STATE OF NEW JERSEY v. JEFFREY CLEGG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1091-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY CLEGG,

Defendant-Appellant.

____________________________________________

May 24, 2013

Submitted December 4, 2012 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-11-1133.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 

Defendant Jeffrey Clegg appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

A Mercer County Grand Jury indicted defendant, under Indictment No. 2006-11-1133, with four first-degree counts of robbery, N.J.S.A. 2C:15-1; four third-degree counts of theft by unlawful taking, N.J.S.A. 2C:20-3(a); and four fourth-degree counts of possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e).

On January 29, 2007, pursuant to a negotiated plea agreement, defendant pleaded guilty to two counts of first- degree robbery, N.J.S.A. 2C: 2C:15-1, in exchange for the State's recommendation of concurrent fifteen-year custodial sentences, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As part of his plea colloquy, defendant acknowledged that he read the questions set forth in his plea form, initialed each page, signed the last page, and reviewed the form with his attorney. He admitted that his attorney had explained the form to him and answered his questions to his satisfaction. A five-year period of parole supervision and its consequences was explained in detail to defendant by the trial judge. The trial judge questioned defendant concerning the penal consequences of the State's plea offer as follows:

Sir, do you understand that the State is recommending that at the time of sentencing, I sentence you to a period of 15 years incarceration. Because the No Early Release Act applies to these crimes, you must serve 85 percent of that 15 year period before you would be eligible for parole.

Defendant acknowledged those consequences.

Defendant also gave a factual basis for his pleas of guilty. Defendant described each robbery noting that he wore a mask and gloves, and carried a silver plastic handgun at his side. He admitted that the point of having the weapon was to intimidate the person he was robbing so the victim would give him his money. Defendant stated that, "When I walked in, I just had the gun to my side. Right here in my right hand. They see it because they looked at."

On March 30, 2009, defendant was sentenced to concurrent thirteen-year terms on each count subject to NERA. All other charges against defendant were dismissed. Defendant appealed as excessive and we affirmed his sentence. State v. Clegg, No. A-6600-06 (App. Div. April 30, 2009).

Defendant filed a timely PCR petition. He asserted that he was entitled to relief because of ineffectiveness of his trial counsel, specifically the advice given to him concerning the sentencing consequences of his conviction. Defendant stated that his trial counsel told him to plead guilty because the trial judge would only sentence him to a ten-year term rather than the fifteen-year term outlined in his negotiated plea agreement. Defendant also argued that his trial counsel was ineffective because he failed to properly conduct a sufficient pretrial investigation and failed to communicate with him at various stages of the proceedings.

The PCR judge did not conduct an evidentiary hearing. He denied defendant's PCR request in an April 12, 2011 order which was accompanied by a comprehensive oral opinion. The PCR judge found, "There [was] no evidence that had counsel met with defendant on additional occasions that the outcome in the case would have been different or that he would not have pled guilty." As to trial counsel adequately preparing the case, investigating the merits of defendant's defense, and challenging the admissibility of defendant's statements to the police, the PCR judge determined that the assertions were "vague, speculative and conclusory[.]" It is from this order that defendant appeals.

II.

Defendant presents the following two issues for our consideration on appeal:

POINT ONE

AN EVIDENTIARY HEARING IS WARRANTED TO DETERMINE WHETHER THE DEFENDANT'S TRIAL ATTORNEY IMPROPERLY ADVISED THE DEFENDANT AS TO THE DEGREE OF SUCCESS HIS ARGUMENT FOR A LOWER SENTENCE THAN THE SENTENCE SET FORTH IN THE NEGOTIATED PLEA AGREEMENT WOULD HAVE.

POINT TWO

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, PRIOR TO HIS RECOMMENDATION TO PLEAD GUILTY TO FIRST DEGREE ROBBERY, HE FAILED TO RECOGNIZE THAT THE LINK BETWEEN THE PURPORTED THREAT AND THE WEAPON PERCEIVED TO BE PRESENT WAS TENUOUS.

Certain principles guide our consideration of the issues before us on appeal. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial 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;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" which "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 ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 463.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)[.]" Preciose, supra, 129 N.J. at 463. 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. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, 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., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. 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).

Defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (internal quotation marks omitted).]

Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair disposition of the charges. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

"It is also clear that plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002), rev'd after remand, 200 N.J. 183 (2009); see also State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996); United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). During this stage, "a defendant has the right to make a reasonably informed decision whether to accept a plea offer" and knowledge of potential sentence exposure is crucial to the decision of whether to plead guilty. Day, supra, 969 F.2d at 43; see also State v. Nichols, 71 N.J. 358, 361 (1976). Therefore, counsel's effective assistance at the plea bargain stage, as well as counsel's understanding of the sentencing consequences, is of paramount importance. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309, 319 (1948) ("Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.").

Defendant asserts that his trial counsel was ineffective by not adequately investigating the factual scenario of the robberies prior to advising defendant to plead guilty. However, the record belies defendant's factual contentions. Defendant contends that he cannot be convicted of a first-degree crime for merely showing an imitation handgun to a robbery victim in order to induce the victim to turn over property. We disagree. In the context of simulation, the definition of "deadly weapon" in N.J.S.A. 2C:11-1(c) has been read to require that there be either an object that clearly simulates a weapon or a combination of words and gestures that "complete the impression of a concealed weapon . . . ." State v. Chapland, 187 N.J. 275, 292 (2006). Here, the object clearly simulated a handgun.

Defendant also argues that his trial counsel was ineffective because defendant was led to believe he would receive a lesser sentence. Both the written plea form executed by defendant, and the plea colloquy given under oath by defendant, clearly demonstrate that a sentence of less than thirteen years was not part of defendant's plea negotiations or the basis upon which he entered his plea of guilty. While trial counsel made a forceful argument for a reduced sentence, the sentencing record is clear that this issue was not raised by defendant at sentencing.

Defendant argues that trial counsel's sentencing argument evinces defendant's understanding that he would receive a lesser sentence than the one imposed. This argument has no basis either in the record or in law. The Court has recognized the right of trial counsel to argue for a lesser sentence:

Our jurisprudence does not permit restrictions on the right of counsel to argue for a lesser sentence, or to argue against an aggravating factor or for a mitigating factor, or how the factors should be balanced, as this would deprive defendants of the needed advocacy of their attorneys and deny our courts the needed insight to administer justice.

[State v. Hess, 207 N.J. 123, 153-54 (2011).]

However, the exercise of that right does not support defendant's allegations when the record demonstrates his acknowledgment under oath of the negotiated sentence.

As to the prejudice prong, we view the record, as the PCR judge did, as establishing that the State's plea offer was accepted by defendant without consideration of any lesser sentence. In any event, guiding our consideration is "whether defendant would or could have entered a guilty plea to the purported plea offer if correctly advised concerning the sentencing consequences." Taccetta, supra, 200 N.J. at 193-94 (emphasis in original). Indeed, in order to succeed on an ineffective assistance claim, defendant must prove that there is a "reasonable probability" that, but for counsel's deficient performance, "the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. The test requires neither speculation nor a subjective evaluation, but rather a determination as to whether the proposed plea agreement, acceptable to defendant if accurately advised, was objectively fair and reasonable under all the circumstances extant at the time and, if not, whether a different plea agreement that so qualifies would have been struck between the State and defendant. We note that a thirteen-year term is within the sentencing range for a first-degree offense, and defendant was sentenced to concurrent terms.

We see no reason to disturb the PCR judge's determination that defendant did not meet his burden of proving his right to relief by a preponderance of the evidence.

Affirmed.