November 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VAUGHN A. BEAMON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-03-0438 and 97-11-1467-Z.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Axelrad and Messano.
Defendant Vaughn Beamon appeals the May 11, 2006, order that denied his petition for post-conviction relief (PCR). We begin by reciting the procedural history leading up to the May 24, 2004, filing of defendant's pro se petition.
Defendant was charged in Middlesex County Indictment 97-11-01467 with unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a; four counts of armed robbery in the first degree, N.J.S.A. 2C:15-1; and eluding in the second degree, N.J.S.A. 2C:29-2b. The armed robberies included in the indictment were all alleged to have occurred on September 19, 1997.
Defendant was also charged in Monmouth County Indictment 98-03-0438 with eight counts of armed robbery in the first degree, N.J.S.A. 2C:15-1; eight counts of unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5b; and eight counts of possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a. The armed robberies and related weapon offenses were all alleged to have occurred between February 12, 1997, and August 29, 1997.
The indictments were consolidated for disposition, and on August 24, 1998, defendant appeared in Monmouth County on the charges. Pursuant to a negotiated plea agreement, defendant pled guilty to the eight counts of the Monmouth County indictment and the four counts of the Middlesex County indictment that charged him with armed robbery. The remaining counts of both indictments were to be dismissed.
Two of the Monmouth County armed robberies and all four of the Middlesex County armed robberies occurred after the passage of the No Early Release Act (NERA)*fn1 , and thus subjected defendant to a mandatory period of parole ineligibility equal to eighty-five percent of his sentence. The State, however, agreed to a sentencing recommendation that in large measure avoided NERA's consequences. It agreed that defendant would receive a total aggregate sentence of forty years, twenty of which would be served without parole, on his guilty pleas to three of the nonNERA armed robberies. All other sentences would run concurrently with each other and concurrent to the sentences imposed on these three counts.
The defendant then entered his guilty pleas, and our review of the transcript of the proceedings reveals they were entered knowingly, voluntarily, and with a full understanding of the consequences. On November 5, 1998, defendant was sentenced in accordance with the plea bargain.
Defendant's direct appeal was limited solely to the question of whether his sentence was excessive. By order entered July 27, 1999, we denied defendant's appeal. Defendant's petition for certification to the Supreme Court was denied by order dated January 28, 2000.
In his pro se PCR petition, defendant argued he was "not indicted by an independent and informed grand jury," that he was denied the effective assistance of counsel, and that he was "improperly interrogated without counsel after his indictment," in violation of State v. Sanchez, 129 N.J. 261 (1992). In a supplemental brief filed by appointed counsel, defendant argued both trial counsel and appellate counsel provided ineffective assistance because they 1) "fail[ed] to procure a formal examination of [defendant's] competency"; and 2) "fail[ed] to properly consult with [defendant] to prepare a defense." He also reiterated the points raised in his earlier pro se filing regarding the grand jury indictment and the police interrogation.
As to the issue of defendant's competency, PCR counsel asserted that defendant's cocaine use was "out of control" at the time of the robberies and that his habit was the result of defendant's brother's murder and the untimely death of his sister. Counsel claimed defendant "may have had a valid defense of diminished capacity."
The parties appeared before Judge Edward M. Neafsey on May 10, 2006, for oral argument on defendant's petition. Acknowledging that "trial counsel skillfully made it so that [defendant] was not subject to NERA," PCR counsel nevertheless contended that trial counsel was ineffective because he consulted with defendant for only "a half an hour prior to the actual entering of the plea." Counsel argued that if defendant had had more time "to communicate further with his attorney," he would have been able to raise a "viable Miranda issue."*fn2 This, he claimed, was based upon the fact that defendant had been bitten by a police dog at the time of his arrest, and "was not given medical treatment" before being "basically forced to give a confession," without counsel and without medical assistance.
PCR counsel pointed to the plea forms defendant executed as further support that he had an inadequate amount of time to discuss the plea bargain with his attorney. He noted that defendant's response to question seven on the form, "Did you enter a plea of guilty to any charges that require a mandatory period of parole ineligibility?," was erroneously "no."
Judge Neafsey rejected defendant's arguments. He began by referencing the two-pronged test of Strickland v. Washington*fn3 and noted that defendant had failed to demonstrate that his trial counsel was "deficient or that counsel's actions prejudiced him." As to the issue of competency, the judge observed that defendant "raised no reasons why a competency exam should have been ordered."
As to trial counsel's insufficient consultation with defendant, the judge noted that defendant's claim of spending only "twenty minutes with his lawyer before the plea hearing" was a "bald assertion" that was belied by the actual record. The judge observed that 1) entries in the Promis/Gavel computer database demonstrated multiple court hearings on the case before the guilty pleas were entered; 2) that defendant acknowledged in his petition that his Middlesex County and Monmouth County counsel visited him in jail; and 3) that defendant expressed his complete satisfaction with his attorney when he entered his guilty pleas. Lastly, despite the apparent discrepancy on the plea form, Judge Neafsey noted that at other points on the form, defendant was clearly advised of the sentence recommendation and the period of parole ineligibility he faced by pleading guilty, and that defendant acknowledged these facts during his colloquy with the judge at the time.
