STATE OF NEW JERSEY v. DAVID F. WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0193-05T40193-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID F. WALKER,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 26, 2007 - Decided

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 99-04-1132.

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

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Pursuant to a plea agreement, defendant pled guilty on February 14, 2000 to three counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of third-degree burglary, N.J.S.A. 2C:18-2. As recommended in the plea agreement, Judge Brown imposed concurrent sentences on March 24, 2000 on the three robbery counts of seventeen years imprisonment subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent term of four years imprisonment on the burglary count. The judge also ordered that these sentences would run concurrent to the sentence defendant was then serving.

Defendant appealed and the matter was placed on our sentencing oral argument calendar. See R. 2:9-11. After oral argument on May 8, 2002, we issued an order on May 9, 2002 affirming the judgment of the trial court. Although defendant contends he later filed a petition for certification to the Supreme Court, he has produced no evidence of such a filing.

On January 16, 2004, defendant filed a petition for post-conviction relief (PCR). He was assigned counsel, who filed a supplemental brief on his behalf. The matter came before Judge Brown on August 12, 2005. After hearing oral argument, but without granting an evidentiary hearing, the judge denied defendant's petition, setting forth his reasons in a thorough oral decision on that date. This appeal followed.

In a brief filed by his attorney, defendant makes these arguments:

POINT ONE

THE DEFENDANT DID NOT UNDERSTAND THE PLEA.

POINT TWO

THE DEFENDANT WAS CONVICTED OF A CHARGE NOT IN THE INDICTMENT.

POINT THREE

COUNSEL FAILED TO ARGUE ALL RELEVANT MITIGATING FACTORS AND THE TRIAL COURT ERRONEOUSLY APPLIED AGGRAVATING FACTORS # 11 N.J.S.A. 2C:44-1(a)(b).

POINT FOUR

DEFENDANT'S SENTENCE IMPOSED UNDER PRE-AMENDMENT NERA VIOLATES THE NEW JERSEY CONSTITUTION'S PROHIBITING AGAINST THE ENACTMENT OF LAWS THAT CONFLICT WITH EACH OTHER.

POINT FIVE

AN EVIDENTIARY HEARING WAS REQUIRED FOR DEFENDANT TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT HIS PLEA.

POINT SIX

THE SENTENCE WAS MANIFESTLY EXCESSIVE.

POINT SEVEN

STATE V. NATALE CRITERIA.

In a supplemental pro se brief, defendant makes these arguments:

POINT I

THE DEFENDANTS PETITION SHOULD NOT HAVE BEEN DENIED FOR PROCEDURAL REASONS.

POINT II

THE "85%" PAROLE INELIGIBILITY PERIOD MUST BE VACATED BECAUSE THE DEFENDANT NEVER ADMITTED TO THE NERA ELEMENTS. N.J.S.A. 2C:43-7.2(d).

POINT III

THE IMPOSITION OF NERA VIOLATES THE DEFENDANT'S SIXTH AMENDMENT RIGHT UNDER State v. Johnson, 166 N.J. 523 AND State v. Natale, 178 N.J. 51.

POINT IV

NERA IS NOT AN AUTHORIZED DISPOSITION UNDER THE CODE OF CRIMINAL JUSTICE. N.J.S.A. 2C:43-2b(3).

POINT V

THE IMPOSITION OF A MANDATORY PERIOD OF 5-YEARS SUPERVISED RELEASE GOES BEYOND THE STATUTORY MAXIMUM OF 20 YEARS AND VIOLATES THE DEFENDANT'S DUE PROCESS RIGHTS. N.J.S.A. 2C:43-7.2(c); U.S.C.A. Const. Amend. 14 1.

POINT VI

THE TRIAL COURT ERRED BY NOT CONSIDERING MITIGATING FACTORS b(8) AND b(9) AT RESENTENCING. N.J.S.A. 2C:44-1(b).

Many of the arguments set forth in defendant's pro se brief are co-extensive with those presented in his attorney's brief. We reject all of the arguments and affirm.

Defendant argues that he did not fully understand the consequences of his guilty plea, as a result of which he did not make a knowing and voluntary plea. In particular, he argues that he did not understand that NERA would apply to the robbery counts and, further, that NERA should not have applied to the robbery counts.

The first prong of this argument is belied by the record of the plea hearing. Defendant's counsel advised the court that he had explained the NERA consequences to defendant, but that he had not reviewed with defendant the supplemental NERA plea form. The judge then allowed defense counsel the opportunity and time to review the plea form with defendant. After that was accomplished, the hearing resumed and counsel confirmed that he had reviewed the form with defendant. Defendant did not advise to the contrary. Further, the judge clearly and thoroughly explained to defendant that he would be subject to an 85% parole disqualifier and specified to defendant that he would be required to serve a minimum of fourteen years, five months, and fourteen days before being eligible for parole, and that he would then be subject to five years parole supervision as a further consequence of NERA.

We also find unpersuasive the second prong of this argument. The robbery offenses were committed in December 1998 and January 1999, prior to the 2001 amendment of NERA to its present form. In its pre-amendment form, NERA did not enumerate covered offenses but applied to "violent crimes" of the first or second degree. As applicable in this case, a "violent crime" was one in which a defendant threatened the immediate use of a deadly weapon. Defendant argues that his factual basis supporting his plea to the three robberies did not satisfy this requirement. We do not agree.

