STATE OF NEW JERSEY v. MARC ARDIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4602-05T44602-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC ARDIS,

Defendant-Appellant.

_____________________________________________________

 

Submitted October 22, 2007 - Decided

Before Judges Stern and A.A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 91-06-1676.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J. Owens,

Designated Counsel, on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

We reversed the denial of defendant's petition for post-conviction relief ("PCR") in light of State v. Rue, 175 N.J. 1 (2002), and remanded for appointment of new counsel and further proceedings on the petition. Defendant was denied PCR again, and now argues he was improperly denied PCR based on ineffective assistance of trial counsel, particularly in the absence of an evidentiary hearing.

After a trial, defendant received an aggregate sentence of sixty-eight years in the custody of the Commissioner of the Department of Corrections, with fifty years before parole eligibility, for aggravated sexual assault and two counts of kidnapping imposed consecutively and other offenses for which concurrent sentences were imposed. Each of the consecutive sentences involved a different victim. However, on defendant's direct appeal, we modified the sentence in light of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), to require one of the consecutive sentences to be served concurrently with one of the kidnapping convictions, so that the aggregate sentence became fifty years with fifty years to be served before parole eligibility. The ineligibility terms were mandatory on each kidnapping conviction, and defendant conceded that. The proceedings on the PCR petition followed our affirmance of the conviction and modification of the sentence imposed.

Defendant raises the issue we expressly permitted him to raise on the PCR remand that counsel did not properly advise defendant with respect to the plea offer, particularly given counsel's alleged failure to explain the impact of the DNA evidence on the strength of the State's case. His petition asserted he was denied "effective assistance of counsel because [counsel] did not properly explain the State's evidence against [defendant] when [he] rejected the State's final plea offer." The petition asserts if he "would have understood what D.N.A. evidence was and how incriminating this evidence is I would have understood that going to trial would have been tantamount [to] legal suicide."

Defendant claims he is entitled to a "a new trial." Even if his factual assertions are true, the remedy would not be a new trial. However, in light of our disposition, the issue of any remedy, if the judge would not now accept the plea recommendation, need not be considered.

Defendant further contends he is entitled to an evidentiary hearing and "trial counsel should be called to testify to describe the information he provided . . . regarding DNA evidence and its value," and that testimony from both trial counsel and defendant is also necessary "in order to assess the decision making process with respect to the decision to accept a plea bargain." Because the DNA testimony and plea offer were discussed at the pretrial conference in August 1992, the State asserts the petition is inadequate and cannot be read to support defendant's claims. It also asserts that "it is incumbent upon the defendant to set forth with some specificity what his attorney said to him about the evidence."

For sure, the State is correct that a defendant cannot reevaluate his decision to go to trial merely by claiming that counsel had to say something else or something more in advance of a plea cut-off. Hence, we agree with the State that something more is required than "conclusory statements" of the defendant after the trial is over, and the question before us is whether defendant alleged enough in his PCR petition to obtain an evidentiary hearing. The time since the trial, or its remoteness, and the length of the sentence may affect his burden of a prima facie showing, see State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999), but is not dispositive. See also State v. Taccetta, 351 N.J. Super. 196, (App. Div.), certif. denied, 174 N.J. 544 (2002).

As the PCR judge noted, the record of the pretrial conference is inconsistent with what was alleged in the petition. It reveals the following discussion:

THE COURT: Okay. Mr. Ardis, Judge Greenberg's philosophy is such, since he will be the judge that will provide over the trial, is such, so it is clear to you, that he will not accept any plea agreement after a matter is placed on his trial list. In other words, after today should the matter be put on the trial list, should you desire to plead guilty or should you be found guilty, the sentence would be left solely to the discretion of the judge. In other words, the judge would not be bound by any agreement that you with the assistance of your attorney and the prosecutor may agree to. Do you understand?

MR. ARDIS: Yes.

THE COURT: Okay.

[DEFENSE ATTORNEY]: Judge, may I place something on the record?

THE COURT: Sure.

[DEFENSE ATTORNEY]: Your Honor, this matter has been before the Court on prior matters and I've discussed this matter with my client along with him and his family, with his family alone. And he's aware, I'm sure, that on Count 6 and 10 of this indictment that he is if he's convicted, the Court is required to impose a life, serve 25 on each of those counts, which would amount to a life, serve 50. He's aware of that. I'd like to place that on the record and the Court address his concerning that because after today, there's no further negotiations. I want him to be fully aware of that.

THE COURT: Mr. Ardis, do you understand what [defense counsel] just placed upon the record and told me?

MR. ARDIS: Yes.

THE COURT: All right. Is it accurate?

MR. ARDIS: Yes.

THE COURT: Okay. Knowing all that I have said to you and [defense counsel] has said to you, it is my understanding that you wish to proceed to trial, is that correct?

MR. ARDIS: Yes.

THE COURT: But I will afford you if you wish, and it's entirely up to you, if you would like an additional period of time today to discuss it with [defense counsel], I will afford it to I would afford that to you. If you're satisfied that all of your questions have been answered and you understand the position that Judge Greenberg takes in matters such as this, I will place it on the trial list. Do you wish an additional period of time to speak to [defense counsel] or do you wish that I just affix a trial date for you?

MR. ARDIS: Trial date.

In light of this colloquy, we conclude that defendant had to allege more specific facts about incorrect, improper or even inadequate advice in support of his claim of entitlement to a hearing. As the PCR judge said:

Now, I suggest to you, in fact, I find to you that even if it were true that [defense counsel] failed to provide Mr. Ardis of the advice he thinks he should have gotten about DNA, that given the attitude of Mr. Ardis, as we see in the pretrial conference hearing, that it would I can't find that it would probably have engendered a different result, i.e., that he would have been persuaded to plead guilty and take the deal that was being offered rather than to enter the guilty plea.

We agree with the judge's assessment. Accordingly, we affirm the denial of the petition substantially for the reasons expressed in Judge Albert J. Garofolo's oral opinion of December 9, 2005.

 

Defendant also asserted that counsel never explained he "could receive a fifty year mandatory term if convicted at trial," and he "would have surely accepted the state's plea offer" if he was told. As will be developed herein by reference to the pretrial conference, however, he was advised about the exposure to a mandatory sentence upon conviction.

(continued)

(continued)

7

A-4602-05T4

RECORD IMPOUNDED

November 13, 2007