STATE OF NEW JERSEY v. AKEL A. ACKIE

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0672-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AKEL A. ACKIE,

     Defendant-Appellant.
_______________________________

              Submitted November 15, 2017 – Decided December 7, 2017

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              10-08-0821.

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

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Robert J. Wisse,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Akel Ackie appeals from the denial of his post-

conviction       relief    (PCR)    petition.        Defendant     contends        the
ineffective assistance of trial counsel caused him to plead guilty.

Because we find that defendant has failed to present a prima facie

showing of ineffective counsel, we affirm.

       Defendant was charged with the murder and sexual assault of

his girlfriend's two-year-old daughter after the child died while

in his care.            Defendant ultimately pled guilty to aggravated

manslaughter and endangering the welfare of a child and was

sentenced to an aggregate thirty-seven year prison sentence.1

       Prior to the plea allocution, there was a lengthy discussion

about a particular legal issue.                 Defense counsel advised that he

had    first      met   defendant      a   month   earlier   in     court       and   had

subsequently visited him twice in jail.2                   Defendant agreed that

present counsel had "extensively" discussed the legal issue with

him    on   all    three   prior      occasions,    in   addition    to     a   lengthy

conference the morning of the plea hearing.                  Defendant stated he

understood he could have a trial; he chose instead to accept the

plea   agreement.          He   was    satisfied    with   the    services       of   his

attorneys and advised he was pleading guilty to the specified

charges freely and voluntarily.


1
  Defendant only appealed the sentence. We affirmed. State v.
Ackie, No. A-1790-13 (App. Div.), certif. denied, 
219 N.J. 631
(2014).
2
  A different public defender represented defendant prior to that
time.

                                            2                                    A-0672-16T4
At the conclusion of the plea hearing, the trial judge said:

         I'm satisfied of several things.     First,
    I think this plea was about as thorough   a plea
    proceeding that I've ever been involved   in and
    all of the requisite bases were covered   by all
    counsel and the Court.

         And as a result of his very thorough plea
    proceeding, I’m satisfied that Mr. Ackie fully
    understands all of his rights; he's waived all
    of his rights, including his right to have a
    trial by jury.

         I further find that he fully understands
    the plea agreement, all of its consequences
    and all of the sentencing ramifications.

         I'm further satisfied that he read the
    Plea Form, he found all the information
    contained therein to be true and accurate and
    as a result he signed and initialed the pages.

         I find that he's thinking clearly right
    now, he's not under the influence of any
    substance that would cloud his judgment.

         I'm satisfied that all of his questions
    have been answered; that he's been represented
    by competent counsel; that he's satisfied with
    the services of his counsel; and that he has
    no questions for his lawyer or the Court.

         I'm further satisfied that he's aware of
    all of the peripheral sentencing ramifications
    such as Megan's Law, et cetera.

         And, most importantly, I'm satisfied that
    he has entered his guilty pleas to counts one
    and five voluntarily, knowingly and because
    he really is guilty of the two charges he pled
    guilty to.

         And he did provide a more than adequate
    factual basis to support his pleas. He didn't

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          just sit and answer all of the questions yes.
          He supplied much of the factual details as
          part of his plea.     So I believe that the
          factual basis that was provided is truthful
          and accurate. So for all those reasons, I'm
          going to accept this plea.

               . . . .

          [Counsel], because you inherited this case
          late; you came in; in a very short period of
          time you became fully familiar with the case.
          You had more than adequate meetings with Mr.
          Ackie.    And I think that you deserve the
          compliments of the Court for the fine work
          that you did.

     In defendant's PCR petition before the trial court, he argued

that: (1) he was entitled to withdraw his guilty plea; (2) he was

denied effective assistance of counsel; (3) the trial court erred

in denying his request for an adjournment prior to his guilty

plea; (4) his sentence was unconstitutional; (5) he received

ineffective assistance of appellate counsel; (6) he was entitled

to an evidentiary hearing; and (7) his petition should not be

procedurally barred.

