STATE OF NEW JERSEY v. KHALIF FRANKLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1308-07T41308-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KHALIF FRANKLIN,

Defendant-Appellant.

________________________________

 

Submitted: January 27, 2010 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indict ment Nos. 99-07-2572, 99-08-2658, 99-09-2981, and 99-10-3041.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Andrew J. Shaw, Desig nated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Khalif Franklin appeals from the denial of his petition for post-conviction relief (PCR) from four judgments of conviction dated April 14, 2000, on which the sentencing judge imposed an aggregate sentence of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6. Defendant pled guilty under Indictment No. 99-07-2572 to first-degree robbery, contrary to N.J.S.A. 2C:15-1. Under Indictment No. 99-08-2658, defendant pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1. Under Indictment No. 99-09-2981, defendant pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. Finally, under Indictment No. 99-10-3041, defendant pled guilty to two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1; and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. On direct appeal from the four judgments of conviction, we affirmed by order dated June 5, 2002. We now affirm.

Defendant executed his first PCR petition on March 26, 2004. He certified that his assigned public defender never visited him during the nine months pre-plea that he was in Essex County Jail and Caldwell Jail. He only saw his attorney in the courtroom or courtroom holding cell on status conference dates and was never given a chance to speak with his attorney privately. Further, his attorney never gave him copies of the discovery for any of his cases even though defendant filed a formal motion in December 1999 to compel his attorney to provide him with the discovery. Additionally, defendant's attorney never gave him evidence from any investigation he conducted on any of his cases. He certified that if he had been given an opportunity to review discovery and consult with his attorney, he would have taken all of the cases to trial and not accepted the plea bargain even though he was facing much greater prison time. In his brief in support of PCR, defendant asserted that he had been denied the effective assistance of counsel.

The facts relevant to these claims are gleaned from the plea hearing on January 31, 2000, and the sentencing hearing on April 14, 2000. Defendant first testified that he was in Irvington on February 15, 1999, when he stopped his van, got out, and took a gold chain from the neck of one Natalie Barrett, whom he did not know, striking her in the arm with a handgun. Defendant was nineteen years old at the time. He did not have permission to have a handgun and knew it was illegal to possess a gun without a license. He had the handgun in his possession and it was operable. Defendant next testified that on March 21, 1999, he was in Newark when he approached two juveniles, S.M. and R.W., whom he did not know, with a handgun in his possession. It was his intent to rob them and he took a coat from one of the juve niles. On March 25, 1999, in Newark he approached one Howard McClain, whom he did not know, and robbed him of five dollars, brandishing the operable handgun he had in his possession. Finally, on April 4, 1999, in Newark he and other perpetrators approached one Terrell Tribbet, assaulted him, and robbed him of $5300.

On questioning from the court, defendant testified that he understood he had a right to trial by jury; to confront wit nesses; and to remain silent, which would not be used against him. He understood that, by pleading guilty, he was waiving these rights. He admitted he initialed the pages on the plea form and signed his name on pages four and five. He admitted he went over the form with his attorney and that the only represen tation made to him was that the judge was inclined to sentence him to fifteen years rather than the twenty years being recom mended by the State. He denied that anyone had forced him to plead guilty or made any threats against him. He was pleading guilty of his own free will and was satisfied with the services of his attorney. The judge then reviewed the pleas and elicited defendant's comprehension of his penal exposure if he tried the cases and his penal exposure, including agreed restitution, if he pled guilty. He acknowledged that his sentence was subject to NERA and the Graves Act and would not be eligible for parole for twelve years and some months. The judge accepted his plea.

On February 14, 2000, defendant filed a pro se motion to withdraw his pleas on all four indictments. That motion was argued on defendant's sentencing date. His assigned public defender advised the judge that defendant's grandfather had retained private counsel to represent defendant if his motion was granted. He advised the judge that defendant had sought an extension of time on January 31, 2000, to confer with his fam ily, but the request was denied because that date was a trial date on one of the four indictments. As a result, defendant had to take the plea offer or proceed to trial. A day or two after the plea was entered, defendant's father called counsel and stated if defendant had had an opportunity to speak with his family, he might not have accepted the plea. Counsel urged, in light of defendant's age and the penal exposure, it would not have been unfair to allow defendant to confer with his family. As a result, he urged that defendant should be allowed to withdraw his plea.

