STATE OF NEW JERSEY v. KEITH SHEPPARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5092-05T55092-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH SHEPPARD,

Defendant-Appellant.

_______________________________________

 

Submitted March 14, 2007 - Decided April 5, 2007

Before Judges Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-06-00696.

Carlos Peay, Jr., attorney for appellant.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jillian J. Reyes, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keith Sheppard appeals from an order entered by Judge Walter R. Barisonek on May 1, 2006, denying defendant's petition for post conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged under a Union County indictment with unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); aggravated assault, N.J.S.A. 2C:12-1b(4) (count three); and carjacking, N.J.S.A. 2C:15-2 (count four). On October 19, 1999, defendant appeared before Judge Barisonek and pled guilty to carjacking. The plea agreement called for imposition of a custodial sentence of twenty-four years, with an eight-year period of parole ineligibility.

At the plea hearing, Judge Barisonek advised defendant that if he remained out on bail and was arrested "between now and sentencing day," or failed to appear for his sentencing, he could face up to thirty years in jail, with a fifteen-year period of parole ineligibility. Defendant told the judge that he understood. Defendant asserted that he was going to return to Ohio.

As a condition of bail, defendant was required to execute a waiver of extradition. The judge commented, "So that if you decide you don't want to show up back here, you can be extradited and brought back here involuntarily, and you're waiving your right to [an] extradition hearing to come back here." The judge added that, if defendant failed to appear on the sentencing date, a bench warrant would issue. The judge said, "And you also know the consequences that your plea offer then will change and you face the maximums."

Sentencing was scheduled for January 14, 2002. Defendant did not appear and a bench warrant was issued. Defendant thereafter was arrested in Ohio and later extradited to New Jersey. On or about December 24, 2002, defendant filed a motion to retract his guilty plea, alleging that he had no involvement in the charged offenses. Defendant asserted that Jeffrey Sagotsky (Sagotsky), a staff attorney in the Public Defender's Office, had been assigned to his case but, according to defendant, Sagotsky did not consult with him sufficiently to prepare for trial.

Defendant claimed that he and his family made arrangements to retain another trial attorney and sought an adjournment of the scheduled October 18, 1999 trial date so that the new attorney could familiarize himself with the file. The judge refused to adjourn the matter and defendant said that he was forced to proceed with Sagotsky as trial counsel. Defendant asserted that he pled guilty because he had no confidence in Sagotsky's "willingness or ability to handle" the case, and because he wanted to avoid a substantial period of incarceration.

On February 21, 2002, Judge Barisonek held a hearing on defendant's motion, at which defendant and Sagotsky testified. The judge placed his decision on the record, concluding that there was "absolutely no merit" to the application. The judge stated, "The plea was knowingly and voluntarily entered into. There was no force or coercion. [Defendant] chose to accept the plea."

Judge Barisonek sentenced defendant on March 21, 2003. At the sentencing hearing, defendant was represented by David B. Littman (Littman), another attorney on the staff of the Public Defender's Office. The judge found that defendant had not appeared on the scheduled sentencing date, and also had been convicted for offenses that occurred after he entered his plea. The judge found that, in these circumstances, he was not bound by the terms of the plea agreement and defendant could be sentenced to the maximum term for the carjacking offense.

The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge determined that there were no mitigating factors and the aggravating factors substantially outweighed the lack of mitigating factors. The judge sentenced defendant to a twenty-five year term of incarceration, with a ten-year period of parole ineligibility.

On or about January 27, 2006, defendant filed a petition for PCR. Defendant asserted that he had been denied the effective assistance of counsel because his trial attorneys failed to raise and litigate certain claims regarding: 1) the enhanced sentence he received; 2) the failure to file a requested notice of appeal; and 3) the lack of "any meaningful pretrial investigation" to establish defendant's innocence.

On May 1, 2006, Judge Barisonek considered the petition and placed his decision on the record. The judge found that an evidentiary hearing was not required because the record included the transcripts of the September 13, 1999 pre-trial conference; the October 19, 1999 plea hearing; the February 21, 2002 motion to retract the plea; and the March 21, 2003 sentencing hearing. The judge was satisfied that the record contained all the information necessary to resolve the PCR petition.

