STATE OF NEW JERSEY v. ASHLEY L. MCLAUGHLIN

NOT FOR PUBLICATION WITHOUT THE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.

ASHLEY L. MCLAUGHLIN,

Defendant-Appellant.

_________________________________________

September 16, 2016

Submitted June 22, 2016 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-12-3011.

Joseph E. Krakora, Public Defender, attorney forappellant (AndersonD. Harkov, Designated Counsel, on the brief).

JamesP. McClain,Atlantic County Prosecutor, attorney forrespondent (JohnJ. Santoliquido, AssistantProsecutor, of counsel and on the brief).

PER CURIAM

Defendant Ashley L. McLaughlin appeals from the order of the Law Division, Criminal Part denying her post-conviction relief (PCR) petition without conducting an evidentiary hearing. We affirm.

On December 10, 2009, an Atlantic County Grand Jury indicted defendant and codefendant Cynthia Myers, a/k/a Avangelique Sanchez, and charged them with: (1) second degree conspiracy to commit robbery, pursuant to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (2) second degree conspiracy to commit an aggravated assault, under N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b; (3) two counts of aggravated assault, one in the second and one in the third degree in violation of N.J.S.A. 2C:12-1b(1) and (2); (4) first degree kidnapping, under N.J.S.A. 2C:13-1b; (5) first degree robbery, pursuant to N.J.S.A. 2C:15-1; (6) two counts of first degree felony murder, in violation of N.J.S.A. 2C:11-3a(3);1 (7) first degree conspiracy to commit murder, under N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1)(2); (8) first degree murder, pursuant to N.J.S.A. 2C:11-3a(1)(2); and (9) third degree possession of a weapon (here: a hammer) for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d.

On January 27, 2010, defendant entered into a negotiated agreement with the State through which she pled guilty to first degree felony murder and second degree conspiracy to commit a robbery. In return, the State agreed to recommend the court sentence defendant to the following: (1) a term of thirty-five years for the felony murder charge, with (a) an eighty-five percent period of parole ineligibility and (b) five years of parole supervision, as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and (2) a concurrent term of seven years for the conspiracy to commit a robbery charge, which is also subject to NERA.

The record of the plea hearing shows defendant acknowledged she pled guilty of her own free will, after having an opportunity to review the evidence against her with her attorney. In response to questions from both her attorney and the judge, defendant provided a separate factual basis for each of the crimes she committed. Defendant stated that she and Myers "discussed and planned" how they would rob the victim. The plan included scaring the victim with a hammer to "[g]et some money out of him." When defendant's attorney asked her, "Who had the hammer[,]" she responded, "I did."

To carry out the robbery, defendant and Myers drove the victim to a secluded location. Once there, defendant and Myers each demanded money from the victim and threatened him with the hammer, as they had planned.

The trial judge also asked defendant the following questions to establish a factual basis for the charge of felony murder

THE COURT: What did you do?

DEFENDANT: I got in the front seat and tried to persuade him to give us some money.

THE COURT: Persuade? You weren't asking him nicely I take it. You were threatening him?

DEFENDANT: Yes.

THE COURT: Okay. And you were armed with a hammer at the time?

. . . .

DEFENDANT: No. Angie [Myers] had it.

THE COURT: Okay. And [the victim] was driving?

DEFENDANT: No. We were parked.

THE COURT: You were parked at this point. Then what happened?

DEFENSE COUNSEL: Did someone hit [the victim] with the hammer?

DEFENDANT: Angie got mad 'cause [sic] he didn't have any money and hit him in the head with the hammer.

THE COURT: Okay. What were you doing when this happened?

DEFENDANT: In the front seat.

THE COURT: All right. So, it's alleged that you caused the death of [the victim] when you and Cynthia or Angie, as you call her, acting together were engaged in the commission of this robbery. Is that right?

DEFENDANT: Yes.

THE COURT: Did [the victim] die as a result of the wounds that Angie visited upon him?

DEFENDANT: Yes.

THE COURT: Where did she strike him?

DEFENDANT: In the head.

THE COURT: How many times?

DEFENDANT: A few times.

DEFENSE COUNSEL: Would you say more or less than five or about five?

DEFENDANT: Little more or less than five times.

DEFENSE COUNSEL: And, did you ever hit [the victim] with a hammer?

DEFENDANT: Yes.

DEFENSE COUNSEL: How many times?

DEFENDANT: I hit him once in the face.

DEFENSE COUNSEL: One time.

THE COURT: One time in the face?

DEFENDANT: Yes.

Defendant has never denied her role in the conspiracy to rob the victim or her part in the victim's death. In fact, defendant refuted the prosecutor's statement to the court at the sentencing hearing that defendant may have been misled by the codefendant, who was older and had a history of criminal activity.

THE COURT: Would you like to say anything in mitigation of punishment?

DEFENDANT: Yes.

THE COURT: Go right ahead. Speak up please.

DEFENDANT: First I want to apologize to the family [of the victim]. I can't take back what I did, but I'm sorry. And as on my part with Cynthia Myers, I don't want ya all to feel I was gullible, you know what I'm saying? She did not do anything more wrong that I did. I'm an adult. I made a decision and not because I felt the need to be hateful. I didn't - - I'm just sorry. I'm sorry.