     Defense counsel testified at the PCR hearing.   He stated that

defendant's first public defender was retiring and he agreed to

take defendant's case.   He met defendant at a prior plea hearing,

however the plea did not go through at that time.     Counsel said

he then met with defendant several times and defendant advised him

that he still wanted to take the plea offer.      Counsel did not


                                 4                          A-0672-16T4
recall defendant asking him to obtain an adjournment in the case

or a discussion about whether there was sufficient time to prepare

for trial.     Counsel did remember the judge assuring him that if

there were to be a trial, he would have the time needed for

adequate preparation.       Defendant did not seek to retract his plea

at any time between the plea hearing and sentencing.

     In a lengthy oral decision, the judge informed that he

remembered the case "very well."               He noted that the evidence

against    defendant    was    "monumental,"     and   the   State    had   "an

extraordinarily strong case." The judge advised that had defendant

been convicted of the murder charge or any of the other serious

charges, "he probably would have spent the rest of his natural

life in prison."       But because the prosecutor wanted to spare the

victim's family the pain of a trial and attempt to give them

closure,   defendant     was   offered    an    "extraordinarily     favorable

. . . plea agreement."

     The judge found defense trial counsel "to be very credible"

and noted the improbability that the court would not have granted

an adjournment of a murder trial under the circumstances of

substituting     counsel.      The   judge      concluded    there    was     no

demonstration of ineffective assistance of counsel.

     In considering defendant's request to withdraw his guilty

plea, the judge applied the applicable factors under State v.

                                      5                                A-0672-16T4
Slater, 
198 N.J. 145 (2009), and found the application meritless,

noting that defendant had never asserted a claim of innocence and

the favorable plea agreement.

     Defendant raises the following points on appeal:

           POINT I: PETITIONER WAS DEPRIVED OF HIS
           CONSTITUTIONAL   RIGHT   TO   THE   EFFECTIVE
           ASSISTANCE OF COUNSEL GUARANTEED UNDER THE
           UNITED STATES AND NEW JERSEY CONSTITUTIONS IN
           THE ENTRY OF HIS RETRAXIT PLEA OF GUILTY.

           POINT II: THE DENIAL OF THE EFFECTIVE
           ASSISTANCE OF COUNSEL AT HIS RETRAXIT PLEA
           MANDATES THAT PETITIONER'S REQUEST TO WITHDRAW
           HIS GUILTY PLEA BE GRANTED.

     We are not persuaded by these arguments.     The standard for

determining whether counsel's performance was ineffective for

purposes of the Sixth Amendment was formulated in Strickland v.

Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984),

and adopted by our Supreme Court in State v. Fritz, 
105 N.J. 42

(1987).   In order to prevail on a claim of ineffective assistance

of counsel, defendant must meet the two-prong test establishing

both that: (l) counsel's performance was deficient and he or she

made errors that were so egregious that counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional


                                 6                          A-0672-16T4
errors, the result of the proceeding would have been different."

Strickland, supra, 
466 U.S.  at 687, 694, l
04 S. Ct.  at 2064, 2068,


80 L. Ed. 2d    at 693, 698.

      We are satisfied from our review of the record that defendant

failed to demonstrate the ineffectiveness of trial counsel under

the   Strickland-Fritz   test.      Defendant's      bald   assertion    that

counsel was ineffective for failing to seek an adjournment of the

trial date, thus compelling a guilty plea, is without support in

the record. To the contrary, defendant received an extremely

favorable   plea   agreement   in   a   case   the   trial   judge    termed

"virtually defenseless."       Defendant has not shown that it would

have been rational to reject the plea bargain.

      Defendant also argues that the trial judge erred in denying

his request to withdraw his guilty plea because his plea was not

given voluntarily.    We find this argument lacks sufficient merit

to warrant discussion in a written opinion, R. 2:11-3(e)(2), and

affirm substantially for the reasons expressed in the trial judge's

well-reasoned oral opinion.

      Affirmed.




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