STATE OF NEW JERSEY v. RASHAN T. HOOSIER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3891-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAN T. HOOSIER,

Defendant-Appellant.

_______________________________________

June 20, 2013

Submitted February 4, 2013 - Decided

Before Judges Ashrafi and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment

No. 02-07-1017.

Joseph E. Krakora, Public Defender, attorney

for appellant (Alison Perrone, Designated

Counsel, on the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rashan T. Hoosier appeals from an October 1, 2010 order of the Law Division denying his petition for post- conviction relief (PCR). We affirm.

This appeal has a convoluted procedural history, but the essence of it is that defendant obtained the relief he originally sought his 2003 conviction after a guilty plea was vacated and he had a second opportunity either to stand trial on a multitude of indictments or to enter into a new plea agreement. He chose the latter option and pleaded guilty a second time. He now appeals from denial of his PCR petition after the second guilty plea. It appears that defendant seeks relief that he is simply not entitled to, namely, a capping of his sentencing exposure in accordance with the original guilty plea and sentencing without his complying with all the conditions of that first plea agreement.

The relevant facts and procedural history are not significantly in dispute. From March through August 2002, grand juries in Burlington County returned nine indictments against defendant, containing a total of thirty-eight counts. The charges included five counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and a host of weapons, assault, conspiracy, resisting arrest, and other offenses. Defendant was accused of committing store robberies, street muggings, assaults on police officers, and crimes related to those incidents.

At the time of the indictments, the twenty-four-year-old defendant already had an extensive juvenile offense history, including charges of robbery and assault, and he had also been convicted as an adult several times on charges disposed of in municipal courts and twice in the Superior Court for indictable offenses. He had previously been sentenced to five years in state prison for committing a robbery. If convicted of one or more the first-degree armed robbery charges in the pending indictments, defendant was subject to a potential extended-term sentence pursuant to N.J.S.A. 2C:44-3, which meant that he was exposed to a maximum possible sentence of life imprisonment. In addition, because the indictments pertained to separate crimes at different times and against different victims, he could have been sentenced to consecutive terms on one or more of the indictments.

In October 2002, defendant entered into a plea agreement with the Burlington County Prosecutor's Office and pleaded guilty to two counts of armed robbery. The State agreed to dismiss the other thirty-six counts and to recommend two concurrent terms of twenty years imprisonment, one of which was subject to the parole ineligibility and special five-year parole provisions of the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. As part of the plea agreement, defendant agreed to waive his right to appeal. In March 2003, the court sentenced defendant to seventeen years in prison subject to NERA.

Despite the terms of the plea agreement, defendant filed a notice of appeal on January 26, 2004. On April 29, 2004, the State filed a letter with this court stating that defendant had violated the terms of his plea agreement by appealing his convictions and that, pursuant to Rule3:9-3(d), the State would seek to annul the plea agreement. The State requested a remand to the Law Division so that it could file a motion to withdraw from the plea agreement. After defense counsel confirmed that defendant wished to pursue his appeal, we entered an order on June 10, 2004, granting the State's application for remand. In the order we stated:

Pursuant to R. 3:9-3(d), the matter is remanded to the Law Division so that the State may annul the plea agreement and for restoration of all charges. The appeal is dismissed.

After the remand, however, the State did not move immediately to annul the plea agreement and to reinstate the charges. Defense counsel and the prosecutor proceeded under the erroneous belief that our order's reference to dismissal of the appeal meant that defendant was no longer in breach of the waiver provision of his plea agreement. The prosecutor consulted with defense counsel and then wrote to the trial court on June 23, 2004, that it was "no longer necessary for the State to pursue [its] motion" to annul the plea agreement because defendant's appeal had been dismissed.

For the next two years, defendant continued to serve his seventeen-year prison sentence, but he made requests of the Public Defender's Office to reinstate his appeal. In August 2006, defendant filed a pro se PCR petition alleging ineffective assistance of counsel leading to his guilty pleas. He sought to vacate his convictions and sentence. The prosecutor's office reviewed the matter and determined that defendant had not intended to abandon his prior appeal to this court. In early 2007, almost three years after our June 2004 order remanding the matter to the Law Division, the State finally filed a motion to annul the 2003 plea agreement and to reinstate the nine indictments.

