STATE OF NEW JERSEY v. SHAWN E. FOYE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0457-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN E. FOYE,

Defendant-Appellant.

________________________________________________________________

November 29, 2011

Submitted November 1, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-11-0731.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shawn E. Foye appeals from a March 31, 2010 Law Division order that denied his petition for post-conviction relief (PCR). On appeal, he raises the following claim:

I. THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT'S SENTENCING COUNSEL FAILED TO MAKE ANY ARGUMENT ABOUT THE HUGE DISPARITY BETWEEN THE DEFENDANT'S AND CO-DEFENDANT'S SENTENCE AND THIS FAILURE DEPRIVED THE DEFENDANT OF A FAIR SENTENCING HEARING AND LED THE COURT TO IMPOSE A SHOCKING AND UNREASONABLE SENTENCE.

We affirm.

I.

On November 15, 2005, a Cape May County grand jury returned a twelve-count indictment against defendant and co-defendant, Khalil McMichaels, charging them with second-degree burglary, conspiracy to commit burglary, first-degree robbery, conspiracy to commit robbery, possession of a handgun for an unlawful purpose, unlawful possession of a weapon, five counts of first-degree kidnapping, and one count of third-degree endangering the welfare of a child. The thirteenth count of the indictment pertained only to defendant, and charged him with fourth-degree certain persons not to possess weapons. A third individual, Antoinette Johnson, was charged with only two of the counts in the indictment, conspiracy to commit burglary and conspiracy to commit robbery.

The testimony presented to the grand jury established that Johnson owed defendant approximately $225 as a result of prior narcotics transactions. To satisfy the debt, she arranged for defendant to burglarize her cousin's home on Townbank Road in Lower Township. While visiting her cousin's home on August 25, 2005, Johnson deliberately left the back door unlocked when she departed, so that defendant could gain entry. She did not know defendant would be armed or that he would conceal his identity with a ski mask when he entered the home. Defendant, accompanied by McMichaels, entered the home armed with a handgun, and proceeded to apply duct tape to the residents' hands and ankles while pointing a gun at them. Before leaving, defendant and McMichaels stole money from a safe in a bedroom.

In December 2005, Johnson pled guilty to one count of conspiracy to commit robbery and agreed to testify against defendant and McMichaels. On March 24, 2006, pursuant to her plea agreement, Johnson was sentenced to a five-year term of imprisonment.

At approximately the same time, on February 24, 2006, defendant pled guilty to one count of first-degree robbery and agreed to testify against McMichaels. In return, the State agreed to recommend a sentence of ten years imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). The remaining charges would be dismissed. Defendant's sentencing was held in abeyance, as McMichaels's trial had not begun, and defendant was only entitled to the benefit of the plea agreement if he testified truthfully against McMichaels at trial.

On May 22, 2006, when defendant failed to appear for a hearing,1 the judge issued a bench warrant and ordered that defendant's bail be revoked and forfeited. In November 2006, the State moved to withdraw from its earlier plea agreement with defendant. The judge granted that motion.

On the same day the judge granted the State's motion to withdraw from its plea agreement with defendant, the State negotiated a plea agreement with McMichaels. Pursuant to that agreement, McMichaels pled guilty to one count of fourth-degree hindering apprehension, subject to an agreement that McMichaels testify against defendant at defendant's upcoming trial. McMichaels was eventually sentenced on June 29, 2007, to 448 days in prison, but because he had already served 448 days in custody, he was released on the day of sentencing.

On December 6, 2006, a few weeks after McMichaels entered his plea of guilty, defendant reconsidered his earlier decision to go to trial, and agreed to accept a revised plea agreement, which, like the earlier agreement, allowed him to plead guilty to one count of first-degree robbery; however, the State was no longer willing to offer him a ten-year NERA term. Because both Johnson and McMichaels had already pled guilty and the State no longer needed defendant's cooperation, the State was unwilling to offer defendant the same favorable plea agreement it had offered in February 2006. Instead, the State offered defendant a fifteen-year NERA term, accompanied by the dismissal of the remaining counts of the indictment. Judge Batten accepted defendant's negotiated plea of guilty, and on January 4, 2007, sentenced defendant to the fifteen-year NERA term that defendant had accepted on December 6, 2006.

