STATE OF NEW JERSEY v. DONALD P. O'GRADY, JR
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3492-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD P. O'GRADY, JR.,
a/k/a DONALD PATRICK O'GRADY,
a/k/a DON O'GRADY,
a/k/a DONALD PATRICK O'GRADY, JR.,
a/k/a MICHAEL RHATICAN,
a/k/a KEVIN BUSINSKI,
Defendant-Appellant.
_______________________________
Submitted November 14, 2017 – Decided March 5, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
08-01-0025.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor,
attorney for respondent (Kelly Anne Shelton,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Donald P. O'Grady, Jr. appeals from a January 12,
2016 order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. Defendant claims his trial counsel
was ineffective for advising him to reject a plea offer and decline
to testify on his own behalf. We affirm.
I.
The facts proven at trial were set forth in the record and
our opinion denying defendant's direct appeal. State v. O'Grady,
Jr., No. A-3811-11 (App. Div. Mar. 20, 2014). It is sufficient
to summarize the facts here.
On August 18, 2006, defendant and Thor Frey (Frey)
surreptitiously entered a home to steal money held in a safe. Once
inside, defendant restrained the 75-year-old homeowner by placing
a blanket over her face while Frey located the safe. The victim
eventually asphyxiated and died while defendant held her. The two
men then drove away with the safe and split the proceeds.
Defendant spoke of his involvement in the crime to several
people. When he was arrested several days later, he confessed to
police that he restrained the victim and caused her death.
The jury convicted defendant of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (count one); second-degree robbery,
N.J.S.A. 2C:15-1(a) (count two); third-degree burglary, N.J.S.A.
2 A-3492-15T4
2C:18-2 (count three); and criminal mischief,
N.J.S.A. 2C:17-
3(a)(1) (count four).
The trial court sentenced defendant for felony murder to
fifty years in prison with an 85% period of parole ineligibility
under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The
court merged counts three and four into the robbery conviction,
on which it imposed a concurrent ten-year sentence. We affirmed,
and the Supreme Court denied certification. State v. O'Grady,
219 N.J. 630 (2014).
Defendant filed his PCR petition in 2014. The PCR judge had
been the trial judge. The PCR court found that defendant had not
shown a prima facie case to merit an evidentiary hearing. On
appeal, defendant argues the following:
POINT I: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. THE DEFENDANT FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM TRIAL
COUNSEL SINCE, AS A RESULT OF COUNSEL'S
FAILURE TO ACCURATELY INFORM HIM WITH
RESPECT TO THE POTENTIAL PUNISHMENT HE
COULD RECEIVE IF CONVICTED AT TRIAL, HE
3 A-3492-15T4
REJECTED THE PLEA RECOMMENDATION OFFERED
BY THE STATE AND INSTEAD PROCEEDED TO
TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE
SIGNIFICANTLY GREATER THAN THAT EMBODIED
IN THE PLEA OFFER.
C. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
HIS FAILURE TO THOROUGHLY DISCUSS WITH
HIS CLIENT ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION WHETHER OR
NOT TO TESTIFY, AS A RESULT OF WHICH THE
DEFENDANT DID NOT TESTIFY IN HIS OWN
DEFENSE.
II.
To show ineffective assistance, defendant must meet the two-
pronged test of Strickland v. Washington,
466 U.S. 668 (1984), and
State v. Fritz,
105 N.J. 42 (1987). "The defendant must
demonstrate first that counsel's performance was deficient, i.e.,
that 'counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment.' In making that demonstration, a defendant must
overcome a strong presumption that counsel rendered reasonable
professional assistance." State v. Parker,
212 N.J. 269, 279,
(2012) (citation omitted).
