules and under the sentencing guidelines. I found Aggravating Factors Three, Six and Nine and they were heavy in these cases and no Mitigating Factors whatsoever to apply to this sentence.

This gentleman had a history of twenty-one arrests with fifteen convictions, seven violations of probation. All of these had accrued and occurred between 1977 and 1999. The only time he was law-abiding was when he was in jail.

So there was no question that the Aggravating Factors substantially outweigh the Mitigating Factors so much so that when added to the failure to appear, the disregard of the Court, the disregard of the significance of this Plea Agreement and his willingness to enter into it, I felt that the statutory maximums were well deserved with regard to the second degree possession of CDS with intent to distribute within five hundred feet and the Appellate Division briefed it.

I also ran consecutive the separate Indictment because, as we all know, under STATE VERSUS YARBO[UGH], there is no free crime. It's one thing to work out in a Plea Agreement concurrent sentences, but you don't do that if you go to trial and you don't do that if you don't show up at sentence because you lose the benefit of that concurrency and it was certainly appropriate since it was a separate crime to receiving stolen auto to sentence consecutive. In fact, the only thing the Appellate Division question[ed], as an aside, was, well, Judge, why did you give him the presumptive on receiving and maxed him out on the second degree and I thought my explanation was sufficient for that and I guess upon further review they did, too. There is such a thing as overkill.

But be that as it may, there is nothing that I can find wrong with the sentencing procedure. There is nothing I can find wrong with what [counsel] did. [Counsel] negotiated a great deal for this gentleman who was a poster boy for extended term. He has become a career criminal, a professional thief, as I indicated. It's true, it's probably related to drug issues, but he's been convicted so many times for things that are not directly related to drug issues it's really hard to say. I don't know myself.

But the bottom line is this: Under PRECIOSE and STRICKLAND, I'm not satisfied at all that either [counsel] at the trial court level or any Appellate Counsel was defective or ineffective in any way, shape or form with regard to trying to represent this man to the fullest of his or her capabilities and I do not find that anything Counsel would have done would have made any difference because Counsel did what he could do in negotiating a very favorable Plea Agreement for this gentleman who then literally just flaunted the Court and said no, no.

. . . .

I find nothing wrong at all with regard to the manner in which I imposed the sentence.

In appealing Judge Isman's denial of his PCR petition, defendant argues:

DEFENDANT'S CONVICTION FOR POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE MUST BE REVERSED AND/OR HIS SENTENCE MUST BE VACATED BECAUSE HE WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL PURSUANT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO TRIAL AND APPELLATE COUNSEL'S INEFFECTIVENESS

A. Counsel Allowed Defendant To Plead Guilty To Possession Of A Controlled Dangerous Substance With Intent To Distribute, Though He Did Not Provide A Factual Basis

B. Counsel Failed To Oppose Defendant's Being Given An Enhanced Sentence Due To His Not Appearing On The Original Sentencing Date

C. Counsel Failed To Oppose Defendant's Receiving A Consecutive Term

D. Counsel Failed To Assert That Defendant's Most Restrictive Sentence Be Served First

E. Counsel Failed To Assert Appropriate Mitigating Factors And To Oppose Recognition Of An Inappropriate Aggravating Factor

We affirm substantially for the reasons stated by Judge Isman on the record on August 6, 2004. See also R. 2:11-3(e)(2). We add, however, the following brief comments.

Remediable ineffectiveness requires a showing that counsel's performance was deficient as measured by the community standard, and that the defective performance prejudiced defendant's right to a fair disposition. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). No such showing was made here.

We are satisfied that defendant's guilty plea was fully supported by an adequate factual basis. Defendant acknowledged that he knowingly possessed heroin within five hundred feet of a public park, and he further admitted that he planned to share the heroin with a friend. These admissions are sufficient to establish an adequate factual basis. See State v. Heitzman, 209 N.J. Super. 617, 620 (App. Div. 1986), aff'd, 107 N.J. 603 (1987) (defendant's admission that in addition to personal use, he intended to share marijuana with friends was adequate basis for charge of "possess[ion] . . . with intent to distribute"); State v. S.C., 289 N.J. Super. 61, 70 (App. Div.), certif. denied, 145 N.J. 373 (1996) (testimony that defendant "purchas[ed] . . . drugs [in order] to share . . . with fiancée . . . [was] sufficient to meet . . . drug distribution scheme" element of crime employing juvenile in drug distribution scheme). Contrary to defendant's contention, the fact that defendant and another individual were both charged with the drug offense does not negate his conviction of possession with intent to distribute based on their sharing the drugs. Unlike State v. Lopez, 359 N.J. Super. 222 (App. Div.), certif. granted sub nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003), there is no claim here that defendant and his "friend" simultaneously and jointly acquired possession of the drug for their own mutual use. On the contrary, according to defendant's own admission, he possessed the drug and then planned to distribute it to a friend. Accordingly, there being a factual basis for defendant's drug conviction, his claim that counsel was ineffective for allowing defendant to plead guilty necessarily fails.

Defendant's remaining claims of ineffective assistance all relate to the excessiveness of his sentence. They are, however, "'identical or substantially equivalent' to . . . issue[s] already adjudicated on the merits[,]" thus precluding post-conviction relief. State v. Afanador, 151 N.J. 41, 51 (1997) (quoting State v. McQuaid, 147 N.J. 464, 484 (1997)). Simply rewording or cloaking a previously-determined claim in the guise of "ineffective assistance of counsel" does not permit defendant to avoid the preclusive effect of Rule 3:22-5's procedural bar that clearly applies here. McQuaid, supra, 147 N.J. at 484; State v. Sloan, 226 N.J. Super. 605, 611-12 (App. Div.), certif. denied, 133 N.J. 647 (1988).

Just as preclusive is the bar against claims of excessive sentence on PCR. See Pressler, Current N.J. Court Rules, comment 3 on R. 3:22-2, comment 5 on R. 3:22-4 (2006); State v. Cacamis, 230 N.J. Super. 1, 5 (App. Div. 1988), certif. denied, 114 N.J. 496 (1989); State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). A claim of excessive sentence or any claim of abused judicial sentencing discretion is not cognizable on post-conviction relief. This "applies with equal force to defendant's argument that the consecutive sentences imposed ran afoul of the Yarbough guidelines[,]" Flores, supra, 228 N.J. Super. at 596; accord State v. Clark, 65 N.J. 426, 437 (1974) (claim of excessive sentence by reason of the aggregation of custodial terms is distinct from claim of illegal sentence and "not . . . appropriate [for] post-conviction relief"); to defendant's claim concerning the balancing of aggravating and mitigating factors, cf. State v. Pierce, 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971); and to defendant's contention that it was error to run the more restrictive sentence consecutive to the less restrictive sentence. See State v. Ellis, 346 N.J. Super. 583, 596 (App. Div.) (holding that the specification that the less restrictive sentence be served prior to the more restrictive sentence is not illegal), 174 N.J. 535 (2002).

 
Although defendant's thinly disguised excessive sentence claims are procedurally barred, we also find them substantively without merit. As such, defendant's PCR claims of ineffective assistance of counsel, based on his alleged excessive sentence, fail to satisfy either the performance or prejudice prongs of the Strickland test.

Affirmed.

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

(continued)

(continued)

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A-1057-04T4

 

January 9, 2006