STATE OF NEW JERSEY v. STACEY MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6041-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STACEY MOORE,

Defendant-Appellant.

_________________________________

November 20, 2012

 

Submitted February 14, 2012 - Decided

 

Before Judges A. A. Rodr guez and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-04-1519.

 

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

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a February 13, 2007 order denying his petition for post-conviction relief (PCR) and an October 4, 2010 order denying reconsideration. He contends primarily that he did not enter a guilty plea knowingly because his plea counsel failed to inform him of the penal consequences. We affirm.

In August 1999, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. At the plea hearing, defendant testified that "[t]here was a disagreement over a dice game. A weapon was involved and caused an innocent man his life. . . . I shot a man." Defendant further testified that he shot the victim "[i]n the stomach" after defendant "pulled out [his] gun" during a "tussle." The plea judge questioned the defendant as follows:

Q: [Defendant], . . . it's been represented . . . that you wish to . . . plea[d] . . . guilty to . . . aggravated manslaughter and [possession of a weapon for an unlawful purpose]. In return, the State has indicated [that] they are going to dismiss [a charge of third-degree unlawful possession of a weapon] . . . and they will recommend that any sentence you receive not exceed [twenty] years . . ., though . . . this is subject to the No Early Release Act [(NERA), N.J.S.A. 2C:43-7.2]. . . . [I]t will be [seventeen] years before you're eligible for parole.

 

Is that your understanding of the plea agreement, sir?

 

A: Yes, sir.

 

. . . .

 

Q: Anybody force or threaten you in any way to get you to plead guilty?

A: No, sir.

 

Q: Are you pleading guilty to these offenses, sir, because you are guilty of these offenses?

 

A: Yes, sir.

 

. . . .

 

Q: Do you understand . . . that the maximum sentence you could receive for the offense you're about to plead guilty to, it would be [thirty] years in State[] Prison?

 

A: Yes, sir.

 

. . . .

 

Q: I'm go[ing] to show you this plea form. It appears to have your initials and your signature on it, sir. Are those your initials and your signature?

 

A: Yes, sir.

 

Q: Did you go over [the plea] form with your [a]ttorney[] before you initialed it and signed it?

 

A: Yes, sir.

 

Q: Did you understand all the answers and all the questions?

 

A: Yes, sir.

 

Q: Are all the answers truthful, to the best of your knowledge?

 

A: Yes, sir.

 

Q: Have you had enough time to discuss the plea with [your attorney]?

 

A: Yes, I did.

 

Q: Are there any questions you wish to ask [your attorney] or me, before we continue?

 

A: No, sir.

 

Defendant also signed a supplemental plea form, which read, in part, "upon your release from custody you will be subject to a five (5) year term of parole supervision."

On September 24, 1999, the judge followed the plea agreement and sentenced defendant to an aggregate of twenty years in prison subject to eighty-five percent parole ineligibility and five years of parole supervision pursuant to NERA. On October 5, 2002, we affirmed the sentence after hearing argument on our excessive sentencing calendar.1

On or about April or May 2006, defendant filed his PCR petition.2 Defendant argued primarily that plea counsel was ineffective by failing to inform him about the period of five years of parole supervision. On February 13, 2007, Judge Harold W. Fullilove conducted oral argument, denied the petition, and stated:

I am satisfied that, based on the documentation that's been submitted . . . [that] there has not been a showing as to why a[n evidentiary] hearing should be held, and clearly[,] I find that the Strickland v. Washington[3] test has not been met with regard to the [PCR].

 

. . . .

 

The documentation on the plea form clearly indicates what the consequences are. They are signed by [defendant], and he indicated on the record, when asked, that he went over the form with his attorney, he understood it[,] and had no questions about it, and, therefore, I cannot realistically find that an argument that he did not understand what he said he understood when the plea was taken is of any merit.

 

I find . . . that neither prong of the Strickland test has been met. I find no egregious behavior on the part of defense attorney in preparing the plea form[,] which would . . . satisfy the first prong, and I'm well satisfied that the second prong wouldn't be met either.

 

As to the claim that . . . defense [counsel] failed to indicate that there was a [NERA] portion of this plea . . . again, the form was signed, [defendant] was questioned about it in open court, so I find no merit that the . . . [eighty-five percent] of the negotiated [twenty]-year sentence . . . [resulted in] any ineffective assistance of counsel . . . .[4]

 

On March 10, 2010, defendant moved to expand the appellate record to include the supplemental plea form and correspondence with the criminal records manager regarding defendant's failed attempts to file his PCR petition. On April 9, 2010, we denied the motion without prejudice and remanded the matter to the PCR judge to allow defendant to file a motion for reconsideration. On October 4, 2010, Judge Fullilove concluded that Rule 3:22-12 did not bar defendant's PCR petition, but denied the petition on the merits for the reasons expressed in his February 2007 order.5

On appeal, defendant raises the following points:

POINT I

THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT DID NOT ENTER INTO THE PLEA KNOWINGLY AND VOLUNTARILY.

