STATE OF NEW JERSEY v. ERICK WHORLINE

NOT FOR PUBLICATION WITHOUT THE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.

ERICK WHORLINE,

Defendant-Appellant.

______________________________

May 1, 2014

Submitted September 24, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0301.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Erick Whorline appeals from the trial court's January 27, 2012, order, denying his petition for post-conviction relief (PCR) after a non-testimonial hearing. Pursuant to a plea agreement on October 3, 2005, defendant pleaded guilty to one count of aggravated manslaughter, N.J.S.A.2C:11-4(a). The court sentenced defendant on January 6, 2006, to a twenty-two-year term, subject to the No Early Release Act, N.J.S.A.2C:43-7.2, in accord with the plea agreement. The trial court previously denied defendant's motion to suppress a custodial statement. At his plea hearing, defendant admitted that he shot and killed James Johnson outside a bar in Bayonne on November 19, 2004.

Having reviewed defendant's arguments in light of the record and applicable law, we affirm the PCR court's denial of relief.

I.

We discern the following facts from the record. Defendant entered the Bayonne bar by himself. An hour after defendant arrived, Johnson entered the bar. What transpired thereafter is disputed, although the fact that defendant shot Johnson is not.

Defendant asserted that Johnson, a white man, soon began directing various racist, and provocative remarks toward him. Defendant was one of the few African-American patrons, if not the only one. Johnson repeatedly used the word "nigger." Defendant asserted that Johnson also referred to the vitality of the Ku Klux Klan or KKK. Defendant stated he had previously seen Johnson at his workplace, but had never socialized with him. Johnson's remarks irritated defendant. At one point, Johnson offered to buy defendant a drink, but defendant refused.

Johnson's cousin, Alice White, gave police a different version of events. She told police that when she entered the bar to meet Johnson, he was socializing with defendant and another African-American. She confirmed that Johnson was using racial epithets, but asserted it was good-natured, and defendant did not seem to take offense.

He said that him and Eric did time together and he was cool people and . . . he kept on calling these two black guys Nigger all night and . . . taking a dollar bill and ripping it [in] half and telling them this is for you for being unemployed, but he was buying them drinks and they seemed pretty cool. . . . [W]e're all hanging out laughing, joking.

According to a statement of the bartender, as conveyed to the grand jury, there was no indication of a problem between defendant and Johnson. They eventually sat together at the bar. According to another female patron of the bar, whose statement was summarized for the grand jury, Johnson bragged that he was doing well financially and showed her a "wad of money from his pocket."

Defendant left the bar first. He asserted he wanted to avoid any further contact with Johnson. However, Johnson ran after him, and confronted him on the sidewalk. According to defendant, Johnson bumped his chest against defendant's back, and threatened defendant. In his custodial interview, defendant stated, "You know that's when he made the remark, you know, big guy you ain't that big, . . . I'll still whip your ass, you know, plus we don't hang people no more KKK[,] we got tech 9[,] we shoot people." Defendant asserted that he backed away, while cursing back at Johnson. Defendant stated that Johnson threatened, "I'll shoot you, I'll kill you, you know, stuff like that."

Defendant stated he believed Johnson possessed a gun. "They [sic] past [sic] their mark to the point where I feel like he had a gun on me[.] I really did. . . . So I pulled my gun out[.] [H]e grabbed it. He grabbed the barrel of the gun . . . ." A struggle ensued. Defendant ultimately pointed the weapon at Johnson, and fired once, striking him in the head. Although defendant did not say he saw Johnson display a gun, he insisted, "I was defending myself[.] I felt threatened . . . ."

White stated that defendant, she and Johnson were going to leave the bar together, but Johnson stopped to talk to someone. He then caught up to defendant outside, while White was already in her car. White said she saw defendant and Johnson laughing and hugging. "[A]lmost instantly [defendant] pulled out a gun and just shot him in the head." White claimed that defendant then searched Johnson's pockets and fled.

A seventy-four-year-old neighbor saw White, defendant and Johnson outside the bar. The neighbor was unsure if Johnson and defendant were arguing, but defendant "turned around and he shot [Johnson]." The neighbor saw defendant search Johnson's body.

