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State v. Pyatt

November 06, 1998


Before Judges Long, Kestin and Carchman.

The opinion of the court was delivered by: The opinion of the court was delivered by Kestin, J.A.D.

[9]    Submitted: October 14, 1998

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County.

In 1993, defendant was convicted of murder, third degree possession of a weapon (a knife) for unlawful purpose, and fourth degree unlawful possession of the weapon. She was sentenced to a forty-year prison term with thirty years of parole ineligibility on the merged convictions. We affirmed the convictions and sentence in an unpublished opinion, and the Supreme Court denied certification. 142 N.J. 459 (1995).

Soon thereafter, defendant filed this petition for post-conviction relief. In 1996, the petition was denied without a plenary hearing following oral argument based on the papers filed by the parties. Defendant appeals from the order of denial, arguing that she was entitled to an evidentiary hearing on the petition because she had made a prima facie showing as to "numerous instances" of ineffective assistance on the part of both trial and appellate counsel.

After reviewing the record in the light of the arguments advanced by the parties, we conclude that, with a single exception, no plenary hearing was necessary to dispose of the issues raised regarding ineffective assistance of counsel; and that, as to those issues, the petition was correctly denied for the reasons stated by the trial court Judge in his oral opinion. The exceptional issue arises from defendant's contention that her trial attorney failed to advise her of a plea offer and to counsel her appropriately with respect to it.

The issue was presented to the trial court on conflicting written statements. The papers filed in support of defendant's post-conviction relief application included her own affidavit and that of her appellate counsel on all the issues raised, as well as the certifications of each of her parents addressing the plea offer issue primarily. The State had procured and submitted a contrary certification from defendant's trial counsel.

Defendant's April 13, 1994 affidavit laid out, in some detail, a number of trial counsel's alleged shortcomings and omissions. The plea offer issue was addressed in the affidavit's concluding paragraph:

"36. Recently there was a murder trial in Ocean County and in early March the Asbury Park Press published an article about that case. In that article, reference was made to my case it [sic] stated that a plea offer of aggravated manslaughter had been made by the Prosecutor's Office and rejected by me. While I did on several occasions speak to [trial counsel] about what I might do if an offer was extended, he never told me that an actual plea offer had been made. I never knew that a plea offer had actually been extended and that I could have entered a plea to aggravated manslaughter."

Appellate counsel's April 14, 1994 affidavit recited in that respect:

"12. There recently was an unrelated murder case pending in Ocean County which generated publicity. In the reporting of that case, reference was made to Lisa Pyatt's case and the article asserted that Lisa Pyatt had been extended a plea offer which had not been accepted. It was brought to my attention by Lisa Pyatt's family and my client, that Lisa Pyatt was never told, either prior to or during trial, that a formal plea offer had been extended."

"13. Based upon this information I telephoned . . . the trial prosecutor[] and asked him whether a formal plea offer was ever extended. He told me that a plea offer had been extended to Lisa Pyatt's [trial] counsel[.]"

"14. On March 29, 1994, I called [trial counsel] and asked him whether he informed Lisa Pyatt of the plea offer and whether the offer to Lisa was documented in any form. He told me that he informed Ms. Pyatt of the offer and that she rejected the offer. He informed me that his normal procedure was to place the fact of rejection on the record immediately prior to jury selection. He told me that if he placed the offer and rejection on the record it would be found in the September 13, 1993 trial transcript, since this date immediately prior to jury selection. [sic] I have reviewed that transcript and there is no mention of a plea offer or rejection."

"15. Based upon my inquiry it appears that a very serious question and a factual dispute exists as to whether Lisa Pyatt was ever informed that a plea offer had been made and was ...

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