STATE OF NEW JERSEY v. JOHN BIDDLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3128-12T20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN BIDDLE,

Defendant-Appellant.

______________________________________

August 22, 2014

Submitted May 12, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0485.

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial without an evidentiary hearing of his petition for post-conviction relief (PCR). He contends his trial counsel was ineffective for failing to convince him to plead guilty. Because defendant chose to go to trial despite his counsel's advice, we affirm.

I.

On October 30, 2006, N.A. was caring for her two-year-old sister, M.D., while working alone at her family's store in Atlantic City. When closing the store, N.A. placed M.D. in the backseat of her Toyota Matrix, and went back to the store to lock the front door. As N.A. returned to her car, she saw defendant standing next to the car. Defendant brandished a silver knife and told N.A. to give him her purse "and he wouldn't have to spill [her blood]."

N.A. gave defendant her purse, but defendant entered the backseat of the car next to M.D. and ordered N.A. to drive to Pleasantville. During the drive, he climbed into the front seat, and gave her directions to a housing development where he ordered her to stop the car. There, with the knife still in his hand, defendant ordered N.A. to take off her clothing. Crying, shaking, and scared, N.A. took off her clothing while defendant repeatedly stabbed the front console of the car with his knife. Defendant then asked N.A. what she thought he should do with her. N.A. falsely stated that she had been raped at age fourteen and now had AIDS. Defendant told N.A. to put her clothes back on, but, in her rush to do so, she neglected to put on her underpants, leaving them behind in her car.

After N.A. redressed, defendant told her to drive back to Atlantic City. N.A. drove to a parking lot in Atlantic City, where defendant ordered the victims out of the car. Defendant threatened to harm N.A. if she called the police, and then drove away with N.A.'s car.

With the help of a pedestrian, N.A. called 9-1-1. She gave police a description of defendant and her Toyota Matrix, including the license plate number. Thirty-five minutes later, an officer spotted defendant, fitting N.A.'s description, exiting from the Toyota Matrix and carrying a woman's purse. The officer stopped defendant, recovered the purse, and found on defendant a silver knife, woman's underpants, and heroin he bought with money taken from N.A.

N.A. identified defendant as her assailant, and confirmed the purse and underpants were hers. Officers questioned defendant, who confessed to threatening N.A., forcing her into the car, and compelling her to drive to Pleasantville. He also admitted forcing N.A. to undress, but claimed it was only to ensure she was unarmed.

The grand jury charged defendant with twelve counts, including two counts of first-degree carjacking, N.J.S.A. 2C:15-2(a)(4); one count of first-degree carjacking by threat, N.J.S.A. 2C:15-2(a)(2); first-degree robbery, N.J.S.A. 2C:15-1; second-degree kidnapping, N.J.S.A. 2C:13-1(b); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).

Defendant had been convicted of robbery on two previous separate occasions. Accordingly, if convicted of any of the carjacking or robbery counts, he would receive a mandatory sentence of life imprisonment without parole under the "Three Strikes Law," N.J.S.A. 2C:43-7.1(a). He nonetheless rejected a plea offer of twenty-five years in prison, with an 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant moved to suppress the physical evidence, his statements, and N.A.'s identification. Immediately after the trial court denied his suppression motions, the following exchange occurred:

THE COURT: I don't recall what the last offer in this case was.

[THE PROSECUTOR]: It was 25 at 85, Your Honor.

THE COURT: Twenty-five at 85? That's still on the table?

[THE PROSECUTOR]: Yes, Your Honor.

THE COURT: Is there any reconsideration of the rejection of that today, [trial counsel]?

[TRIAL COUNSEL]: Well, I'm I'm going to need to talk to my client again and then . . . did you just say something to me?

(Discussion among Defense Counsel and the Defendant, off the record)

[TRIAL COUNSEL]: He well, he's indicating that he still wants to go to trial, Judge.

The court acknowledged defendant's rejection of the plea offer, and set a trial date.

On the first day of trial, defendant asked to speak to the court to explain why he wanted to go to trial with a new attorney, despite facing a life sentence: "this is my life on the line. I understand I put my life on the line, you know, and I understand the type of time that I'm facing . . . if I'm convicted . . . in the jury trial is life without parole. I understand that." After a recess, and after another discussion between defendant and trial counsel, counsel stated:

Judge, earlier Mr. Biddle and I had conversations with regard to . . . a potential plea offer and he was before the Court. First of all, [] I do want to put on the record, I asked Mr. Biddle to consider the plea that was offered by the State. . . . [H]e knows all along that I've said that the case I felt [in] my legal opinion is very strong against him. . . . [W]e had motions and we know that [] certain evidence is going to come into the trial and for that reason I asked him to seriously consider the plea offer. I thought it was in his best interest since he is ultimately facing life in prison without the possibility of Parole.