Second, "a defendant must also establish that the
ineffectiveness of his attorney prejudiced his defense. 'The
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
4 A-3492-15T4
proceeding would have been different.'" Id. at 279-80. This "is
an exacting standard: '[t]he error committed must be so serious
as to undermine the court's confidence in the jury's verdict or
the result reached.'" State v. Allegro,
193 N.J. 352, 367 (2008).
A PCR court need not grant an evidentiary hearing unless "'a
defendant has presented a prima facie [case] in support of post-
conviction relief.'" State v. Marshall,
148 N.J. 89, 158 (1997).
"To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." Ibid.; see R. 3:22-10(b).
If the PCR court has not held an evidentiary hearing, we
"conduct a de novo review." State v. Harris,
181 N.J. 391, 420-
21 (2004). We must hew to that standard of review.
III.
Defendant's first ineffectiveness claim asserts his trial
counsel advised him to reject a plea offer and go to trial. As
the PCR court recognized, the decision whether to plead guilty or
go to trial belonged to defendant, not his counsel. A defendant
"has 'the ultimate authority' to determine 'whether to plead
guilty[.]'" Florida v. Nixon,
543 U.S. 175, 187 (2004) (citation
omitted); see State v. Williams,
277 N.J. Super. 40, 46 (App. Div.
1994).
5 A-3492-15T4
Nonetheless, "[a] defendant can challenge the voluntary,
knowing, intelligent nature of his plea by showing that the advice
he received from counsel was not within the standards governing a
reasonably competent attorney." State v. Lasane,
371 N.J. Super.
151, 163 (App. Div. 2004) (citing Hill v. Lockhart,
474 U.S. 52,
56-57 (1985)). Similarly, a defendant can challenge his rejection
of a plea offer by claiming he was not afforded "'the effective
assistance of competent counsel.'" Lafler v. Cooper,
566 U.S. 156, 162 (2012) (citation omitted). Moreover, "viewing the facts
alleged in the light most favorable to the defendant," we must
assume trial counsel gave the advice defendant alleges, as there
is nothing in the record to show otherwise. See R. 3:22-10(b).
We examine defendant's allegations in light of the record.
At his arraignment, defendant was offered a deal to plead guilty
to the charges and receive a thirty-year term of incarceration
without possibility of parole in exchange for his testimony against
Frey. Trial counsel confirmed he had conveyed that offer to
defendant, and defendant's PCR certification admitted counsel
accurately conveyed the State's offer.
In his certification, defendant alleged his trial counsel
advised him to go to trial because he would receive forty years
with an 85% parole disqualifier, which would only be four years
6 A-3492-15T4
and four months longer than the State's offer. Defendant alleged
he followed trial counsel's advice and thus went to trial.
Defendant argues trial counsel was ineffective for failing
to accurately inform him of the maximum sentence he could receive
if he declined the State's plea offer and proceeded to trial.
However, at his pretrial conference, defendant reviewed a pretrial
memorandum that made clear he faced a "Maximum Sentence if
convicted" of "NERA life" for felony murder, with 85% parole
ineligibility, with a "Maximum parole ineligibility period" of
"63 ½ years." He initialed that page, and signed the pretrial
memorandum, as did trial counsel.
Moreover, the pretrial memorandum reminded defendant of the
State's plea offer of thirty years with thirty years before parole
if defendant would cooperate against Frey. The memorandum asked:
"Do you understand that if you reject this plea offer, the Court
could impose a more severe sentence than recommended by the plea
offer, up to the maximum sentence permitted if you are convicted
after trial?" Defendant answered "Yes." Defendant also initialed
that page, and he signed the memorandum right below the statement:
"I understand that except in extraordinary circumstances, the
filing of this Memorandum ends all plea negotiations[.]"
At the pretrial conference, the trial court reviewed
defendant's pretrial memorandum. In his presence, the court
7 A-3492-15T4
reiterated the State's plea offer, and noted it had "been denied."
The court addressed defendant, noting the plea offer was now
"withdrawn" and the case was headed to trial. Defendant responded:
"Thank you."
Thus, defendant cannot claim he was unaware that if he went
to trial he could receive a maximum sentence of life and a minimum
sentence of sixty-three and one-half years. He nonetheless chose
to reject the State's offer and to go to trial. He got less than
those maximum and minimum sentences, receiving fifty years with a
minimum sentence of forty-two and one-half years.