Judge Barisonek rejected defendant's claim that he had been denied the effective assistance of counsel. The judge found that Littman had capably represented defendant in the sentencing proceeding. The judge found that the enhanced sentence was warranted not only because defendant failed to appear for sentencing but also because defendant had been convicted in Ohio of certain offenses that were committed after defendant entered his plea.

The judge noted that he had informed defendant when he entered his plea that he would face up to thirty years of incarceration, with a fifteen-year period of parole ineligibility, if he was arrested again or failed to show up for his sentencing. The judge found that defendant understood the consequences of his plea.

The judge also found no merit in defendant's claim that Sagotsky had been ineffective in his representation of defendant. The judge commented that Sagotsky's handling of the plea was "the best it could be under the circumstances." The judge noted that Sagotsky had testified at the February 21, 2003, hearing and said that he was ready to try the case on October 19, 1999, even though there had been a lack of cooperation on the part of defendant. Sagotsky further testified that he had reviewed the file extensively prior to the scheduled trial date. The judge reaffirmed his earlier determinations that Sagotsky was adequately prepared for trial and defendant had entered his plea "of his own free will."

The judge concluded that there was no basis for PCR. The judge accordingly entered an order on May 1, 2006, denying defendant's petition. This appeal followed.

Defendant raises the following points for our consideration:

I. THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

A. STANDARD OF REVIEW.

B. BASED ON COUNSEL'S LACK OF PRETRIAL INVESTIGATION, IN ADDITION TO HIS SWORN ADMISSION THAT HE WAS ILL-PREPARED TO BEGIN TRIAL, DEFENDANT'S GUILTY PLEA WAS INVOLUNTARY.

C. DEFENDANT'S GUILTY PLEAS DID NOT CONTAIN AN ADEQUATE FACTUAL BASIS TO SUSTAIN THE FIRST-DEGREE CARJACKING CHARGE.

D. SINCE [NEITHER] COUNSEL NOR THE PLEA COURT [EVER] ADVISED THE DEFENDANT OF THE DIRECT PENAL CONSEQUENCES AS CONTEMPLATED IN STATE v. SUBIN, AN EVIDENTIARY HEARING SHOULD HAVE BEEN CONDUCTED.

II. IN LIGHT OF THE CIRCUMSTANCES IN THIS CASE, THE SUBIN PROVISIONS WERE NOT VIOLATED IN ANY MANNER AND THE DEFENDANT SHOULD NOT HAVE RECEIVED AN ENHANCED SENTENCE.

III. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT COUNSEL WAS PRESUMPTIVELY INEFFECTIVE IN NOT FILING A DIRECT APPEAL, A HEARING SHOULD HAVE BEEN CONDUCTED.

We have carefully considered the record in light of these contentions and we are convinced that they are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Barisonek in his thorough and comprehensive decision from the bench on May 1, 2006. We add the following comments with respect to Point III.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on such a claim, a defendant must show that his attorney's performance was deficient and that he was prejudiced by the attorney's errors. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To establish that his attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to establish that he was prejudiced by the attorney's deficient performance, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We assume for purposes of our decision that counsel erred in failing to challenge defendant's sentence on appeal. Nevertheless, we are convinced that defendant was not prejudiced by that error. We are satisfied from our review of the record that the imposition of an enhanced sentence was consistent with State v. Subin, 222 N.J. Super. 227, 238-40 (App. Div.), certif. denied, 1 111 N.J. 580 (1988). As Judge Barisonek pointed out in his decision denying PCR relief, the enhanced sentence was not imposed simply because defendant failed to appear for sentencing. The sentence was imposed for the additional reason that defendant had been convicted of new offenses in Ohio while on bail awaiting sentencing. Moreover, when the judge imposed the sentence he weighed the relevant aggravating factors against the absence of any mitigating factors. We are convinced that if an appeal been taken, the sentence would have been affirmed.

Affirmed.

 

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A-5092-05T5

April 5, 2007