The Law Division heard the motion on May 18, 2007. New counsel for defendant explained that she had discussed the matter with defendant and informed him that his pursuit of an appeal gave the State the right to annul the prior plea agreement, that the original charges of the nine indictments would be reinstated, and that, because of his prior criminal record and the nature of the offenses, he faced a substantially heavier sentence than the seventeen years imposed if he chose to proceed to trial on the several charges. The court spoke to defendant directly, repeating that his actions would expose him to higher sentences than he was serving and asking whether he still wished to pursue an appeal of the original convictions. Defendant answered yes. The court then granted the State's motion to annul the 2003 plea agreement and reinstated the indictments for trial, entering an order to that effect on June 28, 2007. With the convictions vacated, the court set bail at $200,000 pending trial of the charges. Defendant posted a bail bond and was released from custody.

A year later, on May 18, 2008, the date scheduled for trial of one of the indictments, defendant appeared before the trial court and entered into a new plea agreement with the prosecutor's office. The new plea agreement was similar to the previous one in that defendant agreed to plead guilty to two counts of first-degree armed robbery in exchange for the State's recommendation of twenty years imprisonment subject to NERA. Again, the plea agreement indicated that defendant agreed to a "waiver of appeal." Pursuant to the second plea agreement, defendant entered pleas of guilty to two charges of first-degree armed robbery.

On August 8, 2008, the court conducted a sentencing hearing at which it heard extensively from defendant and his family members and friends requesting leniency. The court found that aggravating factors three, six, and nine were applicable to defendant's sentence, N.J.S.A.2C:44-1(a)(3), (6), (9). The court considered several mitigating factors under N.J.S.A.2C:44-1(b) as argued by defense counsel but did not find any that were applicable. The court sentenced defendant to twenty years imprisonment subject to NERA.

The Public Defender's Office filed a notice of appeal on behalf of defendant but then withdrew it on April 22, 2009, with a notation from defendant that he had not requested that a direct appeal be filed from the second conviction and sentence. On July 9, 2009, however, defendant filed this second PCR petition. He alleged ineffective assistance of counsel at the sentencing phase following his second guilty plea and by his first PCR attorney. He also alleged infringement of his due process rights on the ground that his sentence of twenty years imprisonment was a "vindictively motivated harsher sentence" than his original sentence of seventeen years.

On August 20, 2010, the trial court (a different judge) heard argument on defendant's PCR petition and denied it by oral opinion, subsequently entering the order of October 1, 2010, from which this appeal is taken.1

Defendant now raises the following arguments on this appeal:

POINT I

PRIOR TRIAL, APPELLATE, AND PCR COUNSEL WERE INEFFECTIVE IN FAILING TO CHALLENGE THE STATE'S MOTION TO ANNUL THE PLEA AGREEMENT ON THE GROUNDS THAT IT WAS UNTIMELY.

POINT II

APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO PURSUE DEFENDANT'S MOTION [FOR] LEAVE TO APPEAL AND IN MISADVISING DEFENDANT AS TO THE CONSEQUENCES OF A SUCCESSFUL LEAVE TO APPEAL.

POINT III

IN THE ALTERNATIVE, DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

POINT IV

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We find no merit in any of these arguments. As to the last point raised, the claims that defendant brought in his first pro se PCR petition were mooted when his original convictions were vacated and he accepted the second plea agreement and pleaded guilty again.

As to the first three points, the claims brought by his appellate counsel from this second PCR petition, defendant asserts that his attorney at the time of the second plea agreement was ineffective because he did not file a motion for leave to appeal from the trial court's June 28, 2007 order permitting the State to annul the first plea agreement. He claims that the prosecutor's 2007 motion to annul the first plea agreement was untimely. We assume this argument is made in support of a disposition reinstating the first plea agreement, convictions, and seventeen-year sentence.

To show entitlement to relief from a criminal conviction, defendant must satisfy both parts of the test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

Our Supreme Court adopted the Strickland test in State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the second part of the test, "[t]he defendant must 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 2068, 80 L. Ed. 2d at 698. Where ineffective assistance is alleged following a guilty plea, the defendant satisfies the second part of the Strickland test by showing "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).

We will assume for purposes of this appeal that defense counsel in 2007 did not follow defendant's request that he file a motion for leave to appeal from the June 2007 order vacating the first plea agreement and reinstating the indictments. Before that order was entered, however, the court gave defendant the choice of maintaining his original plea agreement, and he clearly and unequivocally chose to withdraw from that first agreement. Therefore, an appeal of the court's decision vacating the original plea agreement would not have been successful since it was the relief that defendant himself was seeking. "[W]hen a defendant asks the court to take his proffered approach and the court does so, . . . relief will not be forthcoming on a claim of error by that defendant." State v. Jenkins, 178 N.J. 347, 358 (2004).

