STATE OF NEW JERSEY v. SHARIFF MUHAMMAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0358-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHARIFF MUHAMMAD,

Defendant-Appellant.

___________________________________

November 20, 2012

 
 

Submitted October 22, 2012 - Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3590.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

 

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

PER CURIAM

Defendant appeals from a February 9, 2011 order denying his petition for post-conviction relief (PCR). Defendant contends that his plea counsel failed to pursue and inform him about the defense of self-defense. Defendant argues that had he known about the defense, he would not have pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1).1 Defendant maintains that the factual basis of his plea is therefore inadequate because he had a reasonable belief that force was necessary to protect himself. We remand for an evidentiary hearing.

Defendant and the victim argued over money owed to the victim for the sale of drugs. At a June 2009 plea hearing, defendant testified as follows:

Q: [W]hat happened as a result of that argument?

 

A: [The victim] lunged at me and I stabbed him.

 

. . . .

 

Q: [H]ow many times did you stab him?

 

A: I think two or three times.

 

Q: Do you know what area of his body you stabbed him in?

 

A: I'm not even sure[] because I was just trying to stop him.

 

. . . .

 

Q: You could've left the area and not even had the argument with [the victim] if you chose to. Is that correct?

 

A: If he hadn't seen me, yeah I could've left the area. But he [saw] me.

 

. . . .

 

Q: [W]hen you were stabbing him you did not fear for your life at that time. Correct?

 

A: No, I did.

 

. . . .

 

A: He's just a big guy and I didn't want nothing to happen to me.

 

[(Emphasis added).]

 

The judge accepted the plea, followed the plea agreement, and imposed a twenty-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.2

In July 2010, defendant filed a pro se petition for PCR and contended in his supplemental certification that

I . . . acted to protect myself. [The victim] lunged forward at me and at that point I feared for my life. [He] was a drug dealer [to] whom I owed [money]. He had cornered me in an attempt to get his money. He [threatened to harm me] if I did not give him the money. Based upon his reputation[,] I knew that my life was in danger . . . . I only stabbed him because I was trying to protect myself from being killed or seriously injured.

 

Defendant stated in his supplemental certification that he requested his plea counsel to "investigate the [victim's] background . . . to show that [the victim] was a dangerous drug dealer." Defendant asserted that his plea counsel "never considered [the defense of self-defense]."

In February 2011, the PCR judge conducted oral argument, concluded that an evidentiary hearing was unwarranted, and rendered a ten-page written opinion. The judge stated that the factual basis for the plea was adequate as a matter of law and rejected any notion that the defense of self-defense applied because "[d]efendant answered non-deadly force with deadly force knowing the victim to be unarmed." As a result, the judge denied the PCR petition and this appeal followed.

On appeal, defendant raises the following point:

POINT I

THE FACTUAL BASIS FOR THE OFFENSE OF AGGRAVATED MANSLAUGHTER WAS INSUFFICIENT AS IT DID NOT CONSIDER THE DEFENSE OF SELF-DEFENSE AND COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE AND DISCUSS THIS DEFENSE WITH PETITIONER

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." Id. at 485, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692. Therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Ibid. (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).

To establish a prima facie claim of ineffective assistance, defendant must demonstrate a reasonable likelihood of success under the Strickland two-prong test. 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. New Jersey has adopted the precepts of Strickland. Fritz, supra, 105 N.J. at 58. Specifically, to satisfy the second prong's prejudice requirement, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). These principles extend to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1408-09, 182 L. Ed. 2d 379, 390 (2012).

We conclude that defendant made a prima facie showing to satisfy prong one of the Strickland test. "Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken." State v. Rodriguez, 195 N.J. 165, 172 (2008) (citing State v. Kelly, 97 N.J. 178, 198 (1984)). Here, defendant feared the victim and believed that force was necessary to protect himself. In State v. Galicia, 210 N.J. 364, 389 (2012), our Supreme Court stated that

[a] person may justifiably use force against another if he "reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). To avail himself of the justification of self-defense, the actor must have an "actual, honest, reasonable belief" in the necessity of using force. State v. Perry, 124 N.J. 128, 161 (1991).

 

[(Internal quotation marks omitted).]

 

Self-defense applies to charges of murder, aggravated manslaughter, and reckless manslaughter. Rodriguez, supra, 195 N.J. Super. at 171.