Police arrested defendant shortly after the shooting, at around 11:30 p.m. Defendant possessed a .357 caliber handgun, which contained hollow-point bullets and one spent casing. Defendant was wearing a bulletproof vest. He possessed over $400.

After signing a Miranda1 waiver form shortly after 12:30 a.m., defendant gave an unrecorded oral statement to two Bayonne police detectives. He was Mirandized a second time by a prosecutor's office detective, who interviewed defendant again and obtained a tape-recorded statement. Defendant conveyed his version of events, which we have already summarized. Defendant refused to identify the source of his weapon or vest. He asserted he wore the vest and carried the weapon to protect himself from a person with whom he recently had an altercation. But, he refused to identify him. He also denied robbing Johnson, stating that the cash in his pocket was his own earnings. The record before us includes a transcription of defendant's statement, but not the recording.

A Hudson County grand jury returned an eight-count indictment on February 8, 2005, charging defendant with: first- degree murder, N.J.S.A. 2C:11-3(a)(1), and 2C:11-3(a)(2) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count Two); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Three); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Four); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Five); possession of a prohibited device, N.J.S.A. 2C:39-3(f) (Count Six); unlawful use of a body vest, N.J.S.A. 2C:39-13 (Count Seven); and certain person not to possess weapons, N.J.S.A. 2C:39-7(b) (Count Eight).

At the suppression hearing, the State introduced the tape and transcription of defendant's interview. William Napier, one of the Bayonne detectives, and Robert Bava, the prosecutor's office detective, testified that defendant gave his statement knowingly and voluntarily. They both asserted defendant appeared calm and cooperative. The detectives denied defendant was physically or mentally coerced or threatened. They testified defendant had no visible signs of injury. He did not appear to be intoxicated, although he reported drinking three beers, and the bartender reportedly stated defendant also consumed shots of Remy Martin.

After the State rested, defense counsel asked for a moment, perhaps to confer with defendant. He then responded that the defense rested.

Judge Peter J. Vazquez denied the motion to bar defendant's custodial statements on July 22, 2005. The court found the detectives to be credible. The judge also relied on defendant's demeanor as reflected on the audio-tape, in concluding that the defendant knowingly, intelligently, and voluntarily waived his rights to remain silent and to confer with an attorney.

At his plea hearing in October, defendant stated that he was "[m]ost definitely" satisfied with his attorney's service and stated that he reviewed all of the information in the plea form with counsel. Defendant agreed that his plea was voluntary and that he was pleading guilty because he was guilty of the underlying offense. In response to leading questions of counsel, defendant admitted that he "[d]id . . . leave the bar with an individual known as James Johnson"; he and Johnson "were outside the bar"; defendant "did . . . take out a gun," and "point it at Mr. Johnson"; he fired the gun, striking Johnson, and "[b]y taking the gun out when [he was] with Mr. Johnson . . . it created a probable risk of death to Mr. Johnson." The court found that defendant provided a sufficient factual basis for the amended charge of aggravated manslaughter.

At the sentencing hearing on January 6, 2006, defense counsel addressed a statement attributed to defendant in the presentence report (PSR):

"On November 19 we were celebrating in the bar, guys from work buying each other drinks. The guy was threatening to shoot and kill me all night. Outside, the guy hit me from behind. We wrestled for the gun. The gun went off and the shot hit him in the head."

Defense counsel asserted he reviewed the report with defendant, and stated, "Mr. Whorline is not attempting to vacate his plea or take it back. He is standing by the statements he made during the plea hearing . . . ."

In his statement before sentencing, defendant apologized, expressed remorse, and affirmed his desire to plead guilty. "I never intended for it was really accidental and that's why I didn't want to put nobody through no trial and have the family go through that. So, I accept full responsibility."

Defense counsel urged the court to impose a twenty-year sentence. He argued that defendant was intoxicated; he expressed remorse; he did not intend to kill Johnson; and defendant cooperated with police and accepted responsibility.

