STATE OF NEW JERSEY v. EUGENE SPARROW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0402-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE SPARROW,

Defendant-Appellant.

____________________________________

November 29, 2012

Submitted November 14, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 03-05-1841.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, 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, of counsel and on the brief).

PER CURIAM

Defendant Eugene Sparrow appeals the Law Division's December 2, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In May 2003, Sparrow was indicted and charged with the following offenses: second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (counts two and three); third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count eight).

In July 2003, Sparrow entered a plea of guilty to conspiracy, both counts of robbery, and possession of a handgun without a permit. As part of the plea agreement, the State agreed to dismiss the other charges and to recommend a ten-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge accepted the plea and scheduled a sentencing hearing for September.

Because Sparrow advised the judge on the scheduled sentencing date that he wished to withdraw his guilty plea, the judge adjourned the sentencing so that defense counsel could obtain and review a transcript of the plea hearing. On the adjourned sentencing date, defense counsel advised the judge that Sparrow still wanted to withdraw his guilty plea. Nevertheless, counsel articulated his view that there was no basis in fact for the relief sought by his client.

[DEFENSE COUNSEL]: [The transcript] does not appear to me, in the body of the transcript, that there's anything in there that would suggest a basis in the transcript itself for the plea to be taken back.

However, speaking with [Sparrow], today, he's indicated, to me, he wants to take his plea back. And his contention is that I misled him, even though our discussions obviously do not reflect itself in the body of the plea transcript. And his position is, because he claims I misled him, that hewas deprivedeffective representa-tion of [c]ounsel.

Judge, when a client tells me that it's his view that I improperly represented him, as an [o]fficer of the [c]ourt, I believe it's my obligation to make an application to withdraw and in fact to have [p]ool [c]ounsel assigned, so that this issue could be properly litigated. And that's what I would do at this point.

The judge denied the motion to vacate the plea and proceeded to sentencing.

Defense counsel requested that Sparrow be sentenced in accordance with the plea. Counsel then asked Sparrow if he would like to address the court directly. Sparrow stated:

Your Honor, he -- he -- he -- I told him that before, when he talking about the charge, Judge, I told him that he misled me. He offered me something that I was gonna get, if I copped out to 10 with eighty-five. And like it didn't happen. So, that -- that's why I wanted to appeal it and try to take my time and go to trial and plan on my intelligence basically.

When the judge asked Sparrow if he wished to say anything else he replied "no."

The judge merged the conspiracy conviction with one of the robbery convictions, and sentenced Sparrow to a ten-year term with an eighty-five percent period of parole ineligibility pursuant to NERA. A similar, concurrent term was imposed on the other robbery conviction, with a concurrent three-year term on the weapon conviction.

Sparrow's appeal was heard by an excessive sentencing oral argument panel on December 14, 2004. At oral argument, appellate counsel raised the issue of Sparrow's attempt to withdraw his guilty plea prior to sentencing. However, our order of the same date affirmed the judgment of conviction, but referred only to the issue of sentence.

Sparrow filed his PCR petition in August 2005. He argued that his guilty plea was flawed because his trial attorney failed to inform him fully with respect to the sentencing consequences of NERA and because an adequate factual basis for the plea was not established on the record. He also argued that appellate counsel's representation was inadequate because the denial of his motion to withdraw his plea was not properly raised on direct appeal. Oral argument on the petition took place in October 2006. The PCR judge rejected defendant's request for an evidentiary hearing and denied the PCR application for reasons set forth in a written opinion.

Sparrow appealed the denial of post-conviction relief. We concluded that there was no procedural bar to the issues regarding ineffective assistance of counsel raised in Sparrow's PCR petition, and remanded for an evidentiary hearing "because the circumstances regarding the performance of counsel [were] not clearly revealed by the existing record," "both in the trial court and in his direct appeal."

On remand, the PCR judge held a two-day evidentiary hearing in June and July 2010. Sparrow testified at the hearing, as did his former trial and appellate attorneys.

The judge issued a letter opinion on December 2, 2010. He found the attorney witnesses to be more credible than Sparrow. In that regard, he noted Sparrow's motivation to obtain his release from prison, the disparity between his testimony at the plea hearing and the PCR hearing, and the unreasonableness of his assertion that he did not understand his obligation to testify truthfully at the plea hearing.

With respect to trial counsel, the judge found that Sparrow entered his guilty plea "with full knowledge of his rights and responsibilities, including the NERA consequences." He also found that, when Sparrow first advised his trial attorney that he wanted to withdraw his plea, he "did not tell [the attorney] the reason," and that he did not contend that the attorney had misled him until just before sentence was imposed. Finally, the judge found that Sparrow did not assert his innocence of the crimes to which he pled guilty to his trial attorney or the trial judge. With respect to appellate counsel, the judge found that the attorney raised the issue before us at oral argument. Based upon those factual findings, the PCR judge denied relief and dismissed the petition. This appeal followed.

II.

Sparrow raises the following issues on this appeal:

POINT ONE: TRIAL COUNSEL WAS INEFFECTIVE FOR ADVOCATING AGAINST MR. SPARROW AND UNDERMINING HIS ATTEMPT TO WITHDRAW HIS GUILTY PLEA.

