June 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD ROCHE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Ind. No. 96-02-0526.
The opinion of the court was delivered by: Per Curium
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2007
Before Judges Payne and Lihotz.
Defendant Richard Roche appeals from the July 14, 2005 order denying his petition for post-conviction relief (PCR), without an evidential hearing. We affirm.
On February 15, 1996, a Camden County Grand Jury indicted Roche and charged him with conspiracy to commit first-degree murder in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); first-degree murder in violation of N.J.S.A. 2C:11-3a(1) and (2) (count two); capital murder in violation of N.J.S.A. 2C:11-3c (count three); second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b (count five).
The indictment was based upon the State's proffer that defendant traveled from Puerto Rico to Camden because he was hired to kill Eric Coleman, a police informant. Defendant was paid $5000. Coleman was shot on December 24, 1994, and died of multiple gun shot wounds.
On March 24, 1998, defendant entered into a negotiated plea agreement with the State. In exchange for defendant's guilty plea to first-degree murder (count two), the State agreed to dismiss the other counts in the indictment, and to recommend a sentence of life imprisonment with a thirty-year parole ineligibility period, to be served concurrently with defendant's federal sentence, which had been imposed on March 18, 1997, on charges pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961 to 1969 (RICO). The State also agreed that it would not object to defendant's request to serve his state sentence in federal prison, although no affirmative effort to enable defendant to do so was offered by the prosecutor. The plea agreement executed by defendant included the following comment: "State has no objection to sentence being served in Federal Bureau of Prison[s] and shall not take any affirmative application [sic] for the sentence to be served in the State prison system."
Defendant provided the factual basis for his guilty plea, stating that on December 24, 1994, he stood in front of Eric Coleman, and, with the purpose to kill him, shot him as many as five or six times. There was no dispute that Coleman died as a result of his gunshot wounds. The trial court imposed the recommended sentence as set forth in the plea agreement, which was affirmed on appeal. After sentencing, by way of correspondence with federal prison authorities, defendant learned he was ineligible to be transferred to federal prison until the completion of his New Jersey sentence.
On April 4, 2002, defendant filed his PCR petition challenging the sufficiency of the factual basis for his guilty plea and claiming ineffective assistance of counsel. Judge Cook dismissed defendant's assertion of insufficient evidence to support the guilty plea, determining that the issue was barred by Rule 3:22-4, as it could have been raised on appeal, but was not. See State v. McQuaid, 147 N.J. 464, 483 (1997). Judge Cook also denied defendant's ineffective assistance of counsel claim, concluding defendant's argument, that his guilty plea was bottomed on the understanding that he would be serving his State sentence in federal prison, did not present an ineffective assistance claim because the Federal Bureau of Prisons declined to transfer defendant to a federal facility until his State sentence was concluded, a decision which counsel could not control. Additionally, the charge that the prosecutor committed misconduct because he led defendant to believe he could serve his State sentence in federal prison in order to induce him to enter a guilty plea, was not supported by the record below.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED IN DISMISSING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT MUST BE PERMITTED TO RETRACT HIS GUILTY PLEA.
A. Defendant did not receive the benefit of the bargained for plea agreement.
B. Defendant must be permitted to retract his guilty plea because it was not made voluntarily and knowingly.
C. Defendant's plea must be vacated because it lacked sufficient factual basis. [Not Raised below.]
APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
COUNSELS' CUMULATIVE ERRORS RESULTED IN A MANIFEST INJUSTICE.
Although defendant lists various arguments, the essence of his PCR petition is that counsel's assistance was ineffective because counsel failed to determine, with certainty, whether defendant could serve his State sentence in federal prison. Defendant contends that this error requires that he be permitted to retract his plea.
To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and United States v. Cronic, 466 U.S. 648, 657-58, 104 S.Ct. 2039, 2046-47, 80 L.Ed. 2d 657, 667-68 (1984), which the Supreme Court of New Jersey adopted in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, a defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]
[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed. 2d at 694 (internal citation omitted).]
It is conceded that both the prosecutor and trial counsel were unaware the Federal Bureau of Prisons would decline defendant's request for transfer to the federal system. Nevertheless, such a lack of understanding was not an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Moreover, the record establishes a substantial basis for the PCR court's conclusion that defendant would have pled guilty even if he knew the federal authorities could decline his transfer request, and, thus, defendant suffered no prejudice from his plea. As we observed in Horton:
"To vacate the plea, defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." State v. Howard, [110 N.J. 113, 123 (1988)]. That means, the Supreme Court explained, "the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Ibid. [Horton, supra, 331 N.J. Super. at 103.]
In circumstances such as this, in which defendant's motion to vacate his plea was made following sentencing, he has the heavy burden of establishing that the relief sought is warranted "to correct a manifest injustice." R. 3:21-1; State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004). No evidence supports the proposition that defendant's acceptance of the plea offered by the State, which dropped several charges in the indictment and avoided the death penalty, resulted solely because defendant believed he would be housed in federal prison. We are satisfied that no prejudicial effect upon the outcome of the proceeding resulted and the inaccurate information did not render the ultimate outcome unfair and unreliable. See State v. Wilkerson, 321 N.J. Super. 219, 227 (App. Div. (counsel's failure to advise of possible sentencing enhancement consequences for future aberrant conduct involves only a collateral issue and is not ineffective assistance of counsel), cert. denied, 162 N.J. 128 (1999).
We agree with the PCR court's determination that no evidential hearing was necessary, as defendant's petition failed to meet both prongs of the Strickland/Fritz test. The record fully supports Judge Cook's findings and conclusions, and we have determined that any remaining arguments presented in defendant's appeal, not specifically addressed, are lacking in sufficient merit to warrant discussion in the opinion. R. 2:11-3(e)(2).
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