 

POINT II

THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT. IN THE ALTERNATIVE, BECAUSE DEFENDANT PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING.

 

A. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INFORM DEFENDANT OF THE PENAL CONSEQUENCES OF NERA.

 

B. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE ALL APPROPRIATE ISSUES DURING THE DIRECT APPEAL.

 

C. CUMULATIVE ERRORS BY TRIAL AND APPELLATE COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL.

 

D. ALTERNATIVELY, THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

 

POINT III

THE PETITION SHOULD NOT HAVE BEEN BARRED BY PROCEDURAL CONSIDERATIONS.

 

A. THE PETITION WAS FILED WITHIN THE TIME BAR.

 

B. IF THE PETITION WAS NOT FILED WITHIN THE TIME BAR, IT SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S FAILURE TO DO SO WAS DUE TO EXCUSABLE NEGLECT AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

1. THE TIME BAR SHOULD BE RELAXED BECAUSE DEFENDANT'S DELAY IN FILING HIS PETITION WAS DUE TO EXCUSABLE NEGLECT.

 

2. THE TIME BAR SHOULD BE RELAXED IN THE INTERESTS OF JUSTICE.

 

C. THE PETITION SHOULD NOT BE PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland, supra, 466 U.S. at 684-85, 104 S. Ct. at 2063, 80 L. Ed. 2d at 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 claim of ineffective assistance of counsel, 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.

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).

Generally, a PCR court need only conduct an evidentiary hearing 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:

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).]

 

Further, to protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court has stated:

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 (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.

 

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

We begin by addressing defendant's claim that plea counsel provided ineffective assistance by failing to inform him of the penal consequences of his plea agreement.6

First, defendant has failed to establish that plea counsel performed deficiently. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant signed the plea forms, which referenced the eighty-five percent parole ineligibility and the five-year parole supervision terms. Moreover, defendant testified at his plea hearing that he reviewed and understood the plea forms before signing them. Therefore, defendant has failed to establish Strickland's first prong.

Additionally, even if defendant satisfied prong one of Strickland, we conclude that 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. At the plea hearing, the judge informed defendant that the maximum prison sentence for aggravated manslaughter is thirty years, and that the maximum sentence for possession of a weapon for an unlawful purpose is ten years. Moreover, if defendant had proceeded to trial on the murder and weapons-related offenses, he faced a potential sentence of life in prison. Plea counsel negotiated a favorable plea for defendant and there is no credible evidence that defendant would have received a different result. As such, defendant has failed to meet Strickland's second prong.7

Finally, defendant argues that he did not enter into the plea agreement knowingly and voluntarily. We disagree.

Rule 3:9-2 provides, in pertinent part:

The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath[,] or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

"For a plea to be knowing, intelligent[,] and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005).

Here, defendant testified that he signed and understood the plea forms, which referenced the eighty-five percent parole ineligibility and the five-year period of parole supervision terms. Thus, he "underst[ood] the nature of the charge and the consequences of the plea." Ibid.

After carefully considering the record and briefs, we conclude that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).

Affirmed.

1 On June 12, 2002, the New Jersey Supreme Court denied certification. State v. Moore, 174 N.J. 40 (2002).

2 On or about December 12, 2002, defendant submitted a pro se verified PCR petition. On January 29, 2003, the Essex Vicinage Criminal Division's criminal records manager returned the petition as defective, explaining in a letter that the petition was not completely filled out and lacked supporting documentation. On or about March 12, 2003, defendant re-submitted a petition, which was again returned in the same manner for lack of supporting documentation. On April 12, 2006, defendant re-submitted his petition, which the Criminal Division accepted.

3 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

4 The judge also held that Rule 3:22-12 barred defendant's PCR petition.

5 We need not reach whether Rule 3:22-12 bars defendant's petition because we have determined on the merits that defendant failed to establish a prima facie case of ineffective assistance of counsel.

6 Defendant's PCR counsel is different from his plea and appellate counsel.

7 We also reject defendant's argument that he was denied effective assistance of appellate counsel. The standard is the same two-prong test under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Appellate counsel "does not have a constitutional duty to raise every nonfrivolous issue requested by defendant." Jones v. Barnes, 463 U.S. 745, 746, 103 S. Ct. 3308, 3310, 77 L. Ed. 2d 987, 990 (1983). Here, it appears defense counsel chose what she considered to be the most promising argument during the 2002 appeal. We cannot "second-guess reasonable professional judgments and impose . . . a duty to raise every 'colorable' claim suggested by a client." Id. at 754, 103 S. Ct. at 3314, 77 L. Ed. 2d at 995