He's chosen to . . . go to trial and that's [] his call, it's his life.

Accordingly, defendant went to trial. The jury found defendant guilty of all the counts detailed above. On August 29, 2008, the trial court sentenced defendant to three concurrent extended terms of life imprisonment without eligibility for parole for the three carjackings, with shorter concurrent terms for the remaining offenses. We affirmed defendant's convictions and life sentences, and remanded to correct the sentences for the remaining offenses. State v. Biddle, No. A-1656-08 (App. Div. Jan. 10, 2011), certif. denied, 206 N.J. 330 (2011).

On March 22, 2012, defendant filed a pro se PCR petition raising twenty-two "points," each alleging one or more claims of ineffectiveness of trial counsel. Appointed PCR counsel filed a brief adding another ineffectiveness claim. PCR counsel argued that, after the court denied defendant's motions to suppress and the State offered twenty-five years in prison with an 85% parole disqualifier, "[i]t does not appear at any time did counsel pursue an agreement that would contain the usual waiver of the right to appeal but reserved the right to appeal the denial of the defense motions." However, PCR counsel concededly was "not certain as to whether the State would have agreed to such an arrangement." The State's brief quoted the transcript sections above, and the prosecutor argued that the State had made a reasonable plea offer, that trial counsel had discussed it with defendant, but defendant had rejected the plea offer and insisted upon going to trial.

At oral argument, the PCR judge made clear he had read both defendant's pro se petition and PCR counsel's brief on the plea issue. The court agreed that defendant was offered "a pretty good plea agreement. But he was adamant he wanted to go to trial." The court noted that, despite defendant's confession and N.A.'s identification, "he wanted his day in court. And he got it." The court found:

His attorney did the best she could do with what was given to her. And the fact . . . is [it] was the defendant's decision to go to trial, knowing the tremendous facts against him and in light of the fact that his attorney indicates in the papers given to me that she advised him don't go to trial. It's a tough case to win. I'm paraphrasing. Don't go to trial. But, Mr. Biddle, he wanted to go to trial.

As the PCR court announced other portions of its opinion, defendant repeatedly demanded to leave the courtroom. When the court instructed him to sit down and listen, defendant responded, "I'm tired of listening to you with this crap." As defendant was being escorted from the courtroom, he ended his tirade with "I don't care about contempt of court or none of that shit." Later, the court observed that defendant's ineffectiveness claims were meritless, and that his "judgment clearly has to be called into question" both because of his behavior and because "he was offered a pretty good deal" but rejected it.

The PCR court concluded that, considering "all of the points made by the defendant, there is not one that even comes close to having this Court feel that his attorney" was deficient or that defendant was prejudiced, and denied the PCR petition without an evidentiary hearing.

II.

Defendant appeals, raising the following arguments:

POINT I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF TRIAL COUNSEL'S FAILURE TO EFFECTIVELY CONVINCE HIM AS PART OF A COMPREHENSIVE PRETRIAL INVESTIGATION THAT HE SHOULD ACCEPT THE STATE'S PLEA RECOMMENDATION IN LIGHT OF THE OVERWHELMING STRENGTH OF THE STATE'S CASE AGAINST HIM, HE REJECTED THE PLEA'S RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL, SUBSEQUENTLY BEING CONVICTED AND RECEIVING A LIFE WITHOUT PAROLE TERM AT SENTENCING.

POINT II. IN THE EVENT THE DEFENDANT IS NOT ENTITLED TO AN EVIDENTIARY HEARING ON THE PRESENTLY EXISTING RECORD, A REMAND IS WARRANTED REQUIRING THE TRIAL COURT TO EXPRESSLY RULE ON DEFENDANT'S CONTENTION.

To show ineffective assistance, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The 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.'" Id. at 279-80. This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008).

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.

If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

III.

Defendant argues that the PCR court addressed the twenty-two claims of ineffectiveness in his pro se petition, but did not address PCR counsel's claim that trial counsel was ineffective for failing to obtain a negotiated guilty plea. However, as set forth above, the PCR court addressed that claim, finding trial counsel was not ineffective because she had negotiated "a pretty good plea agreement" and had advised defendant to take it, "[b]ut he was adamant he wanted to go to trial" despite the damning evidence.

