STATE OF NEW JERSEY v. ANNIE LAWRENCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2782-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNIE LAWRENCE,

Defendant-Appellant.

____________________________

September 5, 2014

 

Submitted May 6, 2014 - Decided

 

Before Judges Hayden and Rothstadt.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-0586.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel; Susan L. Berkow, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Annie Lawrence appeals from the Law Division's denial of her first petition for post-conviction relief (PCR). She previously pled guilty pursuant to a written plea agreement to one count of second-degree robbery, N.J.S.A. 2C:15-1, after a grand jury indicted her and her co-defendant with that offense and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2. The charges arose from their January 22, 2010 robbery of an elderly woman in a supermarket's parking lot. On the same day they were indicted for that crime, the grand jury also returned a separate indictment charging the two with eight additional offenses for events that occurred in November 2009 and January 2010 involving different victims.1

Defendant's plea agreement provided that if she cooperated, the State would recommend a sentence of no more than five years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and seek dismissal of all of the remaining charges in both indictments. After denying defendant's motion to withdraw her plea, the court ultimately sentenced her in accordance with her plea agreement. All of the remaining counts in both indictments were dismissed. Defendant did not appeal her conviction or sentence.

Instead, defendant filed her petition for PCR, arguing that she was innocent of the crime to which she pled guilty, and that she would not have pled guilty if her trial counsel had properly explained to her that "85% parole ineligibility" meant "more than four years in jail." She also argued that trial counsel was ineffective because he "encourage[d] or pressure[d]" defendant to plead guilty, knowing that defendant stated she had nothing to do with the offense. The PCR court considered her petition without conducting an evidentiary hearing and ultimately denied it, finding that defendant failed to make a prima facie showing of ineffective assistance of counsel.

On appeal from that decision, defendant argues:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HER FOURTEENTH AMENDMENT RIGHT TO BE PROTECTED AGAINST ENTERING A GUILTY PLEA TO A CRIME SHE DID NOT COMMIT WAS VIOLATED; THAT HER FOURTEENTH AMENDMENT RIGHT TO BE PERMITTED TO WITHDRAW A GUILTY PLEA FOR A CRIME SHE DID NOT COMMIT WAS VIOLATED; AND THAT, AS CORROBORATED BY TRIAL COUNSEL'S FAILURE TO INFORM DEFENDANT OF THE MANDATORY PERIOD OF PAROLE SUPERVISION,[2] HER FOURTEENTH AMENDMENT RIGHT TO BE INFORMED OF THE CONSEQUENCES OF HER PLEA WAS VIOLATED.

 

POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

 

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

POINT IV THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-3, R. 3:22-4, AND R. 3:22-5, AND BECAUSE THE CONSEQUENCE THAT A DEFENDANT PLEADING GUILTY TO A CRIME SHE DID NOT COMMIT HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM WARRANTED RELAXATION OF PROCEDURAL BARS UNDER THE "INJUSTICE" CLAUSE OF R. 1:1-2.

 

We have reviewed the record and considered these arguments, and we affirm as we are satisfied defendant's arguments are without merit.

We discern the following from the facts testified to by defendant at her plea hearing.

On January 22, 2010, defendant was a passenger in a car she was renting,3 and which was being driven by her co-defendant Lillian R. Allen.4 Allen drove the two of them to a local supermarket. While in the parking lot, Allen stopped the car, got out and robbed an elderly woman of her pocketbook.5 At her plea hearing, defendant specifically confirmed that she knew that Allen was going to rob the victim, and that in fact she and Allen later shared the proceeds of their crime:

[Defense Counsel]: Miss Lawrence, when you were in the car [at the supermarket] parking lot your codefendant, Lillian Allen, got out and robbed an older woman?

 

A. Right.

 

[Defense Counsel]: And you were aware that she was planning on robbing this woman?

 

A. Yes.

 

[Defense Counsel]: And then after she robbed this woman she got back into your vehicle, right?

 

A. Yes.

 

[Defense Counsel]: You drove off?

 

A. Yes.

 

[Defense Counsel]: And you guys split up whatever she received in the pocketbook that she took from this woman?

 

A. Yes.

 

[Defense Counsel]: She used force in taking the pocketbook from this woman? You were not aware that she did?

 

A. No.

 

[Defense Counsel]: But you still knew she was going to rob this woman.

 

A. Yes.

 

[Court]: You drove her there?

 

A. She drove herself.

 

[Court]: And you went with her because you knew she was going to grab her purse or grab some money from somebody?

 

A. We actually went shopping. She saw the lady and she robbed her when she came out [of] the store. . . . We were going to go grocery shopping and she saw the lady and she robbed her.

