STATE OF NEW JERSEY v. AKRAM EVANS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5479-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AKRAM EVANS,

Defendant-Appellant.

______________________________

August 1, 2011

Submitted July 26, 2011 - Decided

Before Judges Sabatino and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-3481.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Akram Evans appeals from the trial court's denial of post-conviction relief ("PCR") in connection with his conviction in 2005 following a guilty plea to first-degree vehicular homicide while driving with a suspended license, N.J.S.A. 2C:11-5, and second-degree assault by a motor vehicle while intoxicated near a school zone, N.J.S.A. 2C:12-1c(3)(a).

The offenses arose out of a fatal accident in June 2003, in which defendant, who had been drinking, ran a red light and crashed his car into a patrol car, killing one of the police officers inside. During the course of his plea colloquy, defendant testified that he "probably" had consumed four gallons of gin before the accident. He was sentenced to a term of fifteen years on the first-degree offense, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2a, and a concurrent seven-year term on the second-degree offense.

We affirmed defendant's judgment of conviction on direct appeal. State v. Evans, No. A 3281-05 (Jul. 9, 2007). Subsequently, defendant filed a petition for PCR in September 2008.

After hearing oral argument, Judge Thomas Vena, the same judge who had presided over defendant's plea and sentencing, dismissed the PCR petition. The judge issued a written decision on July 2, 2009. Preliminarily, the judge found that the petition was barred under Rule 3:22-4 because the issues presented could have been raised on direct appeal. The judge then went on to address the merits, concluding that defendant's trial counsel was not ineffective for failing to move to dismiss the indictment. Judge Vena also found that trial counsel was not ineffective in eliciting a factual basis for the plea.

This appeal followed. Defendant raises these points for our consideration in his initial brief:

POINT ONE

THE POST[-]CONVICTION RELIEF COURT'S CONCLUSION THAT DEFENDANT'S GROUNDS FOR POST-CONVICTION RELIEF WERE BARRED UNDER RULE 3:22-4 WAS IN ERROR.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel's Failure to Move to Dismiss the Indictment Constituted Ineffectiveness of Counsel.

B. Trial Counsel's Actions in Persuading Defendant to Provide a False Factual Recitation Constituted Ineffectiveness of Counsel.

POINT THREE

THE POST CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

He also raises these points in his pro se reply brief:

REPLY POINT I

APPELLANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BECAUSE THEY ARE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WHICH ARE APPROPRIATELY ADDRESSED DURING POST[-] CONVICTION RELIEF PROCEEDINGS.

REPLY POINT II

APPELLA[NT] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE HE HAS ASSERTED A PRIMA FACIE CLAIM, HE WAS ENTITLED TO A HEARING.

(a) Trial Counsel's Failure to Move for Dismissal of the Indictment was [D]ue to Incompetence.

(b) Trial Counsel was Incompetent When [H]e Advised Appellant to Plead Guilty Without Considering the Evidence.

Having fully considered these points, we sustain the dismissal of defendant's petition, largely for the substantive reasons set forth in Judge Vena's written decision.

Defendant first contends that the judge erred in concluding that his petition was barred by Rule 3:22-4. Although some of the claims he now raises could have been raised on direct appeal, others may not have been. For example, defendant claims that his trial attorney was ineffective for failing to move to dismiss the indictment based upon information in an accident investigation report. He also contends that information in the report concerning the speed of his car would have shown that his testimony at the plea hearing was not truthful. However, it is not clear that the report was part of the record as it existed prior to the direct appeal. Thus, defendant may not have been able to raise these particular issues relating to the report until now.

We come to a different conclusion about defendant's claim that his trial counsel elicited false information during the plea colloquy about defendant's drinking. It should have been obvious on direct appeal that defendant could not literally have consumed four gallons of gin in one day, as he had asserted in the factual basis for the guilty plea. Ingesting such a quantity in one day probably would have been fatal. In any event, his recorded BAC was .181, a level that was known at the time of the plea and at the time of the direct appeal. The inconsistency between that BAC and the one-day consumption of four gallons of gin would have been readily apparent at the time of direct appeal. Thus, we affirm the PCR judge's invocation of Rule 3:22-4 as to this discrete issue.