With respect to count one, the January 15, 1999 robbery of Scott Krystynak, defendant acknowledged that he "produced a six inch steak knife," after which he demanded $20 from the victim. In the course of doing so, he threatened the victim, saying "don't make me hurt you." The victim handed over $20. It is easily inferable that defendant threatened the victim with the immediate use of the knife. With the other two robberies, defendant also admitted holding a knife while demanding money. One of the victims acceded to the demand and handed over money. The other screamed, in response to which defendant also screamed and the two ran away in opposite directions. Although more attenuated than in the first case, it is reasonable to infer that defendant not only possessed the knife but brandished it in a threatening manner in these cases as well.

Further, the supplemental plea form defines a violent crime to include one in which the perpetrator caused death or serious bodily injury or used or threatened the immediate use of a deadly weapon. There is no suggestion that any of the victims were killed or injured or that defendant actually used the knife on them. Thus, by process of elimination, the applicable portion of the definition was the threat of immediate use of the deadly weapon. By acknowledging his review of the supplemental plea form, defendant acknowledged complying with that definition.

We are satisfied from our review of the record that NERA was properly applied to the three robbery counts and that defendant fully understood it would be applied. Thus, defendant presented no basis under this argument to support withdrawal of his plea or to support his contention that his plea was not knowing and voluntary.

Defendant argues that his conviction of the charge in count ten was illegal because that count was improperly amended at his plea proceeding and "upgraded" from attempted robbery to robbery. We are not persuaded by this argument. We agree with the general proposition that a defendant cannot be convicted of an offense not charged in an indictment. See State v. Lefurge, 101 N.J. 404, 414-15 (1986). However, an indictment is merely a pleading device and not an end in itself. Id. at 419. An indictment may be amended to correct "an error in form or the description of the crime intended to be charged" as long as the amendment "does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby." R. 3:7-4. That is what happened here.

The statutory language contained in count ten described a first-degree armed robbery: "[I]n the course of committing a theft . . . [defendant] (1) did inflict bodily injury or use force upon another; or (2) did threaten another with or purposely put another in fear of immediate bodily injury." The phrase "in the course of committing [a] theft" includes "an attempt to commit a theft." N.J.S.A. 2C:15-1. The victim in count ten is the person who screamed and ran away. Therefore, defendant's attempt to commit a theft was unsuccessful. Nevertheless, the attempt to commit a theft, for purposes of New Jersey's robbery statute, is deemed to be conduct "in the course of committing a theft." Ibid.

Further, although count ten mistakenly referenced the attempt section, N.J.S.A. 2C:5-1, and referred to the offense as "Criminal Attempt/Robbery," it designated the crime as one of the first-degree.

Accordingly, by the substantive content of the allegations in count ten, the crime described was a first-degree armed robbery. And, it was graded as such, because an attempt to commit robbery would constitute a second-degree crime. See N.J.S.A. 2C:5-4a. Thus, this was indeed a clerical error, properly subject to correction by amendment. Defendant was plainly on notice that he was charged in count ten with first-degree armed robbery. The amendment made no change in the substance of the crime and did not prejudice defendant in defending against the charge.

Defendant argues that his counsel was deficient for failing to argue relevant mitigating factors and for failing to argue against the applicability and weight attributed to aggravating factors by the court. He further argues that his sentence was manifestly excessive and that a remand for resentencing under State v. Natale, 184 N.J. 458 (2005), is required. The arguments regarding aggravating and mitigating factors and the excessiveness of the sentence have been adjudicated or could have been adjudicated on direct appeal and are thus procedurally barred. R. 3:22-4 and -5. Further, there is no merit to those arguments.

In imposing sentence initially, Judge Brown found the applicability of aggravating factors (3), (6), (9) and (11). See N.J.S.A. 2C:44-1a. He found no mitigating factors, and he found that the aggravating factors, by clear and convincing evidence, substantially preponderated. In the PCR proceeding, defendant argued and Judge Brown agreed that aggravating factor (11) should not have applied. See State v. Dalziel, 182 N.J. 494 (2005). The judge deleted that factor and considered defendant's arguments that multiple mitigating factors should have applied. The judge rejected the proffered mitigating factors and proceeded to re-sentence defendant. The judge continued to be clearly convinced that the remaining aggravating factors substantially preponderated over the non-existent mitigating factors and re-imposed the same sentence.

Defendant's arguments do not satisfy either prong of the Strickland/Fritz test. His attorney was not deficient for failing to argue the applicability of mitigating factors. When they were argued at the resentencing, they were rejected, and from our review of the record, we have no hesitancy in concluding that Judge Brown did not mistakenly exercise his discretion in rejecting them. Thus, failing to argue mitigating factors initially cannot be said to be deficient conduct and, even if it was, it would have had no prejudicial effect because they would have been rejected.

No remand pursuant to Natale is required here. The Supreme Court decided Natale on August 2, 2005. The PCR hearing was conducted on August 12, 2005. Because defendant alleged in his PCR petition that he had filed a petition for certification with the Supreme Court but produced no evidence that he had done so, Judge Brown contacted the Clerk of the Supreme Court and confirmed that as of the date he checked, August 8, 2005, defendant had filed no such petition. Neither defendant nor his PCR counsel refuted that contention. Therefore, defendant's case was not in the pipeline when Natale was decided and was not subject to the Natale holding. See Natale, supra, 184 N.J. at 494. Further, when Judge Brown re-sentenced defendant after deleting aggravating factor (11), he did so with knowledge of the Natale decision and imposed sentence without regard to any presumptive term. Thus, in effect, defendant has been resentenced in accordance with the Natale principles.

Defendant argues that he was entitled to an evidentiary hearing in his PCR proceeding. We agree with Judge Brown's conclusion that defendant failed to establish a prima facie case of ineffective assistance of counsel, and was therefore not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Defendant's arguments on appeal in this regard do not warrant further discussion. R. 2:11-3(e)(2).

Any arguments we have not specifically addressed lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-0193-05T4

October 4, 2007