At defendant's sentencing hearing on January 4, 2007, trial counsel did not urge the judge to undercut the plea agreement, nor did he argue that defendant's sentence was excessive when compared to the sentences imposed on co-defendants Johnson and McMichaels. At the time of sentencing, the judge found four aggravating factors: the nature and circumstances of the offense and whether the offense was committed in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); the risk defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of his prior convictions, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. The judge imposed the fifteen-year NERA term provided for by defendant's December 6, 2006 plea agreement.

Defendant did not file a direct appeal, but on July 16, 2009, filed the PCR petition that is the subject of this appeal. He asserted that trial counsel rendered ineffective assistance by asking the judge to impose the negotiated fifteen-year NERA sentence rather than presenting mitigating factors that would have justified a lesser sentence; and by failing to raise the issue of sentencing disparity based upon the far more lenient sentences imposed upon Johnson and McMichaels.

At the conclusion of oral argument on defendant's PCR petition, Judge Batten rendered a comprehensive and well-reasoned oral opinion denying the petition. The judge found that although defendant's sentence was considerably longer than the sentences imposed on his co-defendants, defendant's prior record was considerably more extensive than that of either McMichaels or Johnson, and thus his sentencing exposure was far greater. Moreover, the disparity between the sentences imposed on defendant and upon Johnson was justified by their vastly different levels of culpability, as Johnson's role was limited to conspiring to commit the robbery, but she never entered the home and did not participate in any of the violent crimes committed by defendant and McMichaels. The judge concluded that even if counsel was deficient for failing to raise the sentencing disparity issue, defendant was not prejudiced by that failure as the argument would not have been successful. On March 31, 2010, Judge Batten signed a confirming order denying defendant's PCR petition.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An appellate court will disturb a sentence imposed by a trial judge only in instances where the sentencing guidelines were not followed, the aggravating and mitigating factors found by the trial judge were unsupported by the evidence, or the judge's application of the sentencing guidelines rendered the sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Our review of sentencing decisions is extremely deferential, and only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" will we modify a sentence on appeal. Id. at 363-64.

Our scrutiny of a sentence will be enhanced, however, when a defendant presents a claim of sentencing disparity. As the Court observed in State v. Roach, 146 N.J. 208, 231-32 (internal citations and quotation marks omitted), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), "uniformity [is] one of the major sentencing goals, . . . [as] there can be no justice without a predictable degree of uniformity in sentencing. . . . 'The central theme' of our sentencing jurisprudence is the exercise by the courts of a structured discretion designed to foster less arbitrary and more equal sentences." The Court further observed that "[w]e must not forget that the driving force behind sentence reform was the tragic disparity in sentences inflicted upon defendants under the old model." Id. at 232 (quoting State v. Hodge, 95 N.J. 369, 379 (1984)) (internal quotation marks omitted). Unjustifiable disparity may invalidate an otherwise sound and lawful sentence. Ibid.

However, as the Court also observed in Roach:

A sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter. . . . The question therefore is whether the disparity is justifiable or unjustifiable.

[Id. at 232-33 (internal citations and quotation marks omitted).]

Applying the principles articulated in Roach, we are satisfied that the lack of uniformity between the sentences imposed on these three co-defendants was justifiable. We begin our analysis by focusing on the sentence imposed on Johnson. It is beyond dispute that her level of culpability was strikingly less than that of her two co-defendants. Unlike defendant and McMichaels, Johnson did not enter the home, she did not point a gun at its occupants, she did not apply duct tape to their hands and feet and did not threaten them. Her role was limited to suggesting that defendant enter the home, and leaving the back door unlocked so he could gain access. Johnson anticipated that defendant would burglarize the home, not that he would commit a violent armed robbery.