Defendant stated in his supplemental certification that he explained to his plea counsel that the victim had a reputation for being a dangerous drug dealer and that the lives of defendant and defendant's wife were in danger unless defendant re-paid drug money to the victim. Defendant "tried to get [plea counsel] to investigate the background of [the victim] to show that he was a dangerous drug dealer, however, [defendant did not] believe counsel ever did that." We are unable to discern whether plea counsel pursued the defense of self-defense. 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 sub nom. Marshall v. New Jersey, 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).]

Here, an evidentiary hearing is needed to determine whether plea counsel considered the defense of self-defense, and if not, then why he rejected it.

The PCR judge rejected as a matter of law defendant's assertion that the defense of self-defense applied. Although the judge may ultimately be correct, we hold that such an analysis should be conducted after an evidentiary hearing. "Self-defense is measured against necessity." State v. Abbott, 36 N.J. 63, 69 (1961); see also State v. Bryant, 288 N.J. Super. 27, 37 (App. Div.) (holding that an actor can only use the amount of force which he reasonably believes necessary to repel the unlawful force against him), certif. denied, 144 N.J. 589 (1996).

Looking at the facts in the light most favorable to defendant, Marshall, supra, 148 N.J. at 158, the victim a known dangerous drug dealer threatened a fearful defendant, who was unable to retreat, and then cornered and lunged at him. At the evidentiary hearing, the PCR judge shall address whether plea counsel considered (1) the reasonableness of defendant's belief that force was necessary to prevent defendant's death or serious bodily injury, and (2) the nature of the force that defendant used. Applying the law governing self-defense, the PCR judge shall then determine if the defense applied.

We acknowledge that if defendant's force was disproportionate in its intensity, then his self-defense claim fails. See State v. Bowens, 108 N.J. 622, 626 (1987) (holding that "the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, does not provide an independent category of justification, excuse, or mitigation under the concept of imperfect self-defense"). In Bowens, supra, the Court stated that an imperfect self-defense

mean[s] no more than an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable.

 

[Id. at 628.]

 

We are unable to discern whether plea counsel specifically considered the defense of an imperfect self-defense, and if not, then why he rejected it.

We disagree with the PCR judge's conclusion that a defense of imperfect self-defense would "only afford [defendant] a conviction of manslaughter," which is "precisely what [defendant] pled to." If defendant rejected the plea deal to first-degree manslaughter and defended the murder charges contending that he acted with an honest but unreasonable belief in the need to use deadly force in self-defense, then the jury could have acquitted him of murder and aggravated manslaughter and convicted him of the lesser-included offense of second-degree reckless manslaughter. See Bowens, supra, 108 N.J. at 641 (stating that "[i]f . . . a defendant is aware that his or her acts create a risk of serious harm but unreasonably disregards that risk, then, if the essential elements of the crime are present, the defendant can be found guilty of manslaughter as defined by N.J.S.A. 2C:11-4a or b, instead of murder"); see also State v. Munroe, 210 N.J. 429, 446 (2012) (stating that an imperfect self-defense applies "if the jury determines that [a] defendant acted with an honest but unreasonable belief in the need to use deadly force," and that "[i]n such circumstances a jury could return a verdict of reckless manslaughter").

Although the record is incomplete and not suitable for a conclusive finding at this juncture, it suggests that a jury could conceivably rely on an imperfect self-defense defense and return a verdict of second-degree reckless manslaughter,3 ibid., not because defendant justifiably acted in self-defense, but rather because the State failed to establish the essential elements of murder or first-degree aggravated manslaughter. See State v. O'Carroll, 385 N.J. Super. 211, 238 (App. Div.) (stating that "when a trial judge includes instructions on offenses that by definition require the jury to consider whether the defendant acted knowingly or purposely, or with a less culpable, reckless state of mind, a separate instruction on imperfect self-defense is unnecessary" (citations omitted) (internal quotation marks omitted)), certif. denied, 188 N.J. 489 (2006). Therefore, defendant made a prima facie showing under prong two of the Strickland test that there exists "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 2068, 80 L. Ed. 2d at 698.

On remand, we direct the PCR judge to determine whether (1) plea counsel considered the defenses of self-defense and imperfect self-defense; (2) plea counsel investigated those defenses, and if not, the reason for not doing so; (3) defendant provided a sufficient factual basis for his plea; and (4) defendant is entitled to PCR.

We remand for an evidentiary hearing to occur no later than January 28, 2013, and we do not retain jurisdiction. Either party may seek further review by filing the appropriate notice of appeal.

1 In July 2008, a grand jury indicted defendant and charged him with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

2 Defendant did not file a direct appeal from his conviction.

3 N.J.S.A. 2C:11-4b(1).