STATE OF NEW JERSEY v. RALPH CLINTON MORRIS, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0403-05T40403-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH CLINTON MORRIS, JR.,

Defendant-Appellant.

_________________________________

 

Submitted January 10, 2007 - Decided May 9, 2007

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, No. I-95-05-1218.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Joan T. Buckley,

Designated Counsel, of counsel and on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor,

attorney for respondent (Laurie A. Corson,

Acting Assistant Prosecutor, of counsel and

on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Following an evidentiary hearing, the trial court denied defendant's petition for post-conviction relief. Defendant has appealed. In the brief filed by counsel, defendant raises the following issue:

THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE THE DEFENDANT'S TRIAL ATTORNEY COMMITTED A SERIOUS ERROR BY FAILING TO PROPERLY INFORM THE DEFENDANT ABOUT THE SENTENCING CONSEQUENCES OF A GUILTY PLEA, THUS PREJUDICING HIS CONSTITUTIONAL RIGHT TO A TRIAL.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

In the early morning hours of September 16, 1994, defendant broke into the home of a seventy-two-year-old woman. He had performed several odd jobs for her and knew that she lived alone. Defendant struck her several times and repeatedly sexually assaulted her as well. He fled with the slightly more than one hundred dollars in cash that she had in the house.

Defendant was apprehended approximately two months later and subsequently indicted for first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree terroristic threats, N.J.S.A. 2C:12-3b; and three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3). Following the first day of trial, defendant entered a retraxit plea of guilty. In his colloquy with the trial court, defendant indicated his intent to plead guilty to all counts of the indictment but was unable to provide a sufficient factual basis for the sixth count, one of the charges of aggravated sexual assault. When the prosecutor indicated her willingness to dismiss that count in light of defendant's guilty plea to the remaining counts, the trial court accepted the plea.

Defendant appeared before the trial court for sentencing on August 15, 1997, at which time the court, on the basis of defendant's prior record, granted the State's motion to sentence defendant to an extended term as a persistent offender. N.J.S.A. 2C:44-3a. It then imposed the following sentence: for count 1, first degree robbery, life in prison, with defendant having to serve twenty-five years before being considered eligible for parole; for count 2, second-degree burglary, ten years in prison, with a five-year period of parole ineligibility, concurrent to count 1; for count 3, terroristic threats, five years in prison, concurrent to count 1; for count 4, first-degree aggravated sexual assault, twenty years in prison, with a ten-year period of parole ineligibility, consecutive to count 1; for count 5, first-degree aggravated sexual assault, twenty years in prison, with a ten- year period of parole ineligibility, consecutive to count 1 and consecutive to count 4.

Defendant appealed his sentence, and the matter was heard on an Excessive Sentence Oral Argument calendar and remanded for resentencing under State v. Yarbough, 100 N.J. 627, 643-44 (1985). State v. Morris, No. A-2483-97T4 (App. Div. Feb. 11, 1999). The trial court resentenced defendant on July 26, 1999, and imposed the following sentence: for count 1, life in prison, with a twenty-five year period of parole ineligibility; for count 2, ten years in prison with a five-year period of parole ineligibility, concurrent with count 1; for count 3, five years in prison, consecutive to count 1; for count 4, twenty years in prison, with a ten-year period of parole ineligibility, consecutive to count 1; for count 5, twenty years in prison, with a ten-year period of parole ineligibility, concurrent with count 4. Defendant's aggregate sentence was life in prison, plus twenty-five years, thirty-five of which would have to be served before defendant would be eligible for parole.

Defendant again appealed his sentence, and again his appeal was heard on an Excessive Sentence Oral Argument calendar. We affirmed this sentence. State v. Morris, No. A-2803-99T4 (App. Div. Oct. 5, 2000). The Supreme Court denied defendant's petition for certification. 169 N.J. 604 (2001)

In May 2002 defendant filed his petition for post-conviction relief. Counsel was assigned to represent defendant in connection with that petition and filed a brief on his behalf in which he argued that defendant's trial attorney was deficient in the following ways: in failing to advise him that adverse consequences could flow from confessing to these crimes and in failing to obtain the suppression of his statements; in failing to cross-examine the victim at trial; in failing to give defendant accurate advice about his potential sentence exposure; in failing to argue defendant was entitled to gap time credit; and in failing to oppose the application to sentence defendant to an extended term. In this brief, he also challenged his sentence on various grounds.

A plenary hearing was held in July 2005. The trial court noted that everyone agreed that defendant was entitled to gap time credits and ordered that the judgment of conviction be amended accordingly. It also noted that defendant's assertion that his trial counsel did not cross-examine the victim was belied by the trial transcript, which contained pages of that cross-examination. The trial court heard testimony on three issues: whether defendant's trial counsel advised him he could testify at trial; whether defendant's trial counsel advised him what his maximum sentence exposure would be; and whether defendant's trial counsel advised him he was subject to an extended-term sentence.

Defendant's trial attorney testified first. He said that he had advised defendant that his prior record made him eligible to receive an extended-term sentence and that he had explained to defendant that meant a sentence that was twice what he might otherwise have received. He said defendant continued to maintain that his record was not such as would warrant an extended-term sentence. Defendant has twice appealed to this court, arguing that his extended-term sentence was excessive, and we rejected those arguments.