 

. . . .

 

[Court]: You shared the proceeds?

 

[A.] Yes.

 

. . . .

 

[Court]: Having shared the proceeds and knowing where the proceeds came from and the intent of the codefendant to get out of the car and commit the robbery, you knew she was going to rob the person, she saw the woman?

 

[A.] Yes.

 

Based on this exchange, the court accepted defendant's guilty plea.

The terms of defendant's plea were incorporated into a written plea agreement which defendant signed. In that agreement, defendant acknowledged that she committed the offenses to which she was pleading guilty (question two). She also confirmed that she understood that the charge to which she pled "require[d] a mandatory period of parole ineligibility" and that "the minimum [and maximum] mandatory period of parole ineligibility is 85% of 5 years." (questions 7 and 7a).6

At the plea hearing,7 defendant first confirmed to the court that she had read and understood the terms of her plea agreement, and that she was pleading guilty "[i]n exchange for . . . the prosecutor . . . recommend[ing] five years in New Jersey State Prison with 85% parole ineligibility under the N.E.R.A. act." During the hearing, she also confirmed her understanding of NERA's applicability as previously explained to her by her attorney:

[Defense Counsel]: And I've explained to you you're getting five years New Jersey State Prison. You'll have to do 85% of that time before you become eligible for parole, is that correct?

 

A. Yes.

 

She also confirmed she understood that the charge to which she was pleading guilty was robbery as a second-degree crime. Under questioning by the prosecutor, defendant confirmed that she "understood everything that was in the plea form." When questioned by the court, she said she answered all of the questions on the plea form truthfully and signed the agreement. She confirmed that she understood "each and every question," and had gone over "each and every question" on the form with her attorney, who answered any questions she had and with whom she was satisfied.

Immediately prior to her sentencing, the court considered defendant's motion to withdraw her guilty plea. In her supporting brief and at oral argument, defendant argued that she did not understand the consequences of her guilty plea because "she did not know at the time of her plea that this conviction and the requirement for a NERA parole disqualifier would prevent her from entering ISP."8 Also, she claimed that she was innocent of robbery. The court considered these arguments and denied defendant's motion, finding that she failed to satisfy the requirements for a withdrawal of a guilty plea as defined in State v. Slater, 198 N.J. 145 (2009). It found that not only did defendant understand the applicability of the NERA parole disqualifier, but, also, the fact that it prevented her from being a candidate for ISP was not a reason to permit her to withdraw her guilty plea. After denying the motion, the court sentenced defendant to five years imprisonment subject to NERA.

In support of her subsequent PCR petition, defendant filed a certification in which she essentially raised the same issues she had argued in her earlier motion to withdraw her plea. Specifically, she stated that she repeatedly told her trial counsel that she "was not guilty of any crime in this matter [and] that [she] did not know that . . . Allen was contemplating or had decided to rob anybody." She also stated that she in fact "told [Allen] to give the pocketbook back to the woman."9 She claimed that her attorney "did not explain to [her] that 85% without parole meant that [she] would have to be in jail for more than four years." She also explained why she pled guilty:

I only pled guilty because at the time of my plea, I had already been in jail for about nine months and I thought that I would only have to be in jail for another year. My attorney had advised me that this was a good deal for me, but I was innocent and yet let him guide me to jail despite this fact. I think I just wanted to get past this and did not want to have to go through trial. There is plenty of evidence in this case that indicated my innocence, however, my attorney did not use this evidence when he presented my motion to withdraw my guilty plea. This too was ineffective assistance.

 

In his comprehensive oral opinion, the PCR judge, Alan A. Rockoff, denied defendant's petition, finding that her claims were procedurally barred under Rule 3:22-3, -4(a), and Slater, supra, or were otherwise lacking in merit. First, the PCR judge found defendant had previously raised and adjudicated her arguments in her motion to withdraw her plea, and that they were therefore barred Rule 3:22-4(a). The PCR judge found nothing in the record demonstrating that trial counsel had "encouraged and/or pressured [defendant] to plead guilty despite her maintaining her innocence." In addition, defendant alleged that trial counsel had failed to present certain facts in support of her claim she was innocent, such as defendant's informing the police "that her previous crimes, credit card fraud, demonstrate[d] that she is not a robber," or Allen's inculpating herself and exculpating defendant. However, the PCR judge found that these arguments had been previously raised, and that they could have been raised on direct appeal from defendant's conviction and the court's denial of her motion to withdraw her plea. Trying to incorporate them now into a PCR petition constituted "shopping around for another forum just to hear the same evidence that could have been heard in a direct appeal."

