STATE OF NEW JERSEY v. QUAN DUNLAP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4257-06T44257-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUAN DUNLAP,

a/k/a SAIHEED DUNLAP and

QUAN D. DUNLAP,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 8, 2008 - Decided

Before Judges Cuff and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1300.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Laura A. Perry, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Quan Dunlap appeals from a December 11, 2006 order that denied his petition for post-conviction relief (PCR). We affirm.

I.

On January 26, 2004, following the entry of a negotiated plea of guilty, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and sentenced to a seven-year term of imprisonment, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On that same day, defendant was sentenced to a concurrent term of five years of imprisonment on a charge of third-degree absconding from parole. The two sentences were ordered to be served concurrently.

After sentencing, defendant filed an appeal that was placed on the excessive sentence oral argument (ESOA) calendar. On October 18, 2005, we affirmed defendant's sentence. Thereafter, defendant filed the PCR petition that is the subject of this appeal. He asserted before the Law Division that he was entitled to post-conviction relief because trial counsel provided ineffective assistance of counsel by: 1) failing to adequately explain the plea offer; 2) failing to provide him with a copy of the discovery or review that discovery with him before he entered a plea of guilty; 3) pressuring him into pleading guilty; and 4) misstating his arguments during the ESOA proceeding.

At the December 4, 2006 hearing on the petition, both sides rested on the claims advanced in their respective briefs and did not request oral argument. In an oral opinion, Judge Theemling concluded that defendant failed to present a prima facie case of ineffective assistance of counsel and, accordingly, no evidentiary hearing was required.

In particular, the judge remarked that even if trial counsel failed to provide defendant with discovery, "[t]wo witnesses and the proceeds of the robbery being found on the defendant is sufficient to show there was no prejudice to [him] . . . . The overwhelming evidence against him was extremely strong." As to defendant's claim that trial counsel failed to accurately present defendant's claims during the ESOA hearing, the judge concluded that such contention was not sufficient to constitute ineffective assistance of counsel because defendant failed to establish that the outcome would have been different were it not for the alleged misstatement. Finally, Judge Theemling rejected the claim that trial counsel pressured defendant to accept a plea he would otherwise have rejected. The judge pointed to defendant's sworn statement on the record at the time of the plea that no one had forced him or coerced him to plead guilty and that his attorney had reviewed the plea form with him and answered any of his questions. Consequently, Judge Theemling denied defendant's PCR petition in its entirety.

On appeal, defendant raises the following claims:

I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

A. The defendant was denied the effective assistance of counsel by his post-conviction relief attorney in violation of the New Jersey and United States Constitutions.

B. The post-conviction relief attorney failed to argue or demonstrate how defense counsel did not properly explain the plea agreement to the defendant or how the defendant misunderstood the plea agreement.

C. The post-conviction relief attorney did not elaborate upon the issue of defense counsel's failure to provide the defendant with discovery, nor did the PCR attorney explain in her brief or during oral argument how the defendant was prejudiced by the failure of defense counsel to provide him with discovery.

D. The post-conviction relief attorney presented no proof to support the assertion that the defendant was pressured by his attorney to enter into a plea agreement that he did not understand.

II. APPELLATE COUNSEL WAS DEFICIENT BY MISSTATING THE FACTS DURING EXCESSIVE SENTENCING ORAL ARGUMENT AND BY NOT REQUESTING THAT THIS CASE BE DIVERTED FROM THE EXCESSIVE SENTENCING ORAL ARGUMENT PROGRAM SO THAT OTHER SUBSTANTIVE ISSUES COULD BE RAISED ON APPEAL IN ADDITION TO THE SENTENCING ISSUES.

III. THE TRIAL JUDGE SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.

IV. THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.

A. Counsel was ineffective because he did not advocate for his client and failed to address the mitigating factors in this case.

B. The sentencing court gave too much weight to the aggravating factors while improperly de-emphasizing the mitigating factors.

V. THE TRIAL COURT IMPROPERLY ACCEPTED THE DEFENDANT'S GUILTY PLEAS WITHOUT A PROPER FACTUAL BASIS.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, we owe no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

In Point I, defendant argues that he was denied the effective assistance of PCR counsel because counsel failed to properly and effectively argue defendant's claims respecting ineffectiveness of trial counsel. Rather than view those claims through the prism of PCR's counsel's alleged deficiencies, we choose instead to directly consider defendant's claims about trial counsel's ineffectiveness.

