STATE OF NEW JERSEY v. IAN RICHARDSON

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IAN RICHARDSON, a/k/a

IAN L. RICHARDSON,

Defendant-Appellant.

_______________________________

January 25, 2017

Submitted November 9, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-06-0411.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ian Richardson appeals the denial of his petition for post-conviction relief (PCR) on grounds of ineffective assistance of counsel. For the reasons that follow, we affirm in part and remand in part for the PCR court to determine whether defendant requested the filing of a notice of appeal on his behalf.

In 2007, after having an altercation with victim Alfonso Rosado over a twenty-dollar payment for sex, defendant went home, retrieved a .45 caliber handgun, returned to the victim's location and, shooting in the victim's direction from about fifteen or twenty feet away, shot and killed Rosado. He waived indictment, pleading guilty in 2010 to an accusation that charged first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). Thereafter, defendant was sentenced to prison for eighteen years with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA). Defendant did not file a direct appeal.

In 2013, defendant filed a PCR petition in which he claimed his plea counsel provided him with ineffective assistance. He alleged his counsel failed to file a motion for a speedy trial during the three years the matter was pending; failed to advise against pleading guilty to aggravated manslaughter where the factual basis for the plea was not adequate to support the charge; failed to raise certain mitigating factors at the sentencing hearing; and then failed to file a direct appeal. Defendant contended that the cumulative effect of all these errors compromised his Sixth Amendment constitutional right to effective assistance of counsel.

Defendant's PCR petition was denied following oral argument without an evidentiary hearing. In a written opinion that addressed the ineffective assistance of counsel issues, the PCR judge concluded defendant failed to show "a reasonable likelihood of success on the merits" and "therefore fail[ed] to present a prima facie case in support of an evidentiary hearing in furtherance of his petition for post-conviction relief." The court determined that defendant was not prejudiced by any of the alleged deficiencies. The PCR court found that Rule 3:22-4 barred defendant's contentions that the factual basis was not adequate to support the plea and that mitigating factors were not presented at sentencing, because defendant could have raised these issues on direct appeal. The PCR court's decision noted that defendant asked his trial counsel to appeal, but that defendant's notice of appeal rights form indicated he wanted the Mercer County Public Defender's Office to represent him. The PCR court denied defendant's request for a hearing on this issue, finding defendant's contentions to be "vague and conclusory and not grounded in fact."

Defendant raises the following issues on appeal

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE ISSUES RAISED IN DEFENDANT'S PETITION PRESENTED THE COURT WITH PRIMA FACIE PROOF OF INEFFECTIVE ASSISTANCE OF COUNSEL BY A PREPONDERANCE OF THE EVIDENCE.

POINT II THE CUMULATIVE EFFECT OF THE TRIAL ERRORS AND INSTANCES OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT WERE PRESENTED IN DEFENDANT'S PETITION WARRANT POST-CONVICTION RELIEF.

POINT III THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

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, l 05 N.J. 42 (l987). In order to prevail on an ineffective assistance of counsel claim, defendant must meet a two-prong test by establishing 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 errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In the plea bargain context, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (internal quotation marks and citations omitted), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

In applying these standards, we find no error by the PCR judge in his application of the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and in rejecting defendant's claim his counsel should have filed a speedy trial motion. The three-year delay was explained by the "complexities of the case," including defendant's psychiatric conditions and the need to determine whether he was competent to stand trial, as well as the extensive plea bargaining which resulted in reducing defendant's charge from first-degree murder to aggravated manslaughter.

Similarly, we agree there was no error by the PCR court in its review of the factual basis for the guilty plea and in concluding the factual basis supported defendant's guilty plea to aggravated manslaughter. Whether defendant intended to kill was not the issue. The crime of aggravated manslaughter requires proof that the "[t]he actor recklessly cause[d] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). The test to be applied is an objective one that is not dependent on the defendant's state of mind. State v. Pindale, 249 N.J. Super. 266, 282 (App. Div. 1991). Generally speaking, where the risk of death is a "probability" rather than a "mere possibility," then aggravated manslaughter is appropriately charged. State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div.), certif. denied, 99 N.J. 212 (1984). See also State v. Williams, 298 N.J. Super. 430, 441-42 (App. Div.), certif. denied, 150 N.J. 27 (1997).