In addition, the State had a right to annul the first plea agreement once defendant filed an appeal in January 2004. Rule 3:9-3(d) provides in relevant part:

(d) Agreements Involving the Right to Appeal. Whenever a plea agreement includes a provision that defendant will not appeal, the court shall advise the defendant that notwithstanding the inclusion of this provision, the defendant has the right to take a timely appeal if the plea agreement is accepted, but that if the defendant does so, the plea agreement may be annulled at the option of the prosecutor, in which event all charges shall be restored to the same status as immediately before the entry of the plea. In the event the defendant files an appeal in a case in which the plea agreement included a provision that the defendant will not appeal, the State must exercise its right to annul the plea agreement no later than seven days prior to the date scheduled for oral argument or submission without argument.

When taking defendant's original plea of guilty on October 21, 2002, the court followed the requirements of this rule. The court stated to defendant: "Now, you also understand that as a result of this plea agreement, you are waiving your right to appeal which means that if, in fact you do file an appeal in this case, as you have a constitutional right to do, that the plea bargain is no longer binding upon the State. Do you understand that?" Defendant answered "yes."

The consequences of pursuing an appeal were again explained to defendant at the time of the State's motion in 2007 to annul the plea agreement. Defendant was given an opportunity to retain his 2003 plea agreement and the seventeen-year sentence that was imposed. He unequivocally stated that he wished to pursue an appeal, knowing that an appeal would result in annulling his plea agreement and sentence. Since he did not agree to abide by his obligation under the original plea agreement, the State had a right to annul that agreement and to reinstate the original charges.

Defendant argues that the State's request to annul the agreement was untimely because there was no appeal pending at the time of the 2007 motion. He refers to the provision of Rule 3:9-3(d) that requires the State to "exercise its right to annul the plea agreement no later than seven days prior to the date scheduled for oral argument or submission without argument." But the quoted provision is a reference to oral argument or submission of the case in the Appellate Division, not in the trial court. The State complied with the timeliness provision by requesting in April 2004 that this court remand the matter long before the appeal was scheduled for oral argument or submitted for decision without argument.

Nor can defendant allege prejudice now by the three-year delay in the State's motion before the trial court to annul the plea agreement. If defendant believed the delay had caused him prejudice, he had the option of retaining the original plea agreement, but he declined to do so.

We also reject defendant's argument that his attorney at the second sentencing was ineffective because he did not argue for mitigating factors that would have reduced the length of his sentence. Our review of the sentencing transcript reveals that the attorney argued for a number of mitigating factors, but the trial court declined to find any, as it had the discretionary authority to do. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 216 (1989).

We also find no showing in this record that the twenty-year sentence was vindictive. At defendant's original sentencing in 2003, the trial court imposed a lower sentence than the terms of his first plea agreement, but it was under no obligation to do so again after defendant caused his plea agreement to be annulled and then pleaded guilty a second time. When defendant decided not to adhere to the terms of the first plea agreement and to pursue an appeal, the court and his own attorney explained to defendant that he was giving up the seventeen-year sentence in exchange for his right to stand trial on all the charges contained in the nine indictments and that the charges exposed him to a much more severe sentence, possibly up to life imprisonment. Defendant insisted on pursuing that option. When the time came to stand trial, he changed his mind and again opted for a plea agreement with a twenty-year maximum potential sentence.

Because of defendant's extensive criminal record and the number of charges that were being disposed through the plea agreement, the twenty-year sentence was not unjust or vindictive; it was simply the sentence that defendant bargained for when he pleaded guilty a second time. He had no right to cap his exposure to seventeen years in prison while he exercised his right to stand trial or to enter into a new plea agreement with the State.

Finally, we conclude that the trial court did not abuse its discretion in deciding the matter without holding an evidentiary hearing. See R. 3:22-10; State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992). Given the relevant facts that were apparent on the documentary record, and the nature of defendant's contentions, factual evidence from his several attorneys or defendant himself would not have assisted the PCR court in evaluating defendant's claims.

Affirmed.

1 The order granted the PCR in part by adjusting defendant's jail time and prior service credits, but it denied his application to vacate his convictions.