STATE OF NEW JERSEY v. LINWOOD WALKER, JR

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0601-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

LINWOOD WALKER, JR.,

Defendant-Appellant.

November 17, 2010

 

Argued October 27, 2010 - Decided

 

Before Judges R. B. Coleman and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-00760.

 

Alan Dexter Bowman argued the cause for appellant.

 

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Linwood Walker, Jr., appeals from an order

of the Law Division denying his (1) application for post-conviction relief (PCR), (2) request for an evidentiary hearing, and (3) motion to vacate a guilty plea in which he asserted ineffective assistance of counsel. We affirm.

Defendant pled guilty to seven counts of a seventy-nine count indictment: third-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and -5(b)(1) (count 62); second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and

-5(b)(2) (counts 65, 68, and 74); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count 71); first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count 77); and first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count 79). In exchange, the State initially recommended a custodial sentence not to exceed twenty-five years with a twelve and one-half year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f). The Law Division imposed a lesser sentence of fifteen years incarceration with seven and one-half years of parole ineligibility.1

On appeal, defendant raises the following points:

POINT I: THE GUILTY PLEA MUST BE VACATED BECAUSE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL OR IN THE ALTERNATIVE REMANDED FOR A HEARING.

POINT II: THIS COURT MUST PERMIT APPELLANT TO WITHDRAW HIS PLEA OF GUILTY

 

Our review of the parties' arguments under the lens of the assembled record reveals that defendant was neither denied rights guaranteed to him by our federal and state constitutions nor otherwise entitled to an evidentiary hearing and post-conviction relief. There was no basis to vacate defendant's guilty plea, and accordingly, we reject defendant's multi-faceted arguments in affirming the Law Division.

I.

A brief procedural history will put this matter into perspective. In June 2004, a Morris County Grand Jury returned a seventy-nine count indictment against eighteen individuals relating to illicit drug trafficking. The indictment charged defendant with twenty counts involving drug transactions on several days in April, May, and August 2002.

On July 18, 2005, defendant entered a plea of guilty to the seven counts for which he was ultimately sentenced, and provided a factual basis to support each crime. Although the plea agreement did not require defendant's cooperation beyond "testifying truthfully against any co-[defendants]," it appears that defendant's sentencing was deferred in order to accommodate his efforts to cooperate with the New Jersey State Police.

A few months later, however, through new counsel, defendant sought to withdraw his guilty plea, arguing in a motion that at the time he entered his guilty plea he was misled by the Morris County Prosecutor's Office about how it would view his cooperation with law enforcement. Separately, defendant also moved to compel discovery from the Morris County Prosecutor's Office relating to its "procedures, policies and format to be followed by members of that office when entering into a cooperation agreement with a defendant who is pleading guilty to criminal charges."

For reasons that are not readily apparent in the record, the State's response to defendant's applications was not filed until more than one year later, on August 1, 2007.2 Another nine months inexplicably elapsed before the motion was considered by the court as part of an evidentiary hearing. On April 24, 2008, the Law Division denied the motion.

On June 19, 2008, appellant appeared for sentencing. The State agreed to reduce its initial recommendation to fifteen years incarceration with seven and one half years of parole ineligibility. The court imposed a sentence consistent with the State's recommendation. A direct appeal was not pursued.

Instead, just four months later, on October 14, 2008, defendant (through his third and present counsel) filed this PCR and a second motion to withdraw his guilty plea, both based upon alleged ineffective assistance of counsel. On September 10, 2009, Judge Salem V. Ahto denied both applications. This appeal followed.

II.

When a defendant claims a deprivation of the effective assistance of counsel, courts apply the Strickland/Fritz3 paradigm:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

 

 

 

 

reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 

[Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]

 

This same framework is applied when considering whether an individual has been deprived of the state constitutional guaranty of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant asserts that his guilty plea was not intelligently and voluntarily tendered because he was misinformed by his then-defense attorney of his right to challenge key evidence relied on by the prosecution. The factual essence of defendant's claim is without competent evidence in the record, except for a one-page unsigned affidavit. Notwithstanding the crucial ingredient of

evidence not argument in order to support a PCR, we will address defendant's advocacy raised in his brief, recognizing that no affidavit, certification, or other competent evidence exists to support the vast majority of defendant's factual assertions. State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999) (noting that a PCR applicant must do more than make bald assertions that he was denied the effective assistance of counsel); see also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).