As to the second claim, that defendant was improperly indicted because hearsay and false testimony was introduced before the grand jury, Judge Neafsey noted that claim was barred by Rule 3:22-4.*fn4 Nonetheless, he considered the merits of the claim and concluded that defendant failed to demonstrate in any way that false testimony was introduced. The judge noted that hearsay testimony was admissible before the grand jury and that defendant's statement to the police was a confession to each and every armed robbery to which he pled guilty.
Judge Neafsey considered defendant's final claim that his interrogation violated the Supreme Court's holding in Sanchez. Noting that defendant was interrogated by the police on the day of his arrest and prior to the return of any indictment, the judge concluded that Sanchez, which barred post-indictment interrogation without the presence of counsel, did not apply. Judge Neafsey denied defendant's PCR petition and this appeal ensued.
Defendant raises three points for our consideration.
THE TRIAL COURT ERRED IN DENYING DEFENDANT A HEARING BECAUSE A PRIMA FACIE CASE EXISTED THAT DEFENDANT WOULD ULTIMATELY SUCCEED ON THE MERITS THAT HIS TRIAL COUNSEL WAS INEFFECTIVE.
DEFENDANT WAS NOT BARRED FROM RAISING THE ISSUE OF IMPROPER CHARGING BY THE GRAND JURY IN [A] POST CONVICTION FOR (SIC) RELIEF HEARING.
DEFENDANT WAS IMPROPERLY INTERROGATED WITHOUT COUNSEL AFTER HIS INDICTMENT BY THE MIDDLESEX COUNTY POLICE.
We have considered these contentions in light of the record and applicable legal standards. We affirm the denial of defendant's PCR petition substantially for the reasons contained in Judge Neafsey's comprehensive oral opinion of May 10, 2006. We add these brief comments.
With respect to the contention of entitlement to an evidentiary hearing regarding the ineffectiveness of his trial counsel, we agree with Judge Neafsey that defendant failed to demonstrate a prima facie case of ineffective assistance of counsel. Defendant provided no evidence to support the conclusion that he was incompetent at the time of his plea, or otherwise suffered from a diminished mental capacity at the time the offenses were committed. Nor do we find persuasive defendant's claim that his attorney failed to spend adequate time with him in preparation of his case. Such an assertion, as Judge Neafsey noted, flies in the face of defendant's own statements regarding his general satisfaction with his attorney made at the time of his plea allocution. More importantly, the statements made at the time defendant entered his plea demonstrate his complete understanding of the terms of the plea bargain - one that resulted in defendant favorably avoiding a much longer sentence that would have included a significantly greater period of parole ineligibility.
Although he did not explicitly address defendant's claim that counsel was ineffective for failing to challenge the admissibility of his confession, it is apparent that Judge Neafsey implicitly ruled on this point. He noted,
[D]efendant confessed to all of the burglaries on the same day. He was given his Miranda warnings twice. Once at the crime scene and then again at police headquarters prior to the interrogation. Defendant signed a waiver, a written waiver of his rights.
We infer therefrom that the judge clearly determined that even if counsel's performance was deficient in not seeking a hearing, the result of such a hearing would likely have been a determination that the statement was admissible. Thus, defendant failed to demonstrate prejudice, that is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Preciose, 129 N.J. 451, 463-64 (1992)(quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). Our own independent review results in the same conclusion.
Moreover, defendant never claimed that he made a request for counsel prior to or during his interrogation. He never claimed he made a request for medical treatment for his dog bite before speaking to the police, much less that such a request was denied. He never presented any medical proof to substantiate a claim that his wounds were medically significant, something that could have been easily accomplished by securing the records of the treatment he acknowledged he received after the statement was given. In short, on any of these points, defendant has failed to establish a prima facie case that his trial counsel was ineffective.
We also disagree with the argument raised by defendant's second point. The claim that the evidence produced before the grand juries was hearsay or false is one that clearly should be raised before trial. R. 3:10-2(c). Even if defendant could demonstrate good cause for the late challenge, which he has not, the issue could have been presented on defendant's direct appeal. Since it was not, it is barred by Rule 3:22-4, and defendant has failed to demonstrate entitlement to any of the exceptions provided in that rule. Although not relied upon by the judge, we would also note that defendant's petition in this regard was time-barred by Rule 3:22-12(a), having been filed more than five years after he was sentenced.
To the extent defendant now argues his trial counsel was ineffective for failing to move to dismiss the indictment on these grounds, we note first that the issue was never raised below in either defendant's pro se or PCR counsel's briefs. Nevertheless, we entirely concur with the result reached by Judge Neafsey on the merits of the claim. Defendant produced no proof that the grand jury testimony was false, and it is axiomatic that an indictment may be returned solely upon the presentation of hearsay evidence. State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988).
Much of what we have already said applies to defendant's final point, that his interrogation took place in violation of his right to counsel under Sanchez. That claim was procedurally barred because defendant never raised the issue at trial or on direct appeal. His petition was filed more than five years after his conviction. Lastly, on its merits, the claim is unavailing. Defendant was interrogated on only one occasion by members of the Middlesex County and Monmouth County law enforcement agencies. He was not indicted until well after his statement was given. Sanchez simply does not apply.