STATE OF NEW JERSEY v. ROGER HOYTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3033-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER HOYTE,

Defendant-Appellant.

________________________________________________________________

March 9, 2011

 

Submitted January 11, 2011 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0561.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

During the jury selection in this capital murder prosecution, defendant Roger Hoyte entered a plea of guilty to three counts of first-degree capital murder, N.J.S.A. 2C:11-3a(1) and (2); three counts of first-degree carjacking, N.J.S.A. 2C:15-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1, three counts of felony murder, N.J.S.A. 2C:11-3a(3); three counts of second-degree conspiracy, N.J.S.A. 2C:5-2; one count of third-degree burglary, N.J.S.A. 2C:18-2; one count of third-degree theft, N.J.S.A. 2C:20-3a; three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. During the penalty phase of the trial, the jury was unable to reach agreement as to the penalty, and after appropriate mergers, defendant was sentenced on April 3, 1998, to an aggregate term of three consecutive life sentences, see N.J.S.A. 2C:11-3c(3)(c); N.J.S.A. 2C:11-3b, with a minimum of 90 years of parole ineligibility. Defendant appealed, and we affirmed. The Supreme Court denied certification. State v. Hoyte, 165 N.J. 488 (2000). Defendant filed a petition for post-conviction relief (PCR) on May 23, 2006. That application was denied, and this appeal followed. We affirm.

The underlying prosecution arose out of the murder of three taxicab drivers in Newark. As we noted in our earlier opinion addressing the direct appeal:

Between October 20 and November 8, 1995, three Newark taxicab drivers were murdered. In each of the killings, the victim was shot execution style in the back of the head. One of the victims did not immediately expire. The perpetrator thus slit the victim's throat after attempting to break his neck.

 

[State v. Hoyte, No. A-5785-97T4 (App. Div. Mar. 31, 2000) (slip op. at 2).]

 

We went on to note that defendant confessed to the murders and implicated his co-defendants. Id. at 3. On appeal, he urged that he confessed because of promises made by the prosecutor, an assertion that both the trial judge and we rejected. In addition, he urged that the sentence was excessive and that, too, was rejected. Id. at 2, 4-6.

In his PCR, he claimed ineffective assistance of counsel, contending that he had been pressured into pleading guilty by his attorney. The judge determined that defendant's PCR was barred by Rule 3:22-12 (providing for a five-year limitation period on the filing of a PCR). She also concluded that defendant had received effective assistance of counsel.

On appeal, Defendant raises the following issues:

POINT I:

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.

 

POINT II:

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

 

We conclude that defendant's arguments are without merit.

Rule 3:22-12 imposes a five-year limitation period on the filing of a PCR. Defendant was sentenced on April 3, 1998, and the PCR was filed on May 23, 2006.1 Defendant urges that he attempted to file a PCR in 2002, but for unexplained reasons, it was never filed. We do not deem such attempt to be "excusable neglect," State v. Murray, 162 N.J. 240, 245-46 (2000), State v. Afanador, 151 N.J. 41, 52 (1997), and the interests of justice here do not demand that we relax the Rule. State v. DiFrisco, 187 N.J. 156, 167 (2006). More important however, on the merits, defendant is not entitled to relief.

Defendant argues that he was pressured into entering a guilty plea. The record reveals, however, that the trial judge conducted an extraordinarily thorough voir dire before acceptance of defendant's plea. The judge first explained to defendant, the mitigating factors that could be considered:

Number one, you were under the influence of extreme mental or emotional disturbance, insufficient to constitute a defense to a prosecution. Two, the victim in any of these matters, either solicited or participated in or consented to the conduct which resulted in his death. Three, the age of yourself at the time of the murder. Four, your capacity to appreciate the wrongfulness of your conduct or to conform your conduct to the requirements of law were significantly impaired as a result of either mental disease or defect; or as a result of intoxication, but not to a degree sufficient to constitute a defense to prosecution. Five, you were under unusual and substantial duress, insufficient to constitute a defense to prosecution. Six, you had no significant history of prior criminal activity. Seven, you rendered substantial assistance to the State in the prosecution of another person for the crime of murder. And 8, which is referred to as the catch-all, any other factor which is relevant to either your character, your record, or to the circumstances of the offense.

 

He then went on to question defendant:

So you understand that your lawyers can present evidence at the sentencing phase of any or all of those mitigating factors in an attempt to persuade the jury to spare your life?

 

You understand?

 

THE DEFENDANT: Yes.

 

THE COURT: And I've already gone over and I think explained to you what happens at a sentencing or penalty phase.

 

Any statements that you make today, here in the courtroom at this hearing, cannot be used against you substantively by the State in front of the jury at any phase of this trial, on the good question of guilt, if you have a guilt trial [sic] or on the basis of punishment, if you have a penalty phase.