Defendant's trial attorney also testified that although he did not have a clear recollection of discussing with defendant what his maximum sentence exposure would be, he had discussed with defendant that he was facing a significant period of incarceration. He said that defendant was unwilling to acknowledge that possibility. He said defendant was of the view that since the victim had expressed her forgiveness, he should not have to spend more than several years in prison.

He said defendant was confident that the victim would not testify at trial and that it was only after she did so that he decided to plead guilty. The attorney testified he reviewed with defendant that by waiting until that point, it was no longer possible to negotiate any favorable terms and that defendant's only option, if he wanted to plead guilty, was to enter an open plea, with no recommendation as to his future sentence. He said defendant was filled with guilt at what he had done and indicated he simply wanted to get the proceedings to an end. Our review of the plea transcript corroborates this testimony.

Our review of this plea transcript also indicates that defendant was not clearly advised on the record at that time of the maximum sentence that he could receive. Indeed, at one point there was a reference to a parole disqualifier of sixty-two and one-half years. The trial court frankly admitted at the hearing on defendant's post-conviction relief petition that it was uncertain how that figure had been calculated.

Defendant's testimony at the post-conviction relief hearing, however, clearly indicates that he understood when he pled guilty the general potential parameters he was facing. Defendant first said he thought he would only be sentenced to twenty years in prison. The following colloquy then occurred.

Q. You thought that was the maximum sentence you could get was twenty years in prison?

A. Yes.

Q. Do you recall being in court when you pled guilty in front of the judge?

A. Yes, sir.

Q. Do you recall the judge telling you that your sentence could be mathematically as long as a life term with approximately 35 years' parole disqualifier?

A. Yeah, that was when I entered a plea of guilty.

Q. Right.

Now, when the judge told you that and then asked you "Do you understand that," do you recall him asking you that?

A. Yes.

Q. Did you understand at the time that the judge told you life with a possibility of approximately 35 years' parole disqualifier?

A. I understood what he was saying, but the way he said it, I understood it to be that he was saying "I could give you up to this much time."

Q. Right.

A. Not that he was going to.

Q. So, you understood then?

A. Yeah.

Q. You could have potentially faced up to 35 years without parole?

A. I could have faced up to 35 years.

Q. Without parole?

A. Without parole.

Later, the following colloquy occurred.

Q. So, you decided to go to trial because you thought--because the only plea offer the prosecutor was giving you was a life sentence, 35 years without parole?

A. Right.

Q. So, fair to say when you pled guilty, by pleading open now that the prosecutor could ask for a life sentence, 35 without parole?

A. Well, I knew she was going to do that anyway. But, I was hoping the judge would have mercy on me. Didn't work like that.

We do not condone the failure of the trial court and defense counsel to state more clearly on the record at the time defendant entered his plea of guilty what the potential sentencing ramifications were for this defendant. In the context of this matter, where defendant has not only never denied his guilt but restated it repeatedly, we are convinced that it would place form over substance were we to grant defendant a new trial on this basis.

We recognize that some of the confusion surrounding this matter was probably engendered by the manner in which defendant entered his guilty plea. The plea form executed by defendant was clearly prepared after defendant had pled guilty on the record and provided his factual basis. This is evident because the plea form indicates that count 6 of the indictment was to be dismissed, a result that was only achieved when defendant was unable or unwilling to provide a factual basis for that count. Further, nowhere within the plea transcript does the trial court interrogate defendant about the plea form and whether it was correctly filled out and whether the answers were truthful.

We know from the material supplied to us in connection with this appeal that defendant only pled guilty on the second day of trial, after the victim had testified. His attorney testified at the hearing on defendant's petition that he only learned that defendant wanted to plead guilty when he arrived at court that morning. We infer that there was a desire to put the plea through promptly, perhaps to avoid having the jurors wait for a long period of time with no explanation. While understandable, such haste should be avoided in the future to prevent possible misunderstandings. We deem it fortunate that the record that is before us allows us to be confident that defendant was not misled by the plea proceedings; defendant may indeed have had a hope of receiving a lesser sentence, but that did not arise from anything said to him in connection with his guilty plea.

As to the final issue, whether defendant's attorney advised him of his right to testify at trial, counsel conceded at the hearing that he had no specific recollection of discussing that with defendant. He said he would have discouraged defendant from testifying as to what occurred the morning of the incident because it only would have repeated before the jury what was contained in defendant's three confessions (earlier deemed admissible) and what the victim had testified to. He also acknowledged that defendant had repeatedly told him of his involvement and thus counsel could not have put defendant on the stand for the purpose of denying his guilt.

Defendant has filed two supplemental pro se briefs in connection with this appeal. In both, he complains that his trial counsel did not promptly communicate with him, which led, defendant maintains, to his confession. Defendant's trial attorney had earlier represented defendant in connection with a proceeding brought by the New Jersey Division of Youth and Family Services, as well as an unrelated burglary charge. That attorney was not assigned to represent defendant in connection with these charges until well after defendant had provided his statements. Defendant knew that the attorney was representing him with regard to the burglary charge and yet failed to request to talk with him after being advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We have reviewed the attachments to defendant's pro se briefs, and we do not find in them support for defendant's assertion that counsel had been assigned to represent him prior to defendant giving his confession.

After reviewing the entirety of the record before us, we are satisfied that the order denying defendant's petition for post-conviction relief should be affirmed.

 

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A-0403-05T4

May 9, 2007