POINT TWO: TRIAL COUNSEL WAS INEFFECTIVE FOR MISLEADING MR. SPARROW ABOUT THE PENAL CONSEQUENCES OF HIS PLEA.

POINT THREE: THERE WAS NO FACTUAL BASIS FOR MR. SPARROW'S PLEA TO ARMED ROBBERY AND HIS PLEA MUST BE VACATED UNDER STATE V. SLATER, 198 N.J. 145, 156 (2009).

POINT FOUR: APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO APPEAL THE DENIAL OF MR. SPARROW'S MOTION TO WITHDRAW HIS PLEA.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2(a), a criminal defendant is entitled to PCR relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court 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, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "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. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We generally defer to a PCR judge's factual findings resulting from a plenary hearing when they are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see State v. Locurto, 157 N.J. 463, 470-71 (1999). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted); State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 170 N.J. 207 (2001). The standard of review on questions of law raised in a PCR petition is de novo. Harris, supra, 181 N.J. at 415.

As we have already noted, the PCR judge determined that Sparrow entered his plea with a full understanding of its penal consequences. That finding is fully supported by the transcript of the plea. After the plea judge explained that a conviction for either count of robbery would expose Sparrow to a maximum sentence of twenty years subject to NERA and that the State was offering a plea involving a sentence of ten years subject to NERA, he gave Sparrow an opportunity to consider the plea. After considering the offer, Sparrow retracted his non-guilty plea and accepted the plea offer including the ten-year prison term. When the judge asked him whether he understood that he was pleading to a NERA offense and therefore would not be eligible for release for approximately eight years and six months, Sparrow responded, "I understand." He also acknowledged his understanding that he would be subject to a post-incarceration period of parole for five years. With respect to the factual basis, the plea transcript also supports the PCR judge's finding that there was "an adequate factual basis" for the plea.

For the purposes of our analysis of Sparrow's claims concerning his application to withdraw the guilty plea, we will assume that Sparrow's trial and appellate counsel provided constitutionally deficient representation, although we note the PCR judge's finding that the representation was constitutionally adequate.1 We will instead focus on the second prong of the Strickland test, whether Sparrow has demonstrated "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.

Our review of the law and the record convinces us that Sparrow's application to withdraw his plea had no merit and would not have succeeded if argued more vigorously by trial counsel or raised in a more formal manner on direct appeal. The Supreme Court has provided four factors a trial court should consider and balance when evaluating a motion to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009) (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). When making such a motion prior to sentencing, as Sparrow did in this case, we evaluate the motion under the "'interest of justice' standard" of Rule 3:9-3(e), as opposed to the "'manifest injustice' standard" of Rule 3:21-1. Id. at 158.

Under the first factor, "[a]bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Ibid. Here, Sparrow never actually asserted his innocence in connection with his effort to withdraw the plea, and he certainly did not offer "specific, credible facts" to support any claim of innocence.

Under the second factor, the nature and reasons for defendant's motion to withdraw should be considered.

In assessing the nature and strength of the reasons for withdrawal, courts should not approach them with skepticism. At the same time, trial judges must act with "great care and realism" because defendants often have little to lose in challenging a guilty plea. A court's ruling may rest, of course, on its view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion.

[Slater, supra, 198 N.J. at 160 (citation omitted).]

Misinformation or misunderstanding pertaining to the nature, extent, or direct consequences of the plea or sentence have been held sufficient grounds to withdraw a plea. Id. at 159-60 (citing State v. Nichols, 71 N.J. 358, 361 (1976); State v. Johnson, 182 N.J. 232, 241 (2005); State v. Kiett, 121 N.J. 483, 499 (1990); State v. Howard, 110 N.J. 113, 118 (1988); State v. Heitzman, 107 N.J. 603, 604 (1987); State v. Kovack, 91 N.J. 476, 483 (1982); State v. Marzolf, 79 N.J. 167, 183 (1979)). However, Sparrow's assertions that he did not understand the penal consequences of his plea are not supported by the record and were properly rejected by the plea judge and the PCR judge.

With respect to the third factor, the plea resulted from a plea offer from the State, which was quite favorable to Sparrow. The plea came just before the case was to be assigned a date for trial, at which Sparrow would have been exposed to a much longer sentence. In Slater, supra, 198 N.J. at 160, the Court noted that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." However, the Court did "not suggest" that the third factor "be given great weight in the balancing process." Id. at 161. With respect to the fourth factor, there does not appear to be any support in the record for a finding that the State would have suffered any particular prejudice had the plea been withdrawn.

Balancing the factors, we conclude that Sparrow was not entitled to withdraw the plea he entered as part of the plea agreement with the State. He made no colorable claim of innocence and his reasons for seeking to withdraw were specious. A defendant "must show more than a change of heart," and a "'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). The record before us demonstrates that Sparrow could not make such a showing in the trial court or on direct appeal.

Affirmed.

1 In addition, we note that appellate counsel did raise the issue during the excessive sentencing oral argument, although the panel did not address it in the order of affirmance.