A.

In particular, defendant claims that counsel misinformed him of his right to request certain wiretap recordings, which he believed did not exist. According to defendant, counsel told him that no motion could be filed to either demand production of the tapes or challenge their existence because the State was entitled to protect the identity of its confidential witness. Defendant now maintains not by way of affidavit, but in his brief that he was unable to intelligently waive his right to file a suppression motion, motion to dismiss, or proceed to trial. Had his initial attorney made a suppression motion when defendant requested he do so, defendant's brief claims he would have rejected the plea pending disposition of the motion. We note that initial defense counsel did file a motion to suppress evidence and for other discovery relief on November 8, 2004, shortly after defendant was indicted and before his subsequent plea of guilty. Although that motion is not precisely the type of application that defendant now claims should have been filed, defendant was not left directionless by his first attorney during the outset of the prosecution. It appears that the motion was withdrawn when defendant entered his guilty plea eight months later.

The State submits that defendant is mistaken as to the alleged non-existence of the tape recordings and further posits that counsel's decision to forgo additional motions was a strategic decision supported by the record. The PCR court found that with regard to missing tapes, defendant had presented no evidence to support his belief that the transactions were fabricated. The court further perceived defense counsel's deferment in pursuing the discovery issue and suppression motion to be a tactical decision, and it was reasonable for counsel to suspend further motion practice until defendant received a plea offer from the State.

Defendant argues that his initial defense attorney should have actively sought to suppress the tape recordings of conversations intercepted on May 1, 2002. The PCR court found that the May 1, 2002, transaction actually involved one of defendant's associates who was standing in for defendant while he was on vacation. Accordingly, the tape recording that defendant claims is missing or non-existent from May 1, 2002, did not directly involve him. Likewise, the PCR court found that no tape recording was made on May 30, 2002, rejecting defendant's argument that because the tape recording could not be located, the underlying transaction never occurred.

A failure to file a suppression motion in and of itself is not per se ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 597 (2002). "Additionally, when counsel fails to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). Defendant has not surmounted those formidable thresholds. Moreover, since the May 30, 2002, transaction was observed by a surveillance team and memorialized in a report, the State's inability to produce the putative tape recording is inconsequential in the overall prosecution.

Finally, in respect to the putative tape recordings of both dates, it is well-established that counsel's "'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable'" when assessing the reasonableness of counsel's performance. Petrozelli, supra, 351 N.J. Super. at 22 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Moreover, "strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." Petrozelli, supra, 351 N.J. Super. at 22.

Here, the assistant prosecutor informed defendant that he could plead to a lesser sentence if he forewent additional motions, and there was no competent evidence to the contrary. Thus, the PCR court was correct in finding that counsel's decision to forego discovery and suppression motions while awaiting an offer from the State evidences a plausible defense strategy and shows that defendant was afforded competent representation leading up to his plea of guilty.

Even if counsel's failure to investigate the existence of such tape recordings fell outside the range of competence demanded of attorneys in criminal cases, we find no "reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). The defendant states in his brief that had counsel "provided accurate advice, [he] would have rejected the plea at least until after the suppression motion." However, there is no suggestion on the part of defendant that he would have proceeded to trial had only these motions been made.

 

B.

Defendant also argues that defense counsel was ineffective for failing to challenge several conspiracy counts set forth in the indictment. In particular, he submits that some of the counts should have been dismissed because a purchaser-seller relationship, and not a conspiracy, existed. Similarly, he now avers that certain conspiracy counts should have been consolidated. These deficiencies, defendant claims (without a shred of affidavit), affected his decision to plead guilty, rather than go to trial or negotiate a more favorable agreement.

