STATE OF NEW JERSEY v. SALAAM REID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6398-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALAAM REID,

Defendant-Appellant.

______________________________

December 5, 2011

Submitted November 14, 2011 - Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal form the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1173.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a February 27, 2009 order denying his petition for post-conviction relief (PCR). He contends that: the factual basis for his plea is inadequate; his plea counsel was ineffective because counsel forced and allowed him to plead guilty; and his sentence was illegal. We disagree and affirm.

On October 2, 2003, defendant pled guilty to first-degree carjacking, N.J.S.A. 2C:15-2, in exchange for a twelve-year prison term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant testified as follows:

Court: Have you had enough time to discuss your case, its facts and circumstances as well as your rights and any defenses you might have to [the charge of first-degree carjacking] with your lawyer before deciding to plead guilty?

Defendant: Yes, sir.

. . . .

Court: Has anyone forced you or threatened you or put any kind of pressure on you to get you to give up your rights and make you plead guilty?

Defendant: No, sir.

Court: Has anyone made any promises to you . . . to get you to give up your rights and make you plead guilty?

Defendant: No, sir.

. . . .

Court: And you fully understand the deal that you're making with the [S]tate?

Defendant: Yes, sir.

Court: Who made the decision to plead guilty here, sir?

Defendant: Me.

Court: And you are pleading guilty to [first-degree car jacking] because you are in fact guilty of the offense?

Defendant: Yes, sir.

Defendant then provided a factual basis for the crime. He testified that he located a car and entered it without permission. While attempting to start the engine, defendant observed a man approach the car and reach into the driver's side window to prevent defendant from driving away. Defendant admitted that he used force to brush away the individual's arm, and drove away.

On December 5, 2003, the judge sentenced defendant to twelve years in accordance with the plea agreement. On October 16, 2007, we affirmed the sentence after hearing argument on our excessive sentencing calendar.1 Defendant did not file a petition for certification to the New Jersey Supreme Court.

On September 12, 2008, defendant filed his petition for PCR. Defendant filed a pro se "Letter Brief in Support of Post Conviction Relief," and PCR counsel filed a separate brief.2 Defendant primarily argued that his factual basis was inadequate, and that PCR counsel was ineffective because he allowed defendant to plead guilty. The State contended that defendant's PCR petition was procedurally time-barred and failed to establish a prima facie case of ineffective assistance of counsel.

On February 26, 2009, Judge Paul DePascale conducted oral argument and denied defendant's petition. In his oral opinion, Judge DePascale concluded that defendant failed to raise on direct appeal the adequacy of his factual basis. Although defendant was therefore procedurally barred from challenging the factual basis, Judge DePascale determined that defendant did not establish a prima facie case of ineffective assistance of counsel.

On appeal, defendant raises the following points:

POINT I

THE ORDER DENYING THE DEFENDANT'S PETITION SHOULD BE REVERSED BECAUSE THE PCR COURT MISAPPLIED R. 3:22-3

POINT II

SINCE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST, THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF

A. THE SENTENCE IMPOSED WAS ILLEGAL BECAUSE IT VIOLATED THE PROVISIONS OF THE "GRAVES ACT"

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed, [counsel must] ensure that the trial is fair[; therefore], 'the right to counsel is the right to the effective assistance of counsel'" pursuant to the Strickland/Fritz standard. Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. 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 and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

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 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." 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 evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This State's Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court stated in State v. Echols:

Because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," State v. McQuaid, 147 N.J. 464, 483, 688 A.2d 584 (1997), our rules provide various procedural bars. For example, a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars.

[ 199 N.J. 344, 357 (2009) (citing State v.Goodwin, 173 N.J. 583, 594 (2002)).]

After considering the record and briefs, we conclude that the arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge DePascale in his oral opinion. We add the following brief comments.

Defendant's argument that he provided an inadequate factual basis is barred by Rule 3:22-4, pursuant to which a PCR petition is "the exclusive means" to challenge a conviction and not "a substitute for appeal." As Judge DePascale correctly stated:

Preliminarily, I note that the grounds urged by the [d]efendant on this [p]etition could have and should have been raised on direct appeal. . . . . The factual basis to support the conviction was on the record and could have been sufficient for the Appellate Division's review and action if it had been raised on appeal. It was not. Consequently, the ground raised[, that the factual basis was inadequate,] is procedurally barred by . . . Rule 3:22-[4].

We reject defendant's contention for the first time on appeal that his plea counsel forced him to plead guilty. Defendant admitted during the plea hearing that no one pressured him to plead guilty. He stated that he decided to plead guilty because he was guilty. At sentencing, defendant stated that he would stand by his plea.

We find no merit to defendant's argument that because the victim was not in the vehicle and was not injured, his plea counsel was ineffective by allowing him to plead guilty. We agree with Judge DePascale that "[g]iven the state of the law at the time of the plea . . . [c]ounsel's performance here cannot be said to have been deficient." Thus, we find that defendant has not established the first prong under Strickland.

Moreover, we conclude defendant has failed to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698, i.e. that he "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). Thus, defendant failed to meet the second prong of Strickland.

Finally, there is no basis to contend that defendant's sentence is illegal. The judge appropriately followed the plea agreement and imposed a twelve-year prison term with eighty-five percent parole ineligibility pursuant to NERA.

1 At oral argument, defense counsel argued that "the aggravating and mitigating factors would support an imposition of a ten-year term." The assistant prosecutor contended that the judge properly followed the negotiated plea, and that a ten-year sentence was "not appropriate given the . . . victim was [seventy-eight] years old."

2 Defendant also filed a pro se supplemental brief dated December 3, 2009.