Moreover, plaintiff concedes he was unwilling to accept the
precondition for the State's plea offer, namely that he agree to
testify against Frey. Defendant's certification admitted "I was
afraid to do that because of my co-defendant's gang affiliation."
Thus, defendant cannot show prejudice as required by Lafler.
In Lafler, "all parties agree[d] the performance of respondent's
counsel was deficient when he advised respondent to reject the
plea offer on the grounds he could not be convicted at trial."
566 U.S. at 163. Further, it was "conceded" that respondent's
decision to reject the offer and go to trial "was the result of
ineffective assistance during the plea negotiation process." Id.
at 166.
8 A-3492-15T4
Nonetheless, Lafler held the defendant must still show "a
reasonable probability that but for counsel's errors he would have
accepted the plea." Id. at 171. Specifically, the court held
that where deficient advice leads to the rejection of a plea offer,
a defendant must show that but for the
ineffective advice of counsel there is a
reasonable probability that the plea offer
would have been presented to the court (i.e.,
that the defendant would have accepted the
plea and the prosecution would not have
withdrawn it in light of intervening
circumstances), that the court would have
accepted its terms, and that the conviction
or sentence, or both, under the offer's terms
would have been less severe than under the
judgment and sentence that in fact were
imposed.
[Id. at 164.]
Defendant offered no such evidence. His certification does
not claim that but for the advice of trial counsel he would have
taken the plea and agreed to testify against Frey. Because
defendant was unwilling to agree to that precondition, he cannot
show that he "would have accepted the plea," or that "the
prosecution would not have withdrawn" its offer because he would
not agree to testify. Ibid.
Moreover, defendant cannot show prejudice because he chose
to reject the State's plea offer and go to trial despite knowing
he could receive life with a parole ineligibility of over sixty-
three years. The pretrial memorandum adequately warned defendant
9 A-3492-15T4
of the maximum sentence he could receive, and he said he understood
he could receive that sentence. See State v. Dwight,
378 N.J.
Super. 289, 292 (App. Div. 2005) (noting the defendant "was
informed in the pretrial memorandum that if he failed to appear,
the trial could be conducted in his absence").
Notably, defendant's certification did not claim he would
have pled guilty if he had received better advice about how long
a sentence he could receive after trial. He could not make that
claim, as he rejected the plea offer after receiving accurate
advice from the pretrial memorandum that he could receive maximum
and minimum sentences far longer than the plea offer and longer
than he ultimately received. See, e.g., State v. Gaitan,
209 N.J.
339, 374 (2012) (finding the plea form put the defendant "on notice
of the issue of potential immigration consequences" of the plea
decision). Thus, defendant failed to show "there is a reasonable
probability" that he "would have accepted the plea" had trial
counsel repeated what the pretrial memorandum told him. Lafler,
566 U.S. at 164.
As defendant thus cannot show prejudice, we "need not
determine whether counsel's performance was deficient." Marshall,
148 N.J. at 261 (quoting Strickland,
466 U.S. at 697). Therefore,
no evidentiary hearing was needed to determine whether and why
trial counsel gave the advice alleged by defendant.
10 A-3492-15T4
IV.
Defendant argues trial counsel was ineffective because he
advised defendant not to testify at trial. "The decision to
testify rests with the defendant," rather than trial counsel.
State v. Bey,
161 N.J. 233, 269 (2000). During trial, defendant
stated on the record that he understood his constitutional right
to testify, that he knew it was his decision alone, and that he
chose not to testify.