The State argued that the court should impose a twenty-two-year term, as the plea agreement permitted. Although noting that defendant was not trying to vacate his plea, the assistant prosecutor responded to the PSR statement, and argued that no eyewitness saw Johnson assault defendant.

The court found that aggravating factors three, six and nine applied. N.J.S.A.2C:44-1(a)(3) (risk of committing another offense), (6) (prior criminal record), and (9) (need to deter). The court found no mitigating factors. The court noted that defendant had an extensive criminal record.2

Appointed counsel filed a notice of appeal roughly nine months after sentencing, apparently challenging only the excessiveness of the sentence. However, a notice of withdrawal was filed on May 25, 2007, and we dismissed the appeal. Defendant certified in support of PCR that he "desire[d] to appeal the denial of the suppression hearing and the conviction itself, as well as my sentence" but "appellate counsel wrongfully withdrew my appeal" advising him that if he did not do so, "I would receive a life sentence without parole."

Defendant has included in the record various documents apparently pertaining to his effort to pursue an appeal. Although none of these documents were properly authenticated by competent evidence, R.1:6-6, we shall summarize them. In a May 8, 2007, letter to appellate counsel at the Office of the Public Defender (OPD), defendant asked why his appeal was restricted to a sentencing challenge.3 In an undated and unsigned handwritten response which may have been an unsent draft appellate counsel apparently stated there were no other viable issues, and defendant's guilty plea waived the Mirandaissue. Defendant prepared a pro se appellate brief in which he argued his plea should be vacated because he provided an insufficient factual basis for aggravated manslaughter. He also argued he should be permitted to withdraw his plea in light of evidence, which his trial counsel uncovered, that Johnson had an extensive history of violent and provocative behavior.

Our record also includes a July 27, 2007, letter from defendant, addressed to appellate counsel, referring to his draft brief as one "in lieu of a PCR" and asking for comments. Defendant requested a copy of his appeal and supporting brief, and inquired about potential mitigating factors in sentencing. Defendant appeared to concede that the decision to withdraw the appeal was his. "I would first like to appeal my decision to withdraw my excessive sentence appeal." (Emphasis added). The typed letter includes a handwritten notation, apparently by appellate counsel, stating, "Per - Disregard in light of conversation of 7/28."

The record also includes an October 9, 2007, letter from defendant to appellate counsel, with a copy to the Public Defender. Defendant confirmed that his attorney had withdrawn the appeal and informed defendant that he no longer represented him. Nonetheless, defendant asserted, "I want to appeal my conviction and sentence. I didn't get the feel[ing] that you understood me in our last conversation." No appeal was filed.

Over three years later, defendant filed his pro se PCR petition on November 22, 2010, which was supplemented in September 2011 after appointment of PCR counsel. Judge Mary K. Costello denied the petition in a comprehensive written opinion. The judge applied the well-settled two-prong test for determining ineffective assistance of counsel. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

The court rejected as lacking evidential support defendant's argument that he was forced to plead guilty. The court found that defendant presented a sufficient factual basis for aggravated manslaughter, noting his concession that he created a probable risk of death, and citing State v. Jenkins, 178 N.J.347, 363-64 (2004) ("In aggravated manslaughter . . . the defendant must have caused death with an awareness and conscious disregard of the probability of death." (internal quotation marks, citation and emphasis omitted)).

Judge Costello found that trial counsel was not deficient in failing to challenge the indictment. She concluded the State presented sufficient proofs before the grand jury and appropriately relied on hearsay, citing State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988).

Judge Costello also rejected defendant's argument that trial counsel was ineffective by allegedly failing to advise defendant of his right to testify at the suppression hearing. Defendant had claimed that he was assaulted during his arrest and told that he should cooperate with officers. He also alleged he later filed a complaint against the police, although no copy was apparently provided to the PCR court. Judge Costello concluded that even if defendant testified, the result would have been the same, as Judge Vazquez considered his claims of intoxication and physical coercion.

Judge Costello also rejected the argument that trial counsel was ineffective by failing to pursue a claim of self-defense. The PCR court found that there was insufficient evidence of self-defense, noting that defendant's claimed perception that Johnson had a gun was unsupported by any of the eyewitnesses.