 

However, if you elect to testify at the penalty phase hearing, and if you testify inconsistently or say anything different from what you say today about the crime or your guilt, then the State would be allowed to use what you say here today against you at the penalty phase to impeach your credibility, to say, well, wait a minute, you just said such and such, Mr. Hoyte, but back on January 16th, didn't you tell Judge Cohen something different?

 

You understand?

 

THE DEFENDANT: Yes.

 

. . . .

 

THE COURT: And may also, after that, even be reviewed further in the federal courts or again in the lower courts of this state or both.

 

You understand?

 

THE DEFENDANT: Yes.

 

THE COURT: Has anyone promised you anything to get you to enter this plea of guilty?

 

THE JUDGE: Beside the condition - -

 

THE COURT: Other th[a]n the condition, that we've placed here on the record that you retain all rights to appeal any legal rulings. Beside that, did anybody promise you anything, including a promise about sentence?

 

THE DEFENDANT: No, sir.

 

THE COURT: Did anybody either threaten you or force you to get you to plead guilty?

 

THE DEFENDANT: No, sir.

 

THE COURT: Do you understand you don't have to plead guilty, if you don't want to, you could continue with the trial on the guilty phase, as we've discussed, if you wanted to?

 

THE DEFENDANT: Yes, I understand.

 

THE COURT: Do you have any questions, sir, about your rights or the law up to this point?

 

THE DEFENDANT: No.

 

THE COURT: Do you understand that if you plead guilty, the jury, or if you and the State both agree, I would decide on what your sentence would be, whether it would be death or a long term of imprisonment.

 

Do you understand?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you wish to plead guilty to the charges in the indictment, including the capital murder of Magliore Michel, the capital murder of John Moncade, and Laurinus Sanon, knowing that if you do so after a penalty hearing, if all the requirements are met, you could face the death penalty for each of those three matters?

 

THE DEFENDANT: Yes.

 

THE COURT: Counsel, could I just see you briefly up here at sidebar for one moment, actually right here.

 

(The following takes place at sidebar.)

 

THE COURT: With regard to the factual basis, I would proceed to ask him to give a factual basis, unless you tell me that, pursuant to the rule, you do not wish him to give a factual basis.

 

DEFENSE COUNSEL: I'm going to say, Judge, that we do wish to use that rule to avoid having him give a factual basis, and I will indicate to the Court or I am now, we'll ask you to rely upon the facts set forth in the defendant's confession, which he admitted under oath at the Miranda hearing were true.

 

THE COURT: Okay.

 

Then I'm going to ask the State to introduce into evidence for purposes of this plea, the confession, and if you want, such other corroborative information as you have.

 

PROSECUTOR: I'm going to introduce the three protocols of each of the three decedents. I'm going to introduce his written statement. And I'm going to ask the Court to take judicial notice at this hearing to admit into evidence the record of previous pretrial hearing, in which you took exhausted testimony regarding the Miranda, including the testimony by the defendant at the hearing, in which he indicated to the Court that his statement was accurate, that it was voluntary, except for his understanding that he won't face the death penalty, and that he did indeed commit . . . .

 

[Emphasis added.]

 

Nothing in the record suggests that defendant was "pressured" into any plea in this matter.

We are satisfied that defendant failed to establish a prima facie basis for concluding that counsel was ineffective. We restate the basic principles that apply to such a claim.

When determining if defendant established a prima facie claim of ineffective assistance of counsel, "courts should view the facts in the light most favorable to a defendant . . . ." State v. Preciose, 129 N.J. 451, 462-63 (1992). To establish a prima facie claim of ineffective assistance of counsel, the applicable test is set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), adopted by the Supreme Court of New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland-Cronic-Fritz standard, defendant must prove: "(1) that counsel s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 197-98, (2007)). To restate, "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." Allegro, supra, 193 N.J. at 366.

No such showing has been demonstrated here. The judge carefully explored with defendant both the nature of the plea and the participation of counsel. Nothing in the record suggests any element of pressure even in the face of defendant facing a number of charges that could have resulted in the death penalty. In fact, the decision to plead guilty appears to be the result of a sound and ultimately, successful, trial strategy to save defendant from the death penalty.

In applying Strickland, the Court has considered that trial strategy will not form a basis of ineffective assistance of counsel. As the Court has noted, in assessing the first prong, a judge must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks omitted). In considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of professional assistance." Ibid. (internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (internal quotation marks omitted). As the Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (citations, internal quotation marks and editing marks omitted in original) (quoting Castagna, supra, 187 N.J. at 314-15).]

 

We perceive of no basis to conclude that any advice to defendant regarding the entry of a plea prior to the penalty phase was deficient trial strategy, especially noting that it proved successful. In sum, we find that defendant meets neither prong of Strickland.

Finally, we conclude that the judge did not abuse her discretion by denying a plenary hearing. State v. Preciose 129 N.J. 451, 462-63 (1992). Nothing presented by defendant, except his bare allegation of a pressured plea, suggests a basis for exploring beyond this record.

A

ffirmed.

1 Defendant applied for counsel on August 18, 2005, but that, too, was beyond the five-year limitations period.