The PCR court rejected defendant's arguments. The court began by noting that defendant's reliance on State v. Roldan, 314 N.J. Super. 173, 189 (App. Div. 1998) was misplaced, because New Jersey recognizes the unilateral approach to conspiracy, unlike federal courts. The Law Division also rejected defendant's argument that the transactions were nothing more than agreements to buy contraband. As such, the court concluded that defendant's initial representation was not deficient for failing to object to the conspiracy counts in the indictment.

Defendant cites Roldan for the proposition that the indictment's transactions presented a purchaser-seller relationship only, and not a conspiracy. We conclude that the facts of Roldan actually support defendant's conspiracy conviction rather than erode confidence in the supposed deficiencies of his first attorney. In Roldan, the defendant was found to be not just a purchaser of illegal narcotics, "but rather a participant in a complex agreement to facilitate the . . . distribution of a very substantial amount of drugs." Roldan, supra, 314 N.J. Super. at 184. Here, not only the discovery materials provided by the State, but also the proofs established through defendant's plea allocution, demonstrated that he was not a mere drug seller, but a co-conspirator engaged in the distribution of cocaine throughout Morris, Warren, Passaic, Essex, and Union counties with multiple other individuals. The PCR court pointed to evidence of sales made by defendant on a credit basis, a pattern of repeated transactions between defendant and his co-conspirators, the high volume of drugs involved in various transactions, the physical steps taken by defendant to avoid detection, and a "veiled threat" made to one of the confidential informants by defendant.

Due to the overwhelming evidence tending to support the legal theory of a conspiracy contained in the indictment, initial defense counsel was not deficient for failing to challenge those conspiracy counts. Moreover, we do not find a "reasonable probability that, but for counsel's errors," defendant would have proceeded to trial. DiFrisco, supra, 137 N.J. at 457.

C.

Finally, defendant asserts by way of his brief that counsel should have sought consolidation of the three conspiracy counts in the indictment to prevent multiplicity. See State v. Evans, 189 N.J. Super. 28, 31 (Law Div. 1983) ("'Multiplicity' occurs when a single offense is charged in several counts of an indictment."); State v. DeCree, 343 N.J. Super. 410, 415-16 (App. Div. 2001) (distinguishing between charging "one vast conspiracy" versus several smaller conspiracy depending on the facts of the case). Defendant's argument is misplaced.

In Evans, the Law Division held that a defendant's indictment containing multiple counts of theft for a single transaction be amended to comport to the requirements of N.J.S.A. 2C:20-2, a statute specific to the consolidation of theft offenses. Evans, supra, 189 N.J. Super. at 32. In that case, the State "fractionalize[d] a particular criminal transaction into distinct acts" in the indictment, resulting in multiple counts attributed to a single transaction. Id. at 30, 32.

Here, the State charged defendant with the separate offenses of possession of controlled dangerous substances, possession of controlled dangerous substances with the intent to distribute, and distribution of controlled dangerous substances on multiple occasions. The conspiracy statute specifically states that "[i]f a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." N.J.S.A. 2C:5-2(c). Thus, if there are multiple agreements, more than one conspiracy charge is appropriate. The State asserted ample proofs that defendant's engagement in a drug distribution network involved multiple individuals, giving rise to numerous agreements and transactions. We consider the instant circumstances entirely distinguishable from Evans, where a single theft transaction was fragmented into multiple putative crimes.

Moreover, N.J.S.A. 2C:1-8(a) permits the State to prosecute a defendant for multiple offenses, when the same conduct constitutes more than one offense. That statute only prohibits convicting a defendant of more than one offense, in four particularized circumstances. Ibid. Here, defendant was initially charged with three conspiracy counts. Pursuant to his plea agreement, however, defendant pled guilty to only one conspiracy count, second-degree conspiracy to distribute cocaine. Because N.J.S.A. 2C:1-8 is concerned with convictions for multiple offenses arising out of a single criminal act, and defendant was only convicted of one conspiracy count, he suffered no prejudice and no error occurred.

