STATE OF NEW JERSEY v. COREY MAGGETTE

NOT FOR PUBLICATION WITHOUT THE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.

COREY MAGGETTE, a/k/a AL

CORREY MAGGETTE,

Defendant-Appellant.

______________________________

June 17, 2014

Submitted May 27, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 05-10-1435, 05-11-1546, 06-03-0280 and 06-07-0923.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Camelia A. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

Defendant was charged in four indictments with various drug and weapons-related offenses. All of the indictments charged either the distribution of a controlled dangerous substance (CDS) or the possession of CDS with intent to distribute as well as school zone offenses. Three of the indictments included second-degree charges and one included charges of certain persons not to possess a firearm and the possession of a firearm while committing a drug offense.

At a pre-trial conference on the morning of trial, defendant requested permission to obtain new counsel, explaining that he had been incarcerated for thirteen months and his attorney had not obtained his grand jury transcripts or filed any motions on his behalf.1 The judge denied this request, at which point defendant, pursuant to an agreement with the State, entered a guilty plea to one count of third-degree distribution of CDS in a school zone (Count Ten of Indictment 05-11-1546), three counts of third-degree possession of CDS with intent to distribute in a school zone (Count Three of Indictment 05-10-1435, Count Three of Indictment 06-03-0280, and Count Three of Indictment 06-07-0923), two counts of second-degree possession of CDS with the intent to distribute (Count Two of Indictment 06-03-0280 and Count Two of Indictment 06-07-0923), and second-degree possession of a weapon during the commission of a CDS offense (Count Twelve of Indictment 06-07-0923). In exchange for defendant's guilty plea, the State agreed to dismiss all remaining charges under all four indictments and to recommend a twenty-year term with ten years of parole ineligibility. The judge, however, agreed to sentence defendant below the State's offer to sixteen years with eight years of parole ineligibility.

At sentencing, defendant renewed his complaints about counsel's representation and requested to retract his guilty plea. After an extended discourse, the judge determined that defendant had become disruptive, had him removed from the courtroom, and then proceeded to sentence him to sixteen years with eight years of parole ineligibility, as she had originally indicated. Following his sentencing, defendant filed a motion to withdraw his guilty plea, which was denied.

Defendant's appeal was heard on our Excessive Sentencing Oral Argument (ESOA) calendar, after which we affirmed his sentence.

Defendant filed a timely PCR petition in which he argued that the court's refusal to allow him new counsel deprived him of effective assistance of counsel, and requested an evidentiary hearing. Assigned counsel filed an amended PCR petition and supporting brief, arguing that defendant had been deprived of effective assistance of both trial and appellate counsel, and that defendant's plea was involuntary.

The same judge before whom defendant pled guilty and was sentenced Judge Marilyn Clark heard argument on defendant's PCR petition, after which she denied relief, concluding that defendant had in fact received effective assistance of counsel and had voluntarily pled guilty. The judge reasoned:

Now, all right, under all of those circumstances, I just complete[d] this hearing by indicating I believe his plea was voluntary. I believe there was no basis to criticize [defense counsel] who tried very hard for him. And who got the plea offer down to a sixteen with eight, many years less than the original plea offer and many years less than the Prosecutor wanted. I believe he had a substantial prior juvenile and adult history so he was well familiar with the system. He was not someone who didn't understand what was going on. He well understood it.

These were four cases with extremely strong proofs. Every single one of them was extremely strong proofs. We had come to the morning of trial, he was still trying to get a better deal. He was very angry, he wants to fire [defense counsel] and get [another counsel] who hasn't even been retained. He was seeking to delay his trial. I believe he did know how strong the proofs were in this case and was looking to manipulate an adjournment.

At the sentence, he was extremely disruptive and I finally removed him. I probably in twenty-one and a half years as Judge removed a defendant three or four times over twenty plus years as a Judge. It is a last resort but I had no, as I've indicated, I had absolutely no choice.

He received a very fair sentence. I believe his plea was voluntary. I believe the factual basis, while leading questions which I generally disfavor, I allowed it on that morning because he was hostile.

As far as the appellate attorney, the appellate attorney looked at the same file I did I'm sure and looked at the same proofs I did and felt that their best avenue was to simply go to the sentencing panel. I find nothing inappropriate about that or ineffective about that.

Under all of these circumstances, and I've tried to lay it out at great length here, this defendant received a plea that I can't imagine a lower sentence given the several cases in front of me. And he could have received very fairly a much higher sentence.

On appeal, defendant argues that he was entitled to an evidentiary hearing on his claims that his plea counsel was ineffective. We find no merit to this contention, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Clark in her oral opinion of February 23, 2011. We add only the following comments.

It is 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 but for counsel's deficiency, he "would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 350-51 (2012) (internal quotation marks omitted), cert. denied, ___ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58 (1987). Moreover, a defendant asserting a claim of ineffective assistance of counsel based on his attorney's failure to file a suppression motion must not only satisfy both prongs of the Strickland test, but he or she also must prove that the motion to suppress claim was meritorious. State v. Goodwin, 173 N.J. 583, 597 (2002); State v. Fisher, 156 N.J. 494, 501 (1998).

In this regard, an evidentiary hearing should not be granted unless the defendant establishes a prima facie claim in support of his PCR petition. See State v. Preciose, 129 N.J. 451, 462 (1992). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Marshall, 148 N.J. 89, 158 ("If the court perceives that . . . the defendant's allegations are too vague, conclusory, or speculative[,] . . . an evidentiary hearing need not be granted.") (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Governed by these standards, we are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. Simply stated, defendant has failed to advance any basis, legal or factual, to support the filing of any pre-trial motion, much less demonstrate its success. Indeed, defendant has not even identified what pre-trial motions should have been filed, and therefore without a threshold showing, an evidentiary hearing on this bald, unsupported claim is not warranted.

Similarly lacking in support is defendant's claim of ineffectiveness based on counsel's failure to provide defendant with a transcript of the grand jury presentation. The record indicates defense counsel gave defendant all relevant documents pertaining to counsel's strategy, made efforts to negotiate with the State a better plea deal for defendant, and was prepared for trial on the day defendant eventually entered his guilty plea. Defendant, on the other hand, has simply failed to identify from the discovery provided what in the grand jury presentation would have made counsel's failure to produce it deficient or how it would have changed the outcome. Simply put, defendant has not demonstrated any deficiency in defense counsel's conduct or any resultant prejudice to warrant an evidentiary hearing.

We are also satisfied, for the reasons stated by Judge Clark, that defendant's guilty plea was entered freely, knowingly and with a proper factual basis. Indeed, throughout defendant's various efforts to withdraw that plea, he never asserted his innocence, but merely expressed concern over the length of his sentence. Such a concern, however, constitutes neither grounds for retraction of a guilty plea nor a basis for a claim of ineffective assistance of counsel.

Affirmed.

1 Defendant maintained that his family had spoken to an attorney, who was willing to represent him if he terminated counsel's representation. During a break in the proceedings, the judge, in the presence of the prosecutor and defense counsel, called the attorney to inquire about his possible representation of defendant. The judge placed on the record that the attorney had informed her that he had spoken to defendant's family and that he had indicated he could not represent defendant because the family did not have the funds to retain him.