STATE OF NEW JERSEY v. HERMAN W. FISHER

NOT FOR PUBLICATION WITHOUT THE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.

HERMAN W. FISHER,

Defendant-Appellant.

_______________________________________

May 30, 2014

 

 

Before Judges Ashrafi and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 09-09-935.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

 

Robert D. Bernardi, Burlington County Prosecutor,attorney forrespondent (Jennifer B.Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM
 

Defendant Herman W. Fisher appeals from the December 19, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He contends that his trial counsel was ineffective for not challenging, at his sentencing, the failure to dismiss the charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and other traffic offenses. Having considered defendant's arguments in light of the record and controlling law, we reverse and remand to the Law Division for an evidentiary hearing.

The record reveals that on August 6, 2009, defendant was issued five motor vehicle summonses, including DWI and reckless driving, N.J.S.A. 39:4-96. He was also charged with third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a, and disorderly conduct, N.J.S.A.2C:33-2a(1).

On September 17, 2009, defendant waived his right to an indictment and, pursuant to a negotiated plea agreement, pled guilty to a one-count Accusation, 09-09-935, charging him with third-degree theft by unlawful taking. Pursuant to the plea agreement, the State agreed to recommend a sentence of four years incarceration, that defendant pay restitution, if any, to the victim and that defendant waive his right to appeal. In the written plea form, the prosecutor agreed to "dismiss remainder under 09-2316." At the plea hearing, the prosecutor also stated "[t]he remaining charges under this file under 09-2407 will be dismissed as part of the plea."1

Thereafter, the judge sentenced defendant to a custodial term in accordance with the plea agreement and, at the request of the State, dismissed the disorderly persons charge of disorderly conduct. The prosecutor then requested that the motor vehicle summonses that were issued to defendant, including the DWI, be remanded to the municipal court. There was no acknowledgment by either party or the court as to the disposition, either by trial or dismissal, of those summonses in municipal court. The only reference was by the judge that, "[t]hey'll probably handle them by video from prison I think."

Defendant filed a pro se PCR petition. PCR counsel submitted a brief and appendix in support of the petition. A non-evidentiary hearing was held on December 5, 2011. In his written opinion denying defendant's petition, the PCR judge addressed defendant's arguments that under the terms of the plea agreement defendant believed all remaining charges were to be dismissed, including the DWI, and his motor vehicle violations, and that his attorney was ineffective by not objecting to the terms of defendant's sentence.

Defendant contends that his counsel was also ineffective because his sentence did not reflect the negotiated plea agreement. The PCR judge determined that the written plea agreement did not mention dismissal of defendant's motor vehicle violations and that counsel had no reason to object during sentencing. The court determined that an evidentiary hearing was not required as "the defendant must do more than make 'bald assertions' of ineffective assistance of counsel." The PCR court concluded that defendant had not made a prima facie showing of prejudice, and the court denied defendant's PCR without an evidentiary hearing. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT ONE

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

 

1. Defendant's petition is not barred.

 

2. Defendant established at least prima facie evidence of ineffective assistance of counsel.

 

3. Defendant established breach of the plea deal by the prosecution.

 

4. At the very least, defendant's claims warranted an evidentiary hearing in the court below.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see also Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Harris, supra, 181 N.J. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).

Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court[.]" Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here, as there was no evidentiary hearing and no credibility determinations were made. "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (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). That is, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406-07 (2012).

The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. See id. at ___, 132 S. Ct. at 1384-85, 182 L. Ed. 2d at 406-07; Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). Where, as here, a defendant claims that he was denied the effective assistance of counsel regarding a plea, the defendant must show that "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); State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

We address defendant's claim that his counsel was ineffective for failing to ensure that the DWI and traffic offenses were dismissed pursuant to the negotiated plea agreement. Defendant argues that his understanding was that the plea agreement required that all charges would be dismissed, including his DWI and traffic offenses. The plea form and plea colloquy do not disprove this assertion.

In this appeal, defendant contends that his plea was not truly voluntary because he was misinformed by counsel as to the consequences of his plea. Rule 3:22-10(b) provides, in pertinent part, that

[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

 

"It is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). In deciding whether a defendant "is entitled to an evidentiary hearing in connection with his petition for [PCR,] the facts should be 'view[ed] in the light most favorable to a defendant.'" State v. Parker, 212 N.J. 269, 282 (2012) (second alteration in original) (quoting Preciose, supra, 129 N.J. at 463). Indeed, "[t]he development and resolution of ineffective assistance of counsel claims frequently call for an evidentiary hearing 'because the facts often lie outside the trial record and because the attorney's testimony may be required.'" Porter, supra, 216 N.J. at 354 (quoting Preciose, supra, 129 N.J. at 462).

Given the substance of the plea form and plea colloquy with regard to the dismissal of charges, we conclude that an evidentiary hearing is warranted to resolve defendant's contentions that his trial counsel rendered ineffective assistance.

Reversed and remanded for an evidentiary hearing consistent with this opinion. We do not retain jurisdiction.

1 We note that the plea form, prosecutor's file and Accusation each have different reference numbers.