On April 29, 2010, the trial court sentenced defendant in accordance with the plea agreement.

On defendant's direct appeal, we affirmed the sentence imposed by the trial court through the summary process codified in Rule 2:9-11. State v. Ashley L. McLaughlin, Docket No. A-1241-10 (App. Div. June 28, 2011), cert. denied, 205 N.J. 185

(2011). On October 23, 2013, Defendant filed this pro se PCR petition, claiming ineffective assistance of counsel. In the section of the petition requiring her to state "with specificity the facts upon which the claim for relief is based," defendant wrote, "I want my felony murder, changed to manslaughter." She explained, "I believe because I didn't murder the victim and it wasn't in my plans to kill him, I shouldn't get charged with felony murder." Defendant also added, "My codefendant was charged with it, so why are both of us being charged with it."

The judge who heard defendant's PCR presided over both defendant's plea and sentencing hearing. He assigned counsel to represent defendant to prosecute her PCR petition. PCR counsel filed a brief in support of the petition. In a short factual statement, PCR counsel did not contest defendant's account of her participation in the killing; counsel did not dispute that defendant struck the victim with a hammer once in the face. Indeed, PCR counsel states that

Ms. Myers also wrapped a scarf around the victim's neck and choked him. After the assaults, Ms. Myers and the defendant drove to the Mays Landing, NJ area with the victim in the car. The victim was still alive at this point. His body was then disposed of in a wooded area by the defendant. In the woods, his hands were tied behind his back with a shoelace to prevent him from fighting. [The victim] died as a result of being hit in the head. The defendant acknowledged that she and Ms. Myers caused the death when they engaged in the commission of the robbery. The defendant was not under the influence of any substance at the time of the aforementioned events. She further indicated that she had no justification or defense for what she did and believed she was not innocent in any way for the felony murder of [the victim].

Despite these admissions, PCR counsel argued to the PCR judge that defendant was denied the effective assistance of counsel because: (1) "an inadequate factual basis existed for the plea of guilty for felony murder;" (2) defendant's guilty plea "was not entered into voluntarily;" and (3) PCR counsel argued trial counsel was ineffective in failing to file a motion to suppress defendant's statement to law enforcement. This was the first time defendant raised the third argument.

The PCR judge heard oral argument on August 8, 2014. In a memorandum of opinion dated September 12, 2014, the PCR judge addressed and rejected all of defendant's claims in support of her petition. After applying the standards for determining a claim of ineffective assistance of counsel, the judge found defendant's argument attacking the viability of her plea lacked merit. Further, the judge found Rule 3:22-3 and Rule 3:22-4 procedurally barred defendant's argument that trial counsel failed to file a motion to suppress the statement defendant gave to law enforcement as an issue that could have been raised on direct appeal. The PCR judge thus concluded defendant had not established a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing.

Defendant now appeals, raising the following arguments

POINT ONE

THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT THREE

AS A RESULT OF TRIAL COUNSEL'S FAILURE TO EXPLAIN TO DEFENDANT THE FULL RANGE OF SENTENCING ALTERNATIVES IF SHE WENT TO TRIAL AND WAS FOUND GUILTY, DEFENDANT ENTERED AN INVOLUNTARY GUILTY PLEA, WITHOUT A FULL UNDERSTANDING OF ITS CONSEQUENCES, THUS DEFENDANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must first demonstrate that defense "counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, she or he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "In determining a claim of ineffective assistance of counsel in a case in which a defendant pled guilty, 'the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here.'" State v. Smullen, 437 N.J. Super. 102, 108-09 (App. Div. 2014) (quoting State v. Nu ez-Vald z, 200 N.J. 129, 139-40 (2009)).

A court presented with a PCR petition is not obligated to conduct an evidentiary hearing. State v. Jones, 219 N.J. 298, 311 (2014). Rule 3:22-10 confers upon the court the discretion to conduct such a hearing only "if a defendant has presented a prima facie case in support of PCR." Ibid. Once a prima facie case has been established, the claims of ineffective assistance of counsel ordinarily require consideration of "evidence that lie[s] outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant has not presented a prima facie case of ineffective assistance under Strickland. Defendant claims ineffective assistance of counsel as a pretext to seek a reduction of her sentence. Throughout every phase of this case, defendant has reaffirmed her culpability. She has steadfastly described her role in these crimes without attempting to minimize her involvement. The record unequivocally shows defendant and Myers planned to rob the victim by threatening him with a hammer, if necessary. Such conduct clearly meets the elements of first degree conspiracy to commit an armed robbery. Defendant also admitted she and her codefendant brought about the victim's death in the course of robbing him. Specifically, they hit the victim with a hammer on the face once, and on the head approximately five times. They then tied his arms back with shoelaces and abandoned him in a secluded area to die. This is a textbook case of felony murder. Indeed, these facts also support a conviction for intentional or knowing murder.

Defendant's trial counsel negotiated a plea agreement that significantly reduced defendant's penal exposure. Defendant knowingly and voluntarily accepted the plea offer her attorney ably secured for her. There is no basis to conclude defense counsel's performance was ineffective.

Affirmed.

1 Although there was only one victim, the State's theory of culpability on the offense of first degree felony murder was based on the two separate predicate crimes of first degree robbery and first degree kidnapping.