Defendant's private attorney then addressed the judge and stated that he had spoken with defendant that morning and defen dant definitely wanted to retract his plea and proceed to trial. Counsel sought an opportunity to go over the plea transcript, confer with the family, and have an opportunity to properly pre sent to the judge all of the facts concerning defendant's desire to withdraw his plea and the pressures that he may have been under at the time.

The judge observed that the indictment in September 1999 gave defendant plenty of time to confer with his family. He found that defendant was not pressured into entering the plea and understood his rights. He found that defendant had not pre sented any fair and just reasons for withdrawing his plea; all the judge had heard was that defendant changed his mind. There was no claim the plea agreement was faulty, that defendant was coerced, or anything of the like. There was no evidence the plea was not knowing and voluntary. Further, the case had been carried several times to allow defendant to confer with his attorney. As a result, the judge denied defendant's motion to withdraw his plea. Nonetheless, he gave counsel an opportunity to place other factors on the record with additional papers, but stated he was going to proceed to sentencing. No such additional papers were filed.

Defendant was given a credit for 334 days time served and was sentenced to fifteen years in prison, as described above. The judge found aggravating factors three, the risk of reof fense; six, the extent and seriousness of defendant's prior convictions; and nine, the need for deterring defendant and oth ers. The judge found no mitigating factors and concluded that the aggravating factors outweighed the nonexistent mitigating factors. He imposed two fifteen-year concurrent terms subject to NERA on the first-degree robbery convictions under Indictment Nos. 99-07-2572 and 99-08-2658 with three years of parole super vision upon release. He imposed three four-year terms on the three remaining first-degree robbery convictions under Indict ment Nos. 99-09-2981 and 99-10-3041 to run concurrently with each other and the two fifteen-year terms. Finally, he imposed two four-year terms subject to the Graves Act on the second- and third-degree weapons offenses under the latter two indictments, also to run concurrently with each other and the other four- and fifteen-year terms.

New private appellate counsel argued on appeal that defen dant had never had the opportunity of probation, parole, or any other programs that may have rehabilitated him, and these were his first adult convictions. He argued that defendant should have been sentenced as a second-degree offender because he came from good grandparents. He urged that the judge erred in failing to find mitigating factors, because defendant had a drug problem, he was a youthful offender, and had had no prior contact with the adult criminal-justice system. We affirmed defendant's convictions and sentences.

Defendant's timely PCR petition followed. His PCR counsel submitted a brief to which was attached a supplemental certifi cation from defendant. Defendant urged that his plea counsel was ineffective because he did not adequately confer with defen dant before defendant accepted the plea requiring a significant amount of time in prison. Defendant was in jail for nine months before he ever saw his assigned counsel, except in the holding cell and the courtroom during status conferences. Defendant never had an opportunity to speak privately with his counsel or read and review the discovery for any of his indictments. He never saw the result of any investigation or was told that any investigation took place, nor could it be ascertained because the public defender's file was missing, requiring an evidentiary hearing. Defendant urged that he was prejudiced by his coun sel's ineffectiveness because he was deprived of the opportunity to personally review his discovery and speak with a competent and informed attorney who had thoroughly investigated his vari ous cases. Finally, defendant urged that his appellate counsel was ineffective for failing to raise these issues on direct appeal.

At the PCR hearing on August 13, 2007, the judge found that counsel could hardly be found ineffective when he negotiated a plea that resulted in an aggregate sentence of fifteen years when defendant faced 120 or 130 years with an eighty-five percent parole disqualifier. He concluded that the purpose of an evidentiary hearing was not to determine what defendant and his counsel discussed in pri vate. According extreme deference to plea counsel's perform ance, and given the results he obtained, the judge concluded that the conversations or lack of conversations were a trial strategy because the result was so favorable. The judge also found defendant suf fered no prejudice even if his counsel was ineffective because he could not possibly have obtained a better result from four trials. As a result, the judge determined no evidentiary hearing was required and denied PCR. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - DEFENDANT'S PCR PETITION SHOULD BE GRANTED BECAUSE THE PLEAS WERE NOT ENTERED INTO KNOWINGLY AND VOLUNTARILY.

