STATE OF NEW JERSEY v. EDDIE NIXON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4820-07T44820-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE NIXON,

Defendant-Appellant.

____________________________________

 

Submitted August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 90-03-00161.

Eddie Nixon, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eddie Nixon appeals from a post conviction order denying his request to withdraw his guilty plea. Specifically, defendant argues:

POINT I

DEFENDANT'S PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE HE WAS COERCED BY COUNSEL INTO PLEADING GUILTY THEREFORE HE SHOULD BE PERMITTED TO RETRACT HIS PLEA.

POINT II

DEFENDANT'S 1990 GUILTY PLEA SHOULD NOT HAVE BEEN USED TO ENHANCE DEFENDANT'S PRESENT SENTENCE, AS HE WAS NEVER ADVISED OF HIS CONSTITUTIONAL RIGHTS [] TO A JURY TRIAL, TO CONFRONT HIS ACCUSERS, AND HIS PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE DURING SENTENCING AND DURING HIS ORIGINAL POST-CONVICTION APPLICATION.

POINT IV

DEFENDANT['S] PLEA SHOULD BE WITHDRAWN BECAUSE OF [THE] DE MINIM[U]S DOCTRINE AND ALL EVIDENCE SUPPRESSED [AS] COUNSEL WAS INEFFECTIVE.

We affirm.

On March 7, 1990, defendant entered a guilty plea pursuant to the terms of a plea agreement to one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). Defendant attempted to return six vials of cocaine he had previously purchased. When he confronted the dealer to challenge the quality of the drugs, he was arrested.

At the time defendant entered his plea, the substance seized had not yet been tested. His plea was conditioned on the lab report confirming the substance was, in fact, cocaine. The court stated:

So that if we have to send out any ki[n]d of notice, you'll get it but you have to know that you have to be back here on April the ninth for sentencing.

By that time we should have the lab results. If it's not cocaine, we'll take care of whatever has to be done. If it is cocaine, we'll take care of sentencing, okay?

On April 9, 1990, the State reported the lab results were positive, and the court imposed a sentence of three years probation along with applicable fines and assessments, as recommended in the plea agreement.

Defendant filed a motion for post conviction relief (PCR), which was denied on October 22, 1999. The instant motion to withdraw his guilty plea was denied on May 23, 2008.

Defendant suggests his plea was neither knowingly nor voluntarily entered because it was coerced by counsel. In support of his request, defendant suggests he did not believe the substance was cocaine and he was under the influence of drugs when he entered his plea.

Our review of the record satisfies us that before accepting defendant's plea, the trial court followed the dictates of Rule 3:9-2. State v. Slater, 198 N.J. 145, 155 (2009). In a detailed colloquy with defendant, the trial judge sought a factual basis for entry of the plea. She also confirmed defendant's knowledge and understanding of the details and consequences of a guilty plea, including waiving the right to a Grand Jury presentment and indictment, as well as a jury trial. Further, the court was assured by defendant that he was fully aided by counsel and entered his plea voluntarily. In fact, defendant's challenge that the substance was not cocaine was embodied in the conditions of the plea itself. A finding of defendant's guilt was dependent on a positive laboratory test that the powder he possessed was cocaine. We have no doubt defendant's plea was made under circumstances showing "it was made truthfully, voluntarily and understandingly." State v. Herman, 47 N.J. 73, 76-77 (1966).

We conclude this challenge, made eighteen years following defendant's plea, is meritless. Defendant's broad claims of coercion and alleged incapacity are belied by his testimony when he entered the plea. We determine no "manifest injustice" resulted in the denial of his motion to vacate the plea. R. 3:21-1; Slater, supra, 198 N.J. at 156.

Defendant's second argument exposes the true basis for this filing. He maintains that in imposing a sentence for a subsequent conviction, the court "incorrectly" used this conviction to enhance that sentence. Defendant acknowledges counsel's failure to advise of potential extended term exposure in the event of commission of a future offense is insufficient to vacate a plea. State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999). Yet, he argues his plea, and his conviction should be vacated because he was not fully informed of his constitutional rights prior to offering his plea.

We find no support for this contention in the record and conclude defendant's argument lacks merit. R. 2:3-11(e)(2). Defendant's additional claim that PCR counsel was ineffective for failing to raise the ineffective assistance of trial counsel in this regard is untimely and barred by Rule 3:22-12.

In Point III, defendant challenges the effectiveness of counsel who provided representation in his subsequent conviction. That matter is unrelated to the scope of this appeal and will not be addressed. We nevertheless note, defendant's claims were expressly adjudicated on appeal and in a subsequent PCR petition filed after that conviction.

Defendant's final challenge asserts the ineffective assistance of trial and PCR counsel in this matter. Focusing on the lab report, confirming the substance seized was cocaine, defendant lists the challenges he would advance to attack that report in the event of trial.

In order to establish ineffective assistance of counsel, a defendant must prove: 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid.

We determine defendant fails to articulate a prima facie case of ineffective assistance of trial or PCR counsel. His plea was conditioned on the lab confirmation that the substance was cocaine -- nothing more. Defendant could have sought withdrawal of his plea upon receipt of the testing results and mounted then the attack he now articulates. He did not. At this point in time, his claim that counsel failed to do so are untimely. R. 3:22-12(a).

A defendant is afforded five years from the date of the actual entry of the judgment of conviction to file a petition for PCR relief. In this case, defendant's judgment of conviction was entered on April 9, 1990. Defendant filed his PCR petition nine years later stating no reason for excusable neglect. Any claims challenging the representation of trial or PCR counsel are, therefore, barred. Ibid.

For completeness, we mention the four-pronged balancing test utilized when considering a motion to withdraw a guilty plea. Slater, supra, 198 N.J. at 160. Applying the standard enunciated in Slater, we determine defendant failed to assert a colorable claim of innocence or present strong reasons supporting withdrawal of his plea. Additionally, he accepted a beneficial plea bargain. Finally, withdrawal at this late date could certainly result in unfair prejudice to the State, favoring the finality of this conviction.

 
Affirmed.

(continued)

(continued)

7

A-4820-07T4

August 26, 2009