We turn to defendant's substantive contentions. In defendant's second point on appeal, he contends that his trial counsel was ineffective in failing to move to dismiss the indictment and in causing him to provide allegedly false information during the plea allocution. We assess this argument, as well as defendant's other claims relating to his prior counsel's representation, under the well-established, two-prong test for constitutional ineffectiveness, requiring a defendant to show: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense 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. Defendant fails to meet either of these requirements under Strickland.

According to defendant, the asserted grounds for challenging the indictment would have been the prosecutor's alleged failure to present evidence to the grand jury, claimed to be exculpatory, that: (1) the police vehicle had a worn right-rear tire and its airbags did not deploy; (2) defendant did not know that he was driving under a license suspension; and (3) he was not speeding at the time of impact because the data recording device in his Cadillac measured its maximum velocity at the point of impact as 23.04 miles per hour. We concur with Judge Vena that none of this supposed evidence was "clearly exculpatory," which is the applicable standard under State v. Hogan, 144 N.J. 216, 236-37 (1996).

The patrol car's airbags would not necessarily deploy from a side-impact even if they were functioning properly. Moreover, there is no proof that the worn right-rear tire on the police vehicle contributed to the accident. The prosecutor also did not misrepresent defendant's suspended license status to the trial court because the license was, in fact, suspended at the time.

In addition, the PCR judge soundly determined that even if the State failed to disclose the maximum velocity from the data recording device, that evidence would not have negated guilt on either charge and was not clearly exculpatory. The velocity information recorded by the data recording device measures the force of the collision at the moment of impact, not the speed in the seconds preceding the impact. Thus, the force at the point of impact of twenty-three miles per hour was not patently inconsistent with the fifty to fifty-nine miles per hour speed of the Cadillac prior to the impact, as estimated by the State's accident reconstruction expert based on skid marks and the distance that the two vehicles traveled after impact.

Defendant additionally claims that the prosecutor engaged in misconduct before the grand jury by failing to present evidence of the police officer's driving record. Such evidence would not directly negate defendant's guilt and was not clearly exculpatory.

In sum, there is no merit to defendant's claim that his counsel was ineffective for failing to move to dismiss the indictment.

Defendant next contends that his counsel was ineffective in persuading him to allegedly provide a false factual basis for the plea. He urges that he should be permitted to withdraw his plea under State v. Slater, 198 N.J. 145, 150 (2009) (establishing a four-part test for such withdrawal requests)1. The PCR judge found that defendant failed to establish either ineffective assistance of counsel or a basis for withdrawing his plea. We agree.

Defendant's statement at the plea hearing that he "probably" consumed four gallons of gin was obvious hyperbole. In any event, the record established that his BAC was .181, a level that was well over the legal limit. Thus, the relevant inquiry on the intoxication element of the first-degree offense is not the quantity of alcoholic beverages defendant actually consumed; rather, the issue is how much alcohol was in his blood at the time of the accident. The State's proofs reflect that he was legally intoxicated, and no counter-proofs to the contrary have been presented.

Defendant's admission during the plea colloquy that he was speeding is consistent with the accident reconstruction report and the grand jury testimony of the officers that were in the vehicle immediately behind the victims' vehicle. Defendant's testimony was not obviously false, regardless of the information from the data recording device.

We must not lose sight of the fact that defendant received a substantial bargain from a plea agreement because he traded a very significant sentencing exposure that exceeded forty years for exposure to only a fifteen-year term. He has not presented a colorable claim of innocence, one of the key factors under Slater. He clearly understood the charge to which he was pleading and has not presented any reasons for withdrawal that would militate in favor of granting his motion. Finally, there is obvious prejudice to the prosecution in a case involving offenses that occurred in 2003. As a result, defendant does not meet the Slater factors to warrant an opportunity to now withdraw his guilty plea.

For all of these reasons, we sustain the dismissal of defendant's PCR application. As defendant established no prima facie case for relief, there was no need for the trial judge to have conducted an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).

A

1 The four factors are: (1) the assertion by defendant of a colorable claim of innocence; (2) the nature and strength of the reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would cause unfair prejudice to the State or unfair advantage to the accused. Ibid.