The judge then weighed the procedural bar against defendant's "entitle[ment] to fairness and protection of [her] due process rights," and the "strong interest of the State in the finality of a Plea." In that regard, he evaluated defendant's claim of innocence and compared it to her sworn testimony before the plea court. He specifically reviewed the plea judge's last question to defendant and her answer, and was satisfied that defendant "understood the [c]ourt's complete digesting of the event, and she responded to the digested and concise characterization . . . by the court." She was not, as PCR counsel argued, only answering the last part of the plea court's question.

The judge also reviewed the contents of the plea form and defendant's other testimony confirming her guilt at the plea hearing. The judge found, based on the totality of the circumstances, that there was no colorable claim of innocence under Slater, supra, that would warrant lifting the bar of Rules 3:22-3 or -4.10

The PCR court then turned to defendant's claim that counsel did not explain to her that the NERA parole disqualifier applied to her five-year sentence would result in her serving more than four years in prison. The court found that counsel's failure to "take the additional step of calculating what 85 percent of five years means, does not rise to the level of deficiency required under the Strickland/Fritz test, [p]articularly in light of the experience that the defendant had with the judicial system and the prison system, before this incident occurred." He then reviewed defendant's responses to the questions on her plea form and her statements at the plea hearing, which confirmed that she understood the parole disqualifier that was to apply to her sentence. He concluded that she in fact understood the impact of the NERA parole disqualifier and stated:

So it was evidenced through this Plea Form, and the questioning by [defendant's] Plea counsel, the State and the Court, [defendant] clearly indicated that she understood every question on that Plea form, one of which regarded the condition of the 85 percent Parole eligibility of her five year State Prison term. It would be . . . incredulous to say well she understood everything else but she didn't understand that. I mean if you take the totality of the circumstances the entire process that went through to get point with all of the status conferences, and all the discussions, and all of the efforts made to make certain on this protracted record that she was aware of the fact that she knew that she was involved in this robbery. She knew she shared the proceeds. She knew the time she was going to serve. She . . . knew about the 85 percent Parole ineligibility, then the standards for Strickland Fritz have not been met by [defendant], and therefore the Petition for [PCR] is denied.

 

This appeal followed.

We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" 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).

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts in the light most favorable to the petitioner. Ibid.

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie case demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative." Ibid.; State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

We are satisfied that the PCR court properly found that defendant failed to prove a prima facie case of ineffective assistance of counsel, and correctly denied defendant's petition for the reasons stated in Judge Rockoff's comprehensive June 14, 2012 oral decision.

Defendant's argument that her trial attorney was ineffective because she failed to advise her about the number of years and months the NERA parole disqualifier amounted to is without sufficient merit to warrant further discussion, Rule. 2:11-3(e)(2), in light of counsel's and the court's repeated questioning of defendant about her understanding of that aspect of her plea. At no time did defendant ever ask what the period amounted to, or what eighty-five percent meant as it related to her eligibility for parole. Rather, defendant repeatedly confirmed her understanding of the consequences of her plea.

The other issue defendant raised, that her trial counsel failed to prevent her from pleading guilty to a crime she did not commit, is equally without merit because she confirmed her guilt during her plea allocution. She was charged with second-degree robbery as a principal, N.J.S.A. 2C:15-1, but she was not charged as an accomplice. N.J.S.A. 2C:2-6.

The Criminal Code defines robbery as follows:

a. Robbery Defined. A person is guilty of robbery if, in the course of committing a theft, he:

 

(1) Inflicts bodily injury or uses force upon another; or

 

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

 

(3) Commits or threatens immediately to commit any crime of the first or second degree.

 

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

 

[N.J.S.A. 2C:15-1(a).]

A person can be guilty as an accomplice of an offense committed by another if he or she is "legally accountable" for the conduct of that other person. N.J.S.A. 2C:2-6(a). "[A]n accomplice to a crime is legally responsible for 'the conduct' of the person who actually commits the crime." State v. Whitaker, 200 N.J. 444, 457 (2009)(quoting N.J.S.A. 2C:2-6). "A person is legally accountable for the conduct of another when . . . [h]e is an accomplice of such other person in the commission of an offense." N.J.S.A. 2C:2-6(b)(3). "A person is an accomplice of another person in the commission of an offense if . . . [w]ith the purpose of promoting or facilitating the commission of the offense[,] he . . . [a]ids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6(c).