While Johnson's behavior is far from commendable, she participated in none of the violent crimes that defendant and McMichaels committed. Thus, her level of culpability was so different as to fully justify the lack of uniformity between Johnson on the one hand and her two co-defendants on the other. Ibid.

In urging us to reach a contrary result, defendant points to the fact that Johnson had two prior criminal convictions and had not led a blameless life. Because the record on appeal does not include the pre-sentence reports prepared for Johnson and McMichaels, our analysis of their prior criminal records is drawn entirely from Judge Batten's remarks during the PCR hearing. According to Judge Batten, Johnson was twenty-five years old at the time of sentencing and had two prior adult indictable convictions; however, without knowing whether the two sentences were imposed on separate dates, we are unable to determine whether her prior record made her eligible for sentencing as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).

Finally, as to Johnson, we note that without her cooperation, and without her statement implicating defendant, the State would never have learned the identity of the perpetrators of the violent robberies and kidnapping. Unlike Johnson, defendant did not agree to testify on behalf of the State at the trial of his co-defendants. A defendant's cooperation is a key factor justifying disparate sentences. State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998) (finding no basis to disturb a defendant's sentence based on disparity where the co-defendant cooperated with the State and the defendant did not), certif. denied, 157 N.J. 647 (1999). We therefore reject defendant's contention that his sentence was unfairly disparate when compared to the sentence imposed on Johnson.

Turning to the sentence imposed on McMichaels, we again reject defendant's claim that his own sentence was invalid. We reach that conclusion for several reasons. First, the difference in the two men's prior records was enormous. McMichaels had one prior adult indictable conviction. Defendant had five: he incurred drug distribution convictions in 1994, 1996 and 2000, and he had two convictions for possession of a controlled dangerous substance in 1996. Defendant's prior record exposed him to a discretionary extended term sentence as a persistent offender. See N.J.S.A. 2C:44-3(a) (defining a persistent offender as a person who has been convicted of a crime of the first, second or third degree and "who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced"). Thus, defendant's sentencing exposure, had he gone to trial and been convicted, was enormous. McMichaels did not face the same risk.

Second, by reneging on his promise to testify against McMichaels, defendant left the State with a very weak case against McMichaels. In particular, Johnson did not know McMichaels, and McMichaels could not have been convicted at trial as a participant without the testimony of defendant. When defendant refused to testify against McMichaels, the State was left with no alternative but to offer McMichaels an extremely favorable plea agreement. Notably, McMichaels had agreed to testify against defendant, thereby entitling McMichaels to a more favorable plea agreement than that offered to defendant, who refused to do the same. Williams, supra, 317 N.J. Super. at 159. Both of these significant factors justify the unequal sentences imposed on defendant and McMichaels. We reject defendant's claims to the contrary.

Thus, even if we were willing to assume that trial counsel rendered ineffective assistance by failing to argue that defendant's sentence was unfairly disparate and should be reduced, we are convinced that had such an argument been raised, it would have been rejected. Under such circumstances, the second Strickland prong is not satisfied, as defendant is unable to demonstrate that he was prejudiced by counsel's purported deficiency. We are likewise satisfied that even if counsel had asked the judge to impose a sentence more lenient than the fifteen-year NERA term that was imposed, the judge would have declined to do so. Notably, defendant points to no mitigating factors that should have been advanced by trial counsel. We reject defendant's claim that he was prejudiced by counsel's failure to request a more lenient sentence.

Defendant additionally claims the NERA consequences of his plea agreement were not adequately explained to him at the time he entered his plea of guilty. The record tells us otherwise. During the plea colloquy, the judge carefully explained the eighty-five percent parole ineligibility term required by NERA. Defendant also signed the NERA supplemental plea form, and was questioned about the plea form during the plea colloquy, acknowledging he understood its terms.

1 The record does not specify the nature of that hearing.