Defendant's guilty plea supplied the facts to support the "probability" that a person in the area of defendant's gunfire would be killed. He answered affirmatively to questions posed by his counsel that he pulled out a .45 caliber handgun and shot in Rosado's direction a "number of times" from the distance of "fifteen to twenty feet," admitting that this not only was "reckless" but was "almost the definition of extreme indifference to human life."

The PCR court correctly concluded that counsel was not ineffective for failing to object to the factual basis provided. We see no error in the method of questioning or the manner in which the plea was taken. See State v. Campfield, 213 N.J. 218, 231-32 (2013) (quoting State ex rel. T.M., 166 N.J. 319, 327 (2001)) ("The trial court's inquiry need not follow a 'prescribed or artificial ritual.' . . . '[D]ifferent criminal charges and different defendants require courts to act flexibly to achieve constitutional ends.' . . . Instead, the defendant's admissions 'should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.'"). The court and counsel questioned defendant specifically regarding the details of his crime, and defendant acknowledged the facts to support his guilty plea to first-degree aggravated manslaughter.

We agree with the PCR court in rejecting defendant's claim that his counsel should have raised additional mitigating factors at sentencing. Defendant's counsel presented witnesses on defendant's behalf who testified about his mental health issues and lack of criminal record. Counsel relied on mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant's lack of a criminal record), and nine, N.J.S.A. 2C:44-1(b)(9) (unlikely to commit another offense), in requesting a ten-year term of imprisonment for defendant, despite the plea agreement of an eighteen-year term. The court had the benefit of the pre-sentencing report and was aware of the psychological evaluations, which found defendant to be competent, when it found that mitigating factor seven did not outweigh the aggravating factors and rejected the applicability of factor nine. Counsel was not required to assert mitigating factors that did not apply to avoid an ineffective assistance of counsel claim, nor does defendant identify which mitigating facts were not before the court at sentencing that caused him prejudice.

We conclude that defendant's further arguments about the impact of cumulative errors and the denial of his Sixth Amendment rights based on his ineffective assistance of counsel claims are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2). In sum, we affirm the PCR court's denial of defendant's petition as to all these claims.

Defendant also contends his counsel was ineffective for failing to file a direct appeal at his request. Because of the equivocal nature of the record before us, however, we are not able to discern whether defendant requested the filing of an appeal. We remand this issue for a determination consistent with our recent decision in State v. Jones, 446 N.J. Super. 28, 30 (App. Div.), certif. denied, __ N.J. __ (2016). In Jones, we reversed the denial of a petition for post-conviction relief, holding that prejudice is presumed where defendant's undisputed sworn statement asserted that he directed his attorney to file an appeal, but no appeal was filed. Id. at 30. Our decision in Jones is consistent with Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 995 (2000), which held that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."

At defendant's sentencing in 2010, his counsel noted that he (counsel) added to the bottom of the appeal rights form that defendant wanted the Mercer County Office of the Public Defender to represent him on appeal. This form was not included in the appellate record. In defendant's 2013 pro se PCR application, defendant asserted his attorney stated he would file an appeal for defendant, but failed to do so. We have not been provided with a complete copy of defendant's PCR petition. There was no reference to the issue of a direct appeal at the 2015 oral argument on the PCR petition. However, the PCR court's decision noted that defendant asked his counsel to file an appeal and then found defendant's assertion to be "vague and conclusory and not grounded in fact."

Because our record is neither complete nor clear, we remand this singular issue to the PCR court to decide, consistent with our holding in Jones. We do not rule out the necessity for an evidentiary hearing on this issue. See Preciose, supra, 129 N.J. at 462; R. 3:22-10. If the PCR court on remand concludes defendant did request the filing of a direct appeal, the court shall enter an order requiring defendant to file a notice of appeal with this court within forty-five days from the date of the PCR court's order. Alternatively, if after remand the PCR court concludes defendant did not request his attorney file a direct appeal, it shall enter an appropriate order.

Affirmed in part and remanded in part for the limited purpose of determining whether defendant requested the filing of a notice of appeal on his behalf. We do not retain jurisdiction.