Nonetheless, "[t]he decision whether to testify, although
ultimately defendant's, is an important strategical choice, made
by defendant in consultation with counsel." State v. Savage,
120 N.J. 594, 631 (1990). "[I]t is the responsibility of a defendant's
counsel . . . to advise defendant on whether to testify and to
explain the tactical advantages or disadvantages." Bey,
161 N.J.
at 270 (quoting Savage,
120 N.J. at 630-31); see, e.g., State v.
Jones,
219 N.J. 298, 315 (2014).
Defendant now claims he wished to testify to explain his
statement to police. After his arrest, defendant gave a tape-
recorded statement admitting he committed the charged crimes with
Frey. Defendant specifically admitted he killed the victim during
the robbery. However, in his PCR certification, defendant claimed:
Towards the end of my trial, I told [trial
counsel] . . . that the jury never heard the
truth behind my statement and why I now have
11 A-3492-15T4
a change of heart. I need to take the stand
and present the truth to the jury and at first
[trial counsel] agreed but then a day or two
later he stated to me that he believed it to
be a mistake to take the stand and he didn't
believe that the State proved their case and
again I took his advice, but felt the jury
needed to hear why I felt I had to protect my
Son[.]
Again, "viewing the facts alleged in the light most favorable
to the defendant" under Rule 3:22-10(b), we assume trial counsel
gave the advice defendant alleged. Even if that advice was
deficient, defendant had to make "the showing of prejudice required
by the second prong of the Strickland/Fritz test." Bey,
161 N.J.
at 271-72. Thus, he had to show a "reasonable probability [that]
the result of the trial would have been different" had he given
his proposed testimony. Fritz,
105 N.J. at 60-61, 63; see, e.g.,
Bey,
161 N.J. at 272 (finding the defendant's "testimony would not
have affected substantially the penalty-phase deliberations");
State v. Ball,
381 N.J. Super. 545, 557 (App. Div. 2005) ("we do
not disagree with the judge's assessment" that the "defendant's
proffered testimony would not have changed the outcome of the
trial"); Cummings,
321 N.J. Super. at 170-71 (finding inadequate
the defendant's proposed testimony, a belated, "bare assertion of
an alibi" unsupported by other evidence).
The PCR court, who sat as the trial judge, found defendant's
proposed testimony "would not likely have rendered a different
12 A-3492-15T4
outcome at trial, as the evidence against [defendant] is
compelling." We agree. Witnesses testified defendant and Frey
left a bar together at 2:00 a.m., shortly before the crime.
Defendant's statement to police detailed how he and Frey broke
into the victim's house and stole her safe, and how defendant
restrained the elderly victim by covering her head and holding her
down until she stopped breathing. Defendant also detailed how
they initially could not open the safe, so they took it to the
woods in Pennsylvania and opened it there, finding several thousand
dollars in cash. Defendant's statement was corroborated by the
condition of the victim's house, her cause of death, defendant's
and Frey's possession of thousands of dollars on arrest, and the
discovery of the safe and its remaining contents in the woods.
Moreover, defendant knew details known only to a perpetrator.
Further, a tattoo artist testified that defendant and Frey
met him near a motel to get a tattoo together, that defendant had
the tattoo artist give him a ride him to the woods where defendant
led him to the safe, and that defendant talked about robbing and
killing the victim. The tattoo artist drove defendant back to the
motel, and the police arrested both defendant and Frey near the
motel. Both defendant and Frey were carrying around $2,000 in
cash.
13 A-3492-15T4
Thus, the evidence showed defendant and Frey committed the
crime together, split the proceeds, and were at the same motel.
Given that evidence, defendant's belated and unsupported attempt
to blame his own son was highly unlikely to be credited by the
jury. Further, defendant would have been cross-examined about the
fact that his ex-wife, as well as his son and his son's girlfriend,
reported to the police that defendant had told them he committed
the crimes. The judge who heard both the trial and the PCR
petition properly found "[t]here was no reasonable probability
that the outcome at trial would have been different, as the weight
of the evidence was substantially in favor of the State." The
judge also correctly found an evidentiary hearing was unnecessary
as "the evidence presented by [defendant] is deficient to entertain
even a prima facie case of ineffective assistance of counsel."
Affirmed.
14 A-3492-15T4
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