On appeal from the Superior Court of New Jersey, Law Division, Camden County, 93-10-2162-I and from the Superior Court of New Jersey, Law Division, Essex County, 94-04-1187-I.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2005
Before Judges Wefing, Wecker and Fuentes.
Defendant, Marshall Rountree,*fn1 appeals from two separate orders, one entered in Camden County and the other in Essex County, each denying his petition for post-conviction relief (PCR). Defendant's appeals were argued before us on the same date. Because many of defendant's arguments on each appeal are inextricably related to his arguments on the other, we address both appeals in a single opinion and affirm both orders.
As a result of his convictions on indictments in two counties, defendant is serving state prison terms totaling sixty years, with twenty-one-and-two-thirds years of parole ineligibility. In Essex County, defendant entered a guilty plea to two second-degree Graves Act crimes: aggravated assault and possession of a firearm for an unlawful purpose. He received concurrent ten-year sentences, each with a five-year period of parole ineligibility. Those convictions and sentences were affirmed on direct appeal on April 7, 1998, on an excessive sentence calendar.
In Camden County, a jury found defendant guilty of first-degree robbery and third-degree hindering prosecution. The trial judge found that defendant used a real gun in the robbery and sentenced defendant as a second offender under the Graves Act. L. 1981, c. 31, codified at N.J.S.A. 2C:43-6c, d, g, and h and N.J.S.A. 2C:44-3d. Defendant received a fifty-year sentence with sixteen-and-two-thirds years of parole ineligibility, consecutive to his Essex County sentence. His conviction and sentence were affirmed on direct appeal and certification was denied. State v. Hawkins, 316 N.J. Super. 74 (App. Div. 1998), certif. denied, 162 N.J. 489 (1999).
These appeals raise two significant issues. With respect to the denial of his Camden County petition, defendant's argument raises the question whether State v. Franklin, 184 N.J. 516 (2005) (applying Apprendi v. New Jersey*fn2 to Graves Act second-offender sentencing), applies retroactively on collateral review. We conclude it does not.
With respect to the denial of both petitions alleging ineffective assistance of counsel, defendant's appeals raise the question whether effective representation required counsel in each case to seek consolidation of the indictments for purposes of plea negotiations and sentencing, pursuant to Rule 3:25A-1 and State v. Pillot, 115 N.J. 558 (1989). Defendant contends that the failure of trial counsel in each county to move for consolidation deprived him of the opportunity to negotiate a combined plea agreement and to be sentenced in a single proceeding, thereby avoiding exposure to a Graves Act second-offender sentence on either indictment. We conclude that although counsel should have moved for consolidation, defendant did not demonstrate that consolidation likely would have made a difference.
Extensive details of defendant's crimes are unnecessary to our analysis and resolution of the issues on appeal. Briefly, defendant and two companions became involved in an altercation in Essex County on July 15, 1993. The altercation was sparked when one of defendant's companions spotted his sister's boyfriend. In the course of the ensuing fight, that boyfriend kicked defendant. Defendant pulled out a revolver and shot the boyfriend, leaving him a paraplegic. Defendant fled the scene, tossing the gun down a sewer grate. Two weeks later, on July 27, 2003, defendant, who had not yet been apprehended, was in Camden County. He approached a woman who was about to enter her apartment and threatened to shoot her unless she handed over her purse. Seeing a gun in defendant's hand, she surrendered her purse. She immediately notified the police, and defendant was apprehended shortly thereafter. The gun was never recovered.
The procedural history of each case is unusually convoluted. In Camden County, defendant initially accepted a plea bargain to a Graves Act offense on June 23, 1994. During the course of providing a factual basis for this plea agreement, defendant admitted using a real gun in the robbery. Hawkins, supra, 316 N.J. Super. at 82. This sworn testimony contradicted defendant's earlier statement to the police after his arrest, in which he contended that he had used a toy gun to frighten the victim.*fn3
As part of defendant's Camden County plea bargain, the State promised to recommend a nine-year prison term with three years of parole ineligibility, to run concurrent to any sentence defendant might receive on the Essex County indictment. Defendant had rejected the State's alternative offer, a twelve-year non-Graves Act sentence. When he entered his guilty plea, defendant, as well as the judge, defense counsel, and the prosecutor, knew that defendant was under indictment in EsseX County for the shooting there, and that sentencing on the Camden County case likely would await the outcome of the Essex County charges.