Finally, the court found no ineffectiveness at sentencing, specifically rejecting the argument that counsel should have argued mitigating factors three, four and five, N.J.S.A.2C:44-1(b)(3) ("defendant acted under a strong provocation"); (4) ("substantial grounds tending to excuse or justify the defendant's conduct"); and (5) (the victim "induced or facilitated" defendant's conduct).

This appeal followed. Asserting that the PCR court should have granted an evidentiary hearing, defendant raises six points for our consideration:

a. Trial counsel was ineffective for not filing a motion to dismiss the indictment.

b. Trial counsel was ineffective by not advising Defendant he had a right to testify at the suppression hearing.

c. Trial counsel was ineffective because he failed to file a Notice of Intent to rely upon Self Defense, failed to prepare the case for trial, and coerced Defendant to plead guilty.

d. Trial counsel was ineffective because he did not file a motion to withdraw the Defendant's plea to manslaughter.

e. Trial counsel was ineffective at the sentencing hearing because he failed to argue mitigating factors to persuade the court to sentence the Defendant to a sentence less than 22 years.

f. Appellate counsel was ineffective because he withdrew the Defendant's appeal of his conviction and sentence without Defendant's knowledge or consent.

II.

We affirm substantially for the reasons set forth in Judge Costello's cogent written opinion. We add the following.

In order to prevail on his petition, defendant must show "a reasonable probability that, but for counsel's errors, he [or she] 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). See alsoState v. Gaitan, 209 N.J.339, 351 (2012), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). We apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S.at 690, 104 S. Ct.at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J.at 54 (quoting State v. Williams, 39 N.J.471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963)).

A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J.451, 459 (1992). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). A defendant's representations "at plea hearings concerning the voluntariness of the decision to plead . . . constitute a formidable barrier" to a claim the plea was unknowing or involuntary. State v. Simon, 161 N.J. 416, 444 (1999) (internal quotation marks and citation omitted). A court need not hold a hearing if "the defendant's allegations are too vague, conclusory, or speculative to warrant" one. State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See alsoR.3:22-10(b) (stating that a hearing shall be held only if there are "material issues of disputed fact that cannot be resolved by reference to the existing record").

Defendant baldly claims his attorney failed to advise him of the right to testify at the hearing on his motion to suppress his custodial statement. First, defendant's claim is implausible given his prior contacts with the criminal justice system. Second, trial counsel requested a moment, possibly to confer with defendant, after the court inquired if he intended to present a case after the State rested.

In any event, defendant has failed to establish prejudice that is, that there is a reasonable probability that defendant would have gone to trial but for counsel's errors. As Judge Costello observed, Judge Vazquez rejected any claim of physical coercion. Particularly inasmuch as defendant has failed to provide us with the tape of his statement, which would reflect his demeanor during his statement, we defer to the trial court's findings. See, e.g., State v. Locurto, 157 N.J.463, 474 (1999) ("Appellate courts . . . defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses . . . .").

Moreover, defendant's claim that he was coerced to cooperate is belied by his denial that he robbed Johnson, his refusal to disclose where he obtained his weapon, and his refusal to identify the person with whom he had a previous altercation. Generally speaking, defendant's custodial statement was self-serving. He highlighted Johnson's provocative remarks and defendant's perception that he was in danger. In voluntarily speaking to police, defendant was apparently motivated by a desire to minimize his responsibility.

Defendant also fails to explain how a favorable result of the suppression hearing would have impacted his decision to plead guilty. The State had overwhelming evidence that defendant shot Johnson without defendant's confession.

We also discern no merit to defendant's argument that trial counsel was ineffective by failing to pursue a claim of self-defense, to prepare the case for trial, and to move to withdraw the plea. Defendant asserted his extreme satisfaction with the plea agreement. At sentencing, he did not dispute his attorney's representation that they had reviewed his statement in his PSR and defendant did not seek to withdraw his plea. Defendant then confirmed his desire to plead guilty and accept responsibility.

