STATE OF NEW JERSEY v. JOSEPH AUSTIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0249-05T40249-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSEPH T. AUSTIN,

Defendant-Appellant.

__________________________________

 

Submitted: March 14, 2007 - Decided April 12, 2007

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 99-09-1206.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Austin appeals from an order denying his petition for post-conviction relief. He is serving a seventy-year term with a thirty-five year period of parole ineligibility for the murder of a twenty-year-old woman.

In his petition, defendant asserts that his attorney was ineffective and that his guilty plea was involuntary because it followed a threat to his life by the assistant prosecutor. In the certification in support of his petition, defendant explained that he balked during the hearing scheduled to take his guilty plea and was taken to a jury deliberation room. He contends he was left in the room with the assistant prosecutor who said, "If you do not sign this deal, I will kill you. You will be put to death." Defendant asserts that he was afraid for his life. After several moments of prayer, he agreed to sign the plea forms and enter his plea of guilty.

Defendant concedes that he never believed that the assistant prosecutor would physically harm him. He also concedes that he interpreted the comments by the assistant prosecutor as a statement of his intention to seek the death penalty. In fact, the plea agreement provides that the State would not seek the death penalty.

Defendant's petition was denied without an evidentiary hearing. Judge Grasso reviewed the various deficiencies cited by defendant, including the failure to challenge the search and seizure of defendant's vehicle and boots, the failure to raise diminished capacity as a defense, and the failure to challenge the voluntariness of his confession, and held that defendant failed to establish a prima facie case of ineffective assistance of counsel. As to defendant's allegation that the assistant prosecutor threatened him, Judge Grasso noted the threat was not corroborated, highly improbable, and that at no time before or after the plea did defendant disclose the threat and its effect on his decision to plead guilty.

On appeal, defendant raises the following arguments:

POINT I:

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.

POINT II:

THE PCR COURT ERRED IN DENYING THE PETITION (NOT RAISED BELOW).

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). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland. First, defendant must show that defense counsel's performance was indeed deficient. Second, 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. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61-62, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts, viewed in the light most favorable to the defendant, would entitle the defendant to post-conviction relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

Defendant confines his attention on appeal to the alleged threat, which he concedes was interpreted solely as the prosecutor's intention to seek the death penalty. Defendant asserts that his attorney should not have left him in the room with the assistant prosecutor and subjected him to coercion. Disclosure of the full range of penal consequences is required in order to assure that any agreement is a knowing and voluntary waiver of the full panoply of rights conferred on a defendant. State v. Warren, 115 N.J. 433, 444-45 (1989). The full measure of the penal consequences of a criminal act may be awesome, even frightening, to an individual. It cannot, however be considered coercive. Reality may be unpleasant or frightening, but it does not render an otherwise knowledgeable plea involuntary. Moreover, unlike in State v. McQuaid, 147 N.J. 464, 489 (1997), there is no suggestion in this case that defendant was not death-penalty eligible. In other words, defendant did not enter his guilty plea based on a misapprehension of law or fact. Id. at 487.

We, therefore, conclude that defendant failed to establish a prima facie case of ineffective assistance of counsel. The judge was not required to conduct an evidentiary hearing and appropriately denied the petition.

Affirmed.

 

We do not discuss these allegations and the judge's resolution of these allegations at length because on appeal, defendant focuses solely on the threat uttered by the assistant prosecutor prior to the execution of the plea agreement and entry of the guilty plea.

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6

A-0249-05T4

April 12, 2007