Defendant was tried in Essex County in October 1994. The jury found him guilty of first-degree attempted murder in the shooting, as well as second-degree aggravated assault, second-degree possession of a weapon (a firearm) for an unlawful purpose, and third-degree unlawful possession of a weapon. He was sentenced in Essex County on December 16, 1994, to twenty years with a ten-year parole disqualifier. But on March 3, 1995, with the State's consent, the trial judge granted defendant's motion for a new trial.*fn4 Instead of a retrial, on April 27, 1995, defendant entered a guilty plea in Essex County to second-degree aggravated assault and second-degree possession of a weapon for an unlawful purpose, both Graves Act offenses. Consistent with his plea agreement, defendant received concurrent ten-year sentences for those crimes, the first five years of each sentence without eligibility for parole. He had not yet been sentenced in Camden County.
When defendant was returned to Camden County for sentencing, the Law Division judge rejected his earlier plea agreement on two grounds: it was too lenient for a first-degree robbery, even if the gun was not real; and if the gun was real, it would be an illegal sentence because it would be a second Graves Act offense. The prosecutor then offered to recommend a twenty-year sentence with a seven-year parole ineligibility term, but defendant rejected that offer. As a result, he faced a mandatory extended-term sentence in Camden County, which was later imposed consecutive to his Essex County sentence.
In his Camden County PCR motion, defendant claimed that his extended-term sentence violated his right to due process under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000). He also claimed that he received ineffective assistance of trial and appellate counsel.
The motion judge in Camden County recognized Franklin's holding that the Graves Act second-offender sentencing provisions are unconstitutional under Apprendi, but concluded that Franklin and Apprendi did not apply retroactively on collateral review. The judge rejected all of defendant's ineffective-assistance claims without granting him an evidentiary hearing, finding that defendant failed to demonstrate a prima facie case:
[T]here's been no showing that any testimony is needed to support his claim that trial counsel should have moved for consolidation or moved to exclude the other crimes evidence or should have obtained more suitable clothes or should have moved for mistrial or request cross-racial identification charge or requested gap time and straight jail credit. There's not a prima facie showing that would require an evidentiary hearing in the record.
[T]here's a claim that counsel should have questioned police witnesses regarding inducements that were made to pressure him, but he hasn't produced any affidavits or certifications from any police witnesses to support his claim . . . . [A]nd the same is true with the allegation with respect to the jury panel being tainted . . . . These claims, while we're dealing with them, are such that they're not an affidavit or certification or affidavits or certifications that support a prima facie showing and, therefore, I'm not going to conduct an evidentiary hearing.
The judge in Essex County denied defendant's petition for post-conviction relief in a ruling issued from the bench and later memorialized the ruling in writing. The judge rejected as without merit defendant's argument that his trial counsel provided ineffective assistance by failing to advise him respecting Graves Act consequences of his plea. With respect to the failure to move for consolidation, the judge concluded:
[T]he assumption that a Presiding Judge of a criminal part would grant a motion to consolidate a case with an indictment from another county to circumvent or avoid the purpose of the Graves Act is untenable. Also, defendant's subsequent rejection of what was, in effect, a consolidated plea in Camden County makes the issue moot.
On appeal from the Camden County order denying PCR, defendant presents these arguments:
THE "SECOND OFFENDER WITH A FIREARM" PROVISIONS OF THE GRAVES ACT, N.J.S.A. 2C:43-6c AND 2C:44-3d, VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT INSOFAR AS THEY ALLOW AN EXTENDED TERM TO BE IMPOSED BASED ON A FACT FINDING BY THE SENTENCING JUDGE.
A. APPRENDI RENDERED THE GRAVES ACT UNCONSTITUTIONAL AND THUS DEFENDANT'S SENTENCE WAS AND IS ILLEGAL.
BECAUSE TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE DEFENDANT WAS PREJUDICED THEREBY, BOTH COURTS BELOW ERRED BY DENYING HIS PETITIONS FOR POST-CONVICTION RELIEF.
A. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FROM CAMDEN AND ESSEX TRIAL AND PCR COUNSEL AT SEVERAL CRITICAL JUNCTURES.
B. DEFENDANT WAS SEVERELY PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF COUNSEL.
1. DEFENDANT REJECTED A FAVORABLE PLEA OFFER BASED SOLELY ON MATERIAL FALSE INFORMATION RECEIVED FROM THE COURT AND NOT CORRECTED BY HIS CAMDEN COUNSEL.
2. DEFENDANT WAS NOT ADVISED BY THE COURT OR CAMDEN COUNSEL OF THE CONSEQUENCES OF ENTERING A GRAVES ACT PLEA IN CAMDEN WHILE ...