On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 97-01-00076.
Before Judges Stern, Lefelt and Payne.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
After we remanded for an evidentiary hearing on defendant's petition for post-conviction relief ("PCR"), the PCR judge concluded that while defendant's mother and his attorney were involved in a"sexual liaison" during the course of defendant's representation by his designated public defender, it did not occur until after his guilty plea was entered. Consequently, the judge denied relief.
Defendant claims that"the post-conviction relief court erred in finding that [he] failed to demonstrate that he was denied the effective assistance of trial counsel." The claim is premised on the assertion that"trial counsel engaged in an affair with defendant's mother," that"[o]ver the course of the relationship, counsel pressured defendant's mother to coerce defendant into accepting the plea" and that when defendant sought to withdraw his guilty plea prior to sentencing, his mother stated that"if he did so, neither she nor her family would continue to support him." Defendant seeks to have his"conviction vacated and a new trial ordered."
The State contends that"the record overwhelmingly supports the conclusions of the post-conviction relief court and its findings that defendant failed to establish either that trial counsel was ineffective or that he was prejudiced thereby." In so contending, the State emphasizes that"the sexual encounter could not have influenced defendant's decision to plead guilty, as it did not happen until after defendant had [pled] guilty." The State further argues that"[o]ur standards of review dictate that this court give appropriate deference to the post-conviction court's credibility determinations" and"[a]s defendant established no potential or actual conflict, this court need not consider whether defendant was adversely affected or [if] there was a'substantial likelihood of prejudice.'"
We reverse the denial of post-conviction relief and remand to permit defendant to withdraw his guilty plea and proceed to trial. The strength of the State's case, including the fact that defendant's voice was identified on a tape recording the victim made during the course of the events resulting in the victim's death, may affect the decision to withdraw the guilty plea, but it does not affect the fact that the conduct of defense counsel warrants the relief we order.
The homicide occurred on March 14, 1996. Defendant turned seventeen years old the day after the offenses for which he was charged. Probable cause was established at a hearing held on March 21, 1996. Thereafter, on January 14, 1997, defendant consented to waiver of the matter to the Law Division for disposition as an adult. He was represented by the same attorney, designated by the Public Defender, from the initiation of proceedings through sentencing.
On January 23, 1997, defendant pled guilty to an accusation charging him with felony murder, N.J.S.A. 2C:11-3a(3), in exchange for dismissal of a complaint also charging him with theft, purposeful and knowing murder, armed robbery, and carjacking. At the time of his plea, defendant acknowledged that he was exposed to the maximum sentence permitted for felony murder -life imprisonment with the required thirty years to be served before parole eligibility. The State indicated that it would request imposition of a"life sentence with 30 years to be served before eligib[ility] for parole - [the]'maximum sentence provided by law.'"
In his factual basis, defendant stated that while at the Caldor Shopping Mall on Route 37 in Toms River at approximately 3:00 p.m. on March 14, 1996, he"decided to steal a car,""got in the car... told the woman [therein to] give [him] the keys." After she gave him the keys, defendant"drove a substantial distance from the parking lot" to a"wooded area in Manitou Park." The victim remained"confined" in the car while defendant"thought about what to do to get away with the car." He ultimately"put duct tape on her hands and ankles and... left with the car" after she promised that she would not scream. However, as he was leaving, defendant heard the victim scream and"came back and... put [his] hand over her face [to] stop her from screaming." As he held her mouth, the victim stopped"moving" and stopped"breathing," and defendant realized that she was dead. He indicated that he did not"intend to kill" the victim, and further acknowledged that he led the victim to believe, in response to her questions while in the car, that he had a gun.
In response to the prosecutor's questions directed to the factual basis, defendant acknowledged that his voice was recorded on a tape that the victim made during the course of the transaction and that the tape indicated that he had threatened to use a gun. While defendant stated that he did not know how certain marks got on the victim's face, he admitted that he left the woman knowing that she was dead and used her car until he was arrested several days later. Defendant also acknowledged that"whether [he] meant to or not, [he] smothered [the victim] to death."
Defendant was sentenced to life imprisonment with thirty years to be served before parole eligibility and ordered to pay a $5,000 V.C.C.B. penalty and a $75 Safe Neighborhood Fund assessment.
We affirmed the conviction and sentence on defendant's direct appeal in which he claimed that the sentence was manifestly excessive.
On June 15, 1999, defendant filed a PCR petition based on a claim of ineffective assistance of counsel. The petition was denied. We noted defendant's claim on his subsequent appeal:
In defendant's brief in support of his petition, defendant, a juvenile at the time of the offense, claims that his guilty plea to murder"was a product of coercion and ineffective assistance of counsel due to an actual conflict of interest." He specifically asserted that his assigned counsel"[u]ndertook a course of action to engage in an intimate affair with the petitioner['s] mother..." and that"defense counsel used his mother to coerce him in the direction defense counsel wanted to proceed." He further asserted that, together with defense counsel, his mother"advised him to waive jurisdiction" from the Family Part and"to waive his right to indictment and trial by jury." He added:
On or around early January 1997, petitioner['s] mother visited him in the Ocean County Jail and told him to accept the plea offered by defense counsel or the family would withdraw all support for him..... Defense counsel and petitioner['s] mother worked closely together to represent him. However, from fear that his wife would learn of the affair, defense counsel convinced petitioners' [sic] mother to coerce him into accepting the plea deal, which the petitioner did not want to accept. Moreover, the swift dispensing of this case afforded defense counsel the opportunity to brake-off [sic] the relationship with the petitioners' [sic] mother before it could be discovered by counsels' [sic] wife. And since the guilty plea was a product of coercion and a conflict of interest, the petitioner was denied due process of law and the effective assistance of counsel. Before us, defendant assert[ed] that he was entitled to an evidentiary hearing in order to develop the nature of the relationship and its impact on defendant's actual desires with respect to entry of his negotiated guilty plea.
Appended to the brief in support of defendant's [PCR] petition... was a statement of defendant's mother sworn to before, or taken by, a notary public. ...