As the PCR court recognized, the decision whether to plead guilty or go to trial belongs to defendant, not his counsel. A defendant "has 'the ultimate authority' to determine 'whether to plead guilty[.]'" Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560, 160 L. Ed. 2d 565, 578 (2004). "While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is 'itself a conviction[.]'" Ibid. "Accordingly, counsel lacks authority to consent to a guilty plea on a client's behalf[,]" ibid., and a plea "bargain cannot be imposed upon a defendant," State v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994). Thus defendant cannot blame trial counsel for defendant's own choice to go to trial.

Defendant relies on the United States Supreme Court's recent decision in Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). However, Lafler bears no resemblance to defendant's case. There, the respondent alleged he rejected favorable plea offers because "his attorney convinced him that the prosecution would be unable to establish his intent to murder [the victim]." Id. at ____, 132 S. Ct. at 1383, 182 L. Ed. 2d at 405. "[A]ll parties agree[d] the performance of respondent's counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial." Id. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406. Further, it was "conceded" that the respondent's decision to reject the offer and go to trial "was the result of ineffective assistance during the plea negotiation process." Id. at ___, 132 S. Ct. at 1386, 182 L. Ed. 2d at 408.

Here, by contrast, trial counsel advised defendant to accept the lenient plea offer on the valid grounds that the motions to suppress had been denied; the physical evidence, the victim's identification, and defendant's confession would be admitted as evidence; the State's case was "very strong" against him; and he was facing life in prison without the possibility of parole if convicted at trial. Defendant has not identified any advice of counsel that was deficient. That in itself is sufficient to defeat defendant's claim. Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 17, 187 L. Ed. 2d 348, 358 (2013).

Further, defendant has not "shown a reasonable probability that but for counsel's errors he would have accepted the plea." Lafler, supra, ___ U.S. at___, 132 S. Ct. at 1389, 182 L. Ed. 2d at 412. Lafler held that where deficient advice leads to the rejection of a plea offer,

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

[Id. at___, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407.]

Here, defendant proffered no evidence that he would have accepted the plea offer rather than trying for a more favorable outcome at trial. PCR counsel's motion was not supported by a certification from defendant making any such assertion. "In evaluating whether a prima facie claim has been asserted, '[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification . . . before the Court may grant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(c)).

Indeed, PCR counsel's brief contains no such assertion. That is not surprising. The State's plea offer of a twenty-five-year sentence with an 85% parole disqualifier would have resulted in a guaranteed sentence of more than twenty-one years, enough to ensure that the forty-three-year-old defendant was in prison until he was almost sixty-five years old. Nowhere has defendant offered any basis to believe that additional advice would have changed his "adamant" insistence on going to trial to preserve the possibility of being acquitted rather than face the reality of being imprisoned for so long and so late in life.

Moreover, PCR counsel's brief argued only that trial counsel was ineffective by not obtaining from the State a plea offer that "reserved the right to appeal the denial of the defense motions." However, trial counsel had already obtained such an offer regarding defendant's Fourth-Amendment-based motion to suppress evidence, because the denial of such a motion "may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty." R. 3:5-7(d); see State v. Knight, 183 N.J. 449, 471 (2005).

Regarding the motions to suppress defendant's confession and N.A.'s identification, nothing before us suggests that defendant's unwillingness to plead guilty was based on a desire to preserve those issues for appeal. As defendant notes, the trial court soundly rejected those motions, he did not appeal the denial of suppression of the confession, and we termed his arguments for suppression of the identification "clearly without merit." Biddle, supra, slip op. at 7.

In any event, preservation of those issues would require a conditional guilty plea, and thus "the consent of the prosecuting attorney." R. 3:9-3(f). As PCR counsel's brief acknowledges, "it is not certain as to whether the State would have agreed to such an arrangement." Because the State made no offer of a conditional plea, the issue raised in Lafler "simply does not arise." Lafler, supra, ____ U.S. at ____, 132 S. Ct. at 1387, 182 L. Ed. 2d at 410; see Porter, supra, 216 N.J. at 357 (rejecting summarily a claim that trial counsel did not convey a plea offer to defendant where "there is simply no assertion that a plea offer was in fact made").

"[D]efendants have 'no right to be offered a plea.'" Lafler, supra, ____ U.S. at ____, 132 S. Ct. at 1387, 182 L. Ed. 2d at 410 (quoting Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d 379, 392 (2012)). "[A] defendant has no legal entitlement to compel a plea offer or a plea bargain; the decision whether to engage in such bargaining rests with the prosecutor." Williams, supra, 277 N.J. Super. at 46; see Weatherford v. Bursey, 429 U.S. 545, 561, 97 S. Ct. 837, 846, 51 L. Ed. 2d 30, 43 (1977). Even if such a right existed, defendant has not shown a reasonable probability that the State would have offered a conditional plea, let alone that defendant would have accepted it.

Affirmed.