As to defendant's claim that trial counsel did not properly explain the plea agreement to him, even on appeal, defendant presents the same generalities that the PCR judge deemed insufficient. He asserts on appeal that he failed to understand the plea agreement, and "was either misled or misinformed by his [trial] attorney about material elements of his plea negotiations." From that point, defendant argues only that PCR counsel should have presented certifications to "explore[] the nature of the defendant's misunderstanding about the indictment." Such certifications "should have addressed defendant's misperception about an amendment of the first-degree robbery charge to a second-degree offense prior to the plea hearing and why the defendant misunderstood the plea offer." Defendant urges us to remand the matter to the PCR court for an evidentiary hearing. We decline to do so.

A defendant must do more than present bald assertions without evidentiary support. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Because defendant asserts only vague generalizations, and has failed to specify on appeal the precise failings of trial counsel that he claims constituted ineffective assistance of counsel, the trial judge correctly rejected his claim that counsel's performance was defective at the time of defendant's entry of his guilty plea. See Id. at 170-71.

The same is true of defendant's contention that trial counsel was ineffective because he failed to provide defendant with discovery. Defendant must specify on appeal the portions of discovery that trial counsel failed to give him and he must explain how, if he had been provided with such material, he would have rejected the plea and taken the matter to trial. See Ibid. Finally, defendant's argument that his negotiated plea was the result of improper and unprofessional pressure exerted upon him by trial counsel is likewise unsupported on appeal by anything other than generalities. Cummings requires more. Ibid. Moreover, defendant's claim on appeal that he was pressured into pleading guilty is belied by his sworn testimony during the plea colloquy that no one had pressured him into pleading guilty, and his attorney had answered all of his questions to his satisfaction. Thus, there is no merit to any of the claims defendant advances in Point I.

In Point II, defendant maintains that appellate counsel provided ineffective assistance when he argued before the ESOA panel. In particular, defendant maintains that in the course of counsel's argument of an inadequate factual basis for defendant's plea, counsel commented that he "guess[ed] [defendant] had . . . feigned having a gun under his shirt. No gun was found." Defendant argues before us that nothing in the plea colloquy before the Law Division supported counsel's prejudicial remark before the ESOA panel about defendant feigning possession of a gun.

In making that remark, counsel was apparently referring to defendant's acknowledgment during the plea colloquy that in the course of committing a theft, he put the victim "in fear of immediate bodily injury." Our review of the brief ESOA transcript leads us to conclude the judges hearing that appeal were satisfied that defendant presented a sufficient factual statement to justify his plea of guilty to second-degree robbery, and that the judges' determination of that issue was not affected in the slightest by counsel's comment about the "feigned" gun. Thus, this contention lacks merit.

We turn to Point IV in which defendant maintains that his sentence was illegal and must be vacated. In particular, he maintains that trial counsel was ineffective because he did not advance any mitigating factors at the time of sentencing and because the sentencing court "gave too much weight to the aggravating factors while improperly de-emphasizing the mitigating factors." These claims lack merit for several reasons.

First, defendant's argument that the sentence was "illegal" is, in actuality, an argument that the sentence was excessive. See State v. Murray, 162 N.J. 240, 246-47 (2000). Defendant's claim of an excessive sentence was already rejected by the ESOA panel. Moreover, complaints about the weight assigned to certain aggravating and mitigating factors is a challenge to an excessive sentence, and is not cognizable in the context of a PCR proceeding. R. 3:22-2(c); see also State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

As to the claim that trial counsel was ineffective for failing to vigorously advocate for defendant at the time of sentencing, this claim is meritless. Defendant does not even state which mitigating factors he believes trial counsel should have advanced on his behalf. Moreover, defendant's contention that trial counsel did not provide effective assistance at the time of sentencing is belied by the trial record, which contains defense counsel's statement that "Mr. Dunlap has a limited criminal history, with one serious offense . . . . [t]hat . . . occurred over ten years ago; he was a juvenile then." Consequently, we are satisfied that trial counsel did provide effective assistance to defendant at the time of sentencing.

In Point V, defendant maintains that the trial court improperly accepted defendant's guilty plea without a proper factual basis. This was the very argument defendant advanced during the ESOA hearing and which we rejected at that the time. A defendant is prohibited from re-litigating in the PCR context those claims that have been rejected on direct appeal. R. 3:22-5. Thus, because none of defendant's claims have merit, the judge did not err by denying defendant an evidentiary hearing. See State v. State v. Preciose, 129 N.J. 451, 462 (1992). We thus reject the argument defendant advances in Point III. There being no merit to any of defendant's claims, we affirm the denial of his PCR petition.

Affirmed.

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A-4257-06T4

November 5, 2008