STATE OF NEW JERSEY v. HISHAM AMIR MUHAMMAD

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HISHAM AMIR MUHAMMAD,

Defendant-Appellant.

October 28, 2014

 

Submitted October 16, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-0923.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Hisham Amir Muhammad appeals from a June 22, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Because the issue defendant raises has already been conclusively determined adversely to him in a prior appeal, we affirm. R. 3:22-5; State v. Marshall, 173 N.J. 343, 350-53 (2002) (holding that Rule 3:22-5 bars PCR claims which are either identical or "substantially equivalent" to those previously adjudicated on direct appeal or in a prior PCR petition); State v. McQuaid, 147 N.J. 464, 484 (1997).

Defendant was named in nineteen counts of a forty-five count indictment charging that he, along with several others, engaged in a pattern of racketeering that included the commission of various drug and weapons offenses. Pursuant to a negotiated plea agreement, defendant pled guilty on August 13, 2008, to first-degree racketeering, N.J.S.A. 2C:41-2(c) (count one); second-degree conspiracy to distribute cocaine and/or heroin, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:35-5(a)(1), (b)(2) (count three); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:12-1(b)(1) (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count twenty-one); and fourth-degree interception of emergency communications for unlawful purposes, N.J.S.A. 2C:33-21 (count forty-four). The State agreed to dismiss the remaining charges.

Prior to sentencing, defendant filed a motion to withdraw his guilty plea. In a comprehensive twenty-six page written decision, Judge Douglas M. Fasciale detailed his findings on each of the arguments advanced by defendant. Considering the factors set forth in State v. Slater, 198 N.J. 145 (2009), the judge found no basis to allow defendant to withdraw his guilty plea. Having reviewed the transcript of the plea hearing, over which he had also presided, Judge Fasciale found that defendant had established an adequate factual basis for the crimes to which he had pled guilty. He concluded

The Court accepted Mr. Muhammad's plea as being voluntary and with his full knowledge of all his rights and responsibilities. The Court has considered the four factors enumerated in Slater and none are sufficiently compelling in the defendant's favor to permit retraction. The defendant has failed to issue a colorable claim of innocence for the charges to which he pled guilty. He has failed to show that he was misinformed about a material element of the plea negotiation. He has failed to show that he did not understand the material terms and relevant penal consequences of his guilty plea. He has failed to show that his reasonable expectations under the plea agreement were not met. He has failed to make a plausible showing of a valid defense against the charges, nor credibly demonstrated why that defense was forgotten or missed at the time of the plea. He has failed to show that an adequate factual basis for the plea was not elicited. He has failed to show that he will be prejudiced by enforcement of the agreement, and in the alternative, the State has furnished significant evidence that it would be prejudiced were the Court to permit withdrawal. As a result, the defendant's motion to withdraw the plea is denied.

Consistent with the plea agreement, defendant was sentenced on June 23, 2009, to an aggregate term of thirteen years imprisonment, of which six years are subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.1 Defendant also received a concurrent four-year prison term for violating his probation.

On appeal, defendant challenged his sentence as excessive, as well as the order denying his motion to withdraw his guilty plea. We affirmed the sentence on an Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11. State v. Muhammad, No. A-0918-09 (App. Div. Aug. 27, 2010). We also affirmed the denial of defendant's motion to withdraw his guilty plea for the reasons set forth in Judge Fasciale's written opinion.

Defendant then filed the PCR petition under review. Following oral argument, Judge Robert J. Mega denied the petition on both procedural and substantive grounds. Pertinent to this appeal, the judge found that defendant's argument, that his guilty pleas to racketeering and the underlying predicate offenses were not supported by an adequate factual basis, was barred by Rule 3:22-5 since it was previously litigated on direct appeal. The court also reviewed the plea transcript and independently determined that the factual basis elicited from defendant adequately established his guilt to each of the admitted crimes. Hence, the judge concluded that defendant failed to establish that trial counsel was ineffective in failing to advise him that his guilty plea lacked a sufficient factual basis.

Defendant raises the following issue on appeal

POINT I

THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING BECAUSE THE PETITION AND THE INDEPENDENT RECORD ESTABLISHED THAT TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING PETITIONER TO PLEAD GUILTY TO CRIMES WITHOUT AN ADEQUATE FACTUAL BASIS TO SUPPORT THE PLEAS

Based on our review of the record and the applicable law, we conclude this argument lacks sufficient merit to warrant extended discussion. R.2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Mega in his thorough oral opinion. We add the following comments.

In order to establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must then show that counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, the defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction." Id. at 58.

Rule 3:22-5 provides that a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . ." Thus, the application of this standard requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." Marshall, supra, 173 N.J. at 351 (citations and internal quotation marks omitted); see also McQuaid, supra, 147 N.J. at 484.

Defendant's assertion of ineffective assistance of counsel is an attempt to re-litigate his argument raised on direct appeal challenging the denial of his motion to withdraw his guilty plea. Essentially, this claim is substantially equivalent to his argument before the trial court and on direct appeal that his plea lacked an adequate factual basis. PCR is not another avenue for a defendant to submit the same arguments asserted on direct appeal. See McQuaid, supra, 147 N.J. at 484. Defendant's assertion of ineffective counsel is thus barred by Rule 3:22-5.

Addressing the merits, we begin with a review of the applicable legal principles that guide our analysis. "A defendant who elects to plead guilty to a criminal offense gives up fundamental constitutional rights, including the right to be presumed innocent until determined guilty beyond a reasonable doubt, the guarantee against self-incrimination and the right to confront one's accusers." State v. McDonald, 211 N.J. 4, 15 (2012) (citing Slater, supra, 198 N.J. at 154)(citation omitted). In order to ensure that those rights are not relinquished involuntarily or unknowingly, a judge must determine 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." R. 3:9-2.

The factual foundation for the plea "may take one of two forms[:] defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[] . . . facts constituting the essential elements of the crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). "The trial court 'must be satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Ibid. (quoting State ex rel. T.M., 166 N.J. 319, 327 (2001) (internal quotation marks and citation omitted)). Our review of the trial court's factual findings at a defendant's plea hearing is deferential. Id. at 229.

Guided by these principles, and having conducted our own review of the plea transcript, we conclude, as did the trial judge and the panel on direct appeal, that there were no grounds to vacate defendant's guilty plea and that the factual basis elicited to support it was sufficient. Accordingly, trial counsel was not ineffective in allowing defendant to plead guilty without an adequate factual basis.

Finally, defendant contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 352-53 (2013) (citing State v. Preciose, 129 N.J. 451, 462 (1992)); R. 3:22-10(b).

Affirmed.

1 Only counts five and twenty-one were subject to NERA.