Defendant's claim that his attorney did not investigate is belied by defendant's own draft pro se appellate brief. Defendant reviewed defense counsel's investigation, and counsel's discovery of Johnson's prior history for violence and assaultive behavior.

The conviction for aggravated manslaughter, instead of first-degree murder, evidently reflected the impact of Johnson's provocative remarks, and defendant's claim that he felt threatened. Even in the unlikely event that defendant secured an acquittal on the homicide charges, he faced near certain conviction of weapons offenses, including a certain persons charge, and substantial sentencing exposure, given his prior record. Even if convicted of a lesser-included manslaughter charge absent a guilty plea, he could have received an aggregate sentence substantially greater than that permitted under the plea agreement. Defendant was extended-term eligible as a persistent offender. N.J.S.A.2C:44-3(a). Depending on the offense for which he was convicted, he may have been extended-term mandatory. N.J.S.A.2C:44-3, -3(d). In short, defendant failed to make a prima facie showing that going to trial would have been "rational under the circumstances." Padilla v. Kentucky, 559 U.S.___, ___, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Defendant argues that his appellate counsel was ineffective by withdrawing his appeal without his consent. He now apparently recognizes that he could not challenge the court's denial of his Mirandamotion on direct appeal. We agree. Since defendant did not expressly condition his plea on the right to appeal the pre-trial order under R.3:9-3(f), he waived that right upon pleading guilty. State v. Knight, 183 N.J.449, 471 (2005).

At this stage, defendant argues only that appellate counsel's alleged unauthorized withdrawal of his plea deprived him of a direct appeal of his sentence. We note that defendant's reference to "my decision to withdraw my excessive sentence appeal" undermines his claim that the withdrawal was unauthorized. His alleged desire to appeal is also belied by his three years of inaction, following his last letter to counsel in October 2007, and the filing of his PCR petition in 2010.

Nonetheless, for purposes of our review, we will assume without finding that defendant did want to pursue a direct appeal, he communicated that to appellate counsel, and the appeal was withdrawn without his consent. As the United States Supreme Court has "long held," "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d 985, 995 (2000). We therefore consider defendant's sentencing appeal nunc pro tunc. Ibid.(stating that "'[w]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit.'" (quoting Peguero v. United States, 526 U.S. 23, 28, 119 S. Ct. 961, 965, 143 L. Ed. 2d 18, 24 (1999) (alteration in original))).

However, we find no merit to defendant's appeal. In our review, we must (a) determine if the sentencing guidelines were violated; (b) review the aggravating and mitigating factors found to determine whether the court's consideration of those factors was based upon competent credible evidence in the record; and (c) if the court imposed a sentence in accord with the statutory mandates, whether the sentence was clearly unreasonable so as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). We do not substitute our judgment for the trial judge's. State v. O'Donnell, 117 N.J. 210, 215 (1989).

Reviewed under these standards, we are satisfied the trial court appropriately weighed the aggravating factors and imposed a sentence in accord with the statutory guidelines. In particular, the court did not err in declining to apply mitigating factors three, four and five. N.J.S.A. 2C:44-1(b)(3), (4) and (5). Both defense counsel and defendant chose not to try to persuade the court that circumstances excused defendant's conduct. Instead, they both argued that defendant accepted responsibility for his actions, and highlighted his cooperation and remorse.

Finally, defendant argues that his trial counsel was ineffective by failing to argue mitigating factors. We disagree. As we have just outlined, the emphasis on responsibility and remorse was apparently a tactical decision. In any event, defendant has not established a prima facie case of prejudice. Defendant had an extensive criminal record including armed bank robbery. He already had the benefit of a plea agreement to aggravated manslaughter instead of murder. The court was aware not only of Johnson's remarks, and defendant's claim he was threatened, but also the State's version of events, in the PSR, which minimized defendant's claim.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Although defendant's full PSR is not before us, the prosecutor asserted without dispute that defendant, then thirty-six years old, had four prior indictable convictions, including assault, robbery, and, most recently, a federal conviction for armed bank robbery.

3 According to PCR counsel's argument, this letter and other documents were included in the OPD's files, which were provided to him when he was assigned the case.