"An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal." Whitaker, supra, 200 N.J. at 458. Additionally, "[t]o be found guilty as an accomplice, a defendant must not only share the same intent as the principal who commits the crime, but also must 'at least indirectly participate[] in the commission of the criminal act.'" Id. at 459 (second alteration in original) (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993)).

We are satisfied that defendant's responses to her questioning during the plea hearing, along with the logical inferences from her answers, demonstrated that, at or before the robbery's occurrence, she shared in Allen's intent to rob their victim, in the manner that Allen carried out the crime, and assisted her in its commission. It is true that defendant did not get out of the car and physically rob the victim. However, defendant testified that she knew that Allen, who was driving for all intents and purposes defendant's car, was getting out of the car to rob the victim. Moreover, it is logical to assume that because Allen did not use a weapon to rob the victim, defendant had to have known that minimally Allen would be threatening the victim "with or purposely put [her] in fear of immediate bodily injury." And, once she did, there is no dispute that defendant and Allen fled from the scene in defendant's car and then shared the proceeds of their criminal enterprise.

Once defendant failed to take action to withdraw from her participation in the crime before it was committed, she became an accomplice subjecting her to criminal charges as if she committed the crime herself. 11 N.J.S.A. 2C:2-6(c)(1)(b). Therefore, despite defendant not having gotten out of her car to commit the actual robbery, her admitted-to conduct established her liability for the crime. By her own admission, defendant demonstrated that she shared Allen's intent to commit the robbery and assisted her in completing the act by minimally providing the transportation to flee the scene in advance of the crime being committed. Id. at 461 ("Defendant is an accomplice to [a] robbery . . . only if he had the purpose of promoting or facilitating the theft.") (internal citation and quotation marks omitted).

Therefore, assuming defendant's PCR petition was not procedurally barred, she could not establish the first prong of Strickland/Fritz, because she failed to establish that her attorney's performance was defective by allowing her to plead guilty, despite defendant's alleged subjective belief that she was not guilty because she never actually left the car. Moreover, even if defendant proved her attorney's performance was subpar in some fashion, her bald assertions did not establish the second prong of the test that the outcome would have been better for her. In light of her being sentenced to the lowest possible term for a second-degree crime, and the dismissal of the numerous counts in the other indictment as part of the plea, we are satisfied that there is no evidence that she could have done any better under the circumstances had she gone to trial.

However, we agree with Judge Rockoff that the petition was procedurally barred, essentially for the reasons he stated in his comprehensive decision. PCR petitions cannot be used as substitutes for direct appeal. R. 3:22-4(a).

Affirmed.

1 The second indictment charged defendant with three additional counts of second-degree robbery and conspiracy to commit robbery, as to three separate victims, as well as two counts of third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6(h), as to two other victims.

2 We assume from her actual argument that defendant intended the reference to be to parole ineligibility rather than parole supervision.

3 According to defendant, she rented the vehicle so that she and her co-defendant could travel to Georgia.

4 At the time, defendant was sixty-three years old. Evidently, Allen is defendant's granddaughter.

5 It was alleged that Allen used force against the victim, knocking her down and causing her physical injury.

6 The plea form was not completed in accordance with its instruction that the number of years and months should be filled in. As noted, it only referred to "85% of 5 years."

7 We note that this was not the first time defendant was involved in the criminal justice system or in entering a guilty plea. Prior to this offense, defendant had eleven convictions for indictable offenses for which she served six prison terms, as well as numerous municipal court convictions that also involved jail sentences.

8 The Intensive Supervision Program "is essentially a post-sentence, post-incarceration program of judicial intervention and diversion back to the community." State v. Clay, 230 N.J. Super. 509, 512 (App. Div. 1989), aff'd, 118 N.J. 251 (1990). The program is not available to defendants being sentenced, but to certain inmates serving prison sentences. Id. at 514. It is "a program of conditional release from custody a form of intermediate punishment between incarceration and probation for certain carefully screened non-violent offenders" who have already been sentenced. State v. Abbati, 99 N.J. 418, 433 (1985).

9 Allen evidently wrote a letter in support of defendant's petition, stating that defendant "did not do any of the robberies . . . . I was the one who did the robbery."

10

Except as otherwise required by the Constitution of New Jersey, a petition [for PCR] pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending.

[R. 3:22-3]

 

Any ground for relief not raised in the proceedings resulting in the conviction, . . . ,or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:

 

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

 

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

 

. . . .

 

A ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.

 

[R. 3:22-4(a)]

11 "[A] person is not an accomplice in an offense committed by another person if . . . [h]e terminates his complicity under circumstances manifesting a complete and voluntary renunciation . . . prior to the commission of the offense." N.J.S.A. 2C:2-6 (e)(3).