POINT II - THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION BECAUSE HIS TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT. IN THE ALTERNATIVE, BECAUSE DEFENDANT PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY HEARING.

A. Defendant's Trial Counsel Pro vided Ineffective Assistance Of Counsel.

B. Defendant's Appellate Counsel Provided Ineffective Assistance Of Counsel.

C. Cumulative Errors by Defen dant's Trial And Appellate Counsel Amounted To Ineffective Assistance Of Counsel And The Denial Of A Fair Trial.

[D.] Alternatively, The PCR Court Erred In Failing To Conduct An Evidentiary Hearing On Defendant's Claims.

POINT III - DEFENDANT'S PCR PETITION SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.

A. Defendant's PCR Petition Is Not Time-Barred.

B. Defendant's PCR Petition Is Not Procedurally Barred By R. 3:22-4 Or R. 3:22-5.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

We begin with defendant's first claim on appeal, which is that his plea was not knowing and voluntary because plea counsel failed to adequately confer with him before he entered the pleas and never came to visit him in jail, counsel limiting his contact with defendant to conferences in the courtroom holding cell and the courtroom. Also, plea counsel never provided defendant with copies of the discovery for any of the cases despite defendant filing a motion to compel counsel to do so. Finally, plea counsel never provided defendant with the fruits of any investigation allegedly conducted by him. As a result, he urges that it was impossible for him to enter into a plea bargain knowingly, voluntarily, and intelligently.

This claim is essentially seeking review of the denial of defendant's motion to withdraw his plea. PCR is not "a substi tute for appeal from conviction" of a crime. R. 3:22-3; State v. McQuaid, 147 N.J. 464, 483 (1997). Furthermore, "[a]ny ground for relief not raised in . . . the proceedings resulting in the conviction . . . or in any appeal taken in any such pro ceedings is barred from assertion in a proceeding under this rule . . . ." R. 3:22-4. Of course, Rules 3:22-3 and -4 would not bar review of a PCR claim of ineffective assistance of ap pel late counsel in failing to raise this issue on appeal, State v. Preciose, 129 N.J. 451, 459-60 (1992) (citing R. 3:22-4(c)), and we will consider this issue to the extent it is raised in defendant's claims of ineffective assistance of counsel. We also note that defendant may not withdraw his plea without a claim of innocence. State v. Slater, 198 N.J. 145, 157 (2009).

In his second point on appeal, defendant contends appellate counsel provided ineffective assistance to him causing him prejudice. In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, a defendant must first demonstrate that counsel committed serious professional errors. Ibid. Second, a defendant must demonstrate that the professional errors prejudiced him to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" stan dard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To make out a prima facie claim for PCR when a petitioner claims his counsel inade quately investigated the case, "he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant has not done so here and he has thus failed to make out a prima facie claim of ineffective assistance of counsel in this respect.

Turning to the failure to provide defendant with discovery and the fruits of any investigation and to counsel's failure to adequately confer with defendant, defendant must satisfy a more specific form of the Strickland/Fritz test. The defendant must show: "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases' . . . and (ii) 'that there is a reasonable probability that, but for coun sel'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) (citations omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). We are not required to

approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insuffi cient showing on one. In particular, [we] need not determine whether counsel's per formance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

[Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.]

Although defendant claims that he would not have pled guilty and would have gone to trial, the PCR judge clearly dis credited that claim in light of the extensive penal consequences defendant faced on the four indictments. The indictments would have been tried individually, potentially leading to more severe sentencing on the second, third and fourth convictions for first-degree rob bery, including the risk of being extended-term eligible as a repeat offender. Without a claim of innocence, no reasonable person would have rejected a fifteen-year term. We are, there fore, satisfied that defendant was not prejudiced by the ineffective assistance of any counsel.

 
Affirmed.

Neither party has included a copy of this motion in the appendices on appeal.

N.J.S.A. 2C:44-1a(3).

N.J.S.A. 2C:44-1a(6).

N.J.S.A. 2C:44-1a(9).

N.J.S.A. 2C:44-1b.

This supplemental certification is not in the record on appeal.

(continued)

(continued)

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A-1308-07T4

March 15, 2010