Even if the first defense attorney erred in not moving to consolidate the conspiracy counts in the indictment prior to the plea proceeding, his decision is a strategic decision best left to professional judgment. The State informed defendant of two possible pleas: one would be available if he forewent additional motions and the other would be offered if he pursued those motions. Therefore, for the same reasons that defendant was not prejudiced by his attorney's choice to forego the discovery and suppression motions, the decision against moving to consolidate the conspiracy counts prior to a plea offer from the State was not unreasonable.

D.

Although defendant did not suffer ascertainable ineffective assistance of counsel, we nevertheless will briefly review his claim that he was entitled to withdraw his guilty plea pursuant to the "correct a manifest injustice" standard of Rule 3:21-1. Although bottomed upon the moribund claim of receiving misadvice even going so far as to call it "affirmative misadvice" defendant also advances the argument that his plea was involuntary and constituted a manifest injustice. We are unable to agree.

In State v. Slater, 198 N.J. 145 (2009), the Supreme Court held that a trial judge must apply a four-prong test in the evaluation of a defendant's motion to withdraw a guilty plea. The factors to be considered and balanced are 1) whether defendant has unequivocally asserted his innocence and presented specific, potentially plausible facts, and not simply a bold assertion of innocence; 2) the nature and strength of defendant's reasons for withdrawal; 3) whether the conviction resulted from a negotiated or a non-negotiated plea of guilty (the former favoring the State); and 4) whether withdrawal would result in an unfair prejudice to the State or unfair advantage to the accused. Id. at 157-58.

The application of the Slater factors is clear. In particular, defendant has not asserted that he is innocent of the charges. His brief makes the naked statement, without a scintilla of factual support, of "a colorable claim of innocence of those fictitious transactions and seeks to effectuate his Fourth Amendment rights." At the hearing on defendant's first motion to withdraw his guilty plea, the judge noted, "[t]hroughout [the] proceeding, the defendant, even with those adjournments, has not once raised the claim of innocence." Similarly, the PCR court found defendant had not provided any "facts or credible evidence" to support his claim of innocence. Thus, the first Slater factor favors the State.

The third factor, namely the existence of a plea bargain, clearly favors the State. The fourth factor favors defendant because withdrawal of the plea agreement would not result in unfair prejudice to the State; the passage of time is not a likely detriment to the State's case any more than it might already have been weakened by the passage of six years between the time of defendant's arrest in August 2002 and November 2008, when defendant entered his plea of guilty.

We lastly turn to the second factor under Slater, which is "the nature and strength of defendant's reason for withdrawal." Ibid. As we have already concluded, the nature and strength of defendant's reasons for withdrawal (ineffective assistance of counsel) are feeble. Our Supreme Court has identified several circumstances that warrant withdrawal of a guilty plea. See id. at 159-60. They include when the court or prosecution misinforms defendant about a material element of the plea, when the defendant does not understand the penal consequences of the plea, when assurances in the plea are not carried out, or when defendant asserts a valid defense along with a justifiable basis for why the defense was not raised earlier. Ibid. Here, defendant understood the consequences of his plea and was not coerced into pleading guilty. In his plea hearing, defendant testified under oath that he was satisfied with counsel's performance, raising no indication that he had been pressured to plead guilty or that he refuted the evidence against him. Thus, defendant's reasons for withdrawal militate against reversing the PCR court's findings. Judge Ahto's denial of the PCR application and the motion to vacate the guilty plea was proper.

Affirmed.

 

1 The State revised its sentencing recommendation to an aggregate term of incarceration of fifteen years, with a minimum term of seven and one-half years, due to defendant's post-plea cooperation with the New Jersey State Police.

2 Although it is not material to our opinion, we assume that the delay was not engendered by defendant's cooperation with the State Police. Although sentencing was initially scheduled for August 26, 2005, and the State consented to seven adjournments so that defendant could continue to offer his cooperation to the New Jersey State Police, the State claims that defendant's cooperative relationship with law enforcement ended in February 2006, right before he filed his motions.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).