January 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
RASHIDA SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 96-08-2766, 96-07-0404, 96-02-0302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Payne and Messano.
Defendant Rashida Smith appeals from the denial of her petition for post conviction relief (PCR). She raises three points for our consideration.
THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN ACCEPTING A PLEA THAT IT KNEW CONTAINED ADDITIONAL PROMISES MADE OFF THE RECORD. (NOT RAISED BELOW)
DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
On December 15, 1997, defendant pled guilty to various counts contained in three separate indictments returned by the Essex County grand jury, including charges of robbery in the first degree, N.J.S.A. 2C:15-1, and aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). Pursuant to the plea bargain, the State agreed to recommend that defendant's sentence be limited to an aggregate term of forty years imprisonment with a period of twenty years parole ineligibility pursuant to the Graves Act.*fn1
The agreement was conditioned upon defendant's truthful factual allocution at the time of the plea, and her testimony at the murder trial of her co-defendant, Raheem Williams. It was further agreed that defendant's sentencing would be postponed until after her testimony at Williams's trial.
Before defendant provided the factual basis for her guilty pleas, the following colloquy took place between defense counsel and the judge:
Judge: [Defense counsel], I've indicated to you when we've conferenced this case, that instead of the [forty] with [twenty] years parole ineligibility that I would be willing to sentence the defendant to [thirty] years with [fifteen] years parole ineligibility. Is that correct?
Defense Counsel: That's my understanding, your Honor, and I've communicated that to [defendant].
Thereafter, pursuant to questioning by her attorney, defendant provided an adequate factual basis for each guilty plea. The judge then inquired,
Judge: [Defendant], other than what we've promised you today, my indication to you is of [thirty] years with [fifteen] years parole ineligibility. Has anyone made you any other promises or inducements to get you to plead guilty today?
The balance of the proceedings indicate defendant fully understood the rights she was waiving as a result of her guilty pleas, understood the terms of the agreement including the sentence recommendation to be made by the State, expressed satisfaction with her attorney's representation, and was freely and voluntarily pleading guilty without any threat or coercion.
Defendant in fact testified against Williams but he was acquitted of all charges. On March 20, 1998, defendant appeared for sentencing. Her attorney noted defendant's cooperation with the State, and, recognizing the terms of the plea bargain, nevertheless urged the judge to sentence defendant to a maximum of twenty years imprisonment, ten years without parole. He explained, "I told [defendant] and her family that based upon the assessment of the quality and the nature of the testimony that she offered in the  Williams trial, that I would be able to argue that as a mitigating factor in an effort to reduce the time even further . . . ." The judge replied, "And I indicated that." Defense counsel responded, "Absolutely, and I think we all understood that." When asked if she wished to add anything before sentence was imposed, defendant responded, "[W]hatever I [am] sentenced to, I am willing to do it."
The judge then considered whether defendant's testimony required a result other than the sentence discussed at the time of her guilty plea. He noted, "[T]he question that I have to answer for myself in sentencing you is whether or not your testimony was of such quality so that I would further reduce the charge (sic) . . . ." The judge recounted the number of times during cross examination by Williams's defense attorney that defendant acknowledged lying when she gave her factual basis. Ultimately, the judge concluded that he was going to depart from the prosecutor's recommendation and impose the sentence he promised defendant because she testified against Williams; however, he rejected defense counsel's request for a further mitigation of the sentence finding there was not "such an outstanding performance that I should go down lower." Defendant was sentenced to an aggregate term of thirty years, fifteen without parole.
Defendant's direct appeal was limited solely to the issue of whether her sentence was excessive. On July 21, 1999, we denied her appeal. State v. Rashida Smith, A-2071-98 (App. Div. July 21, 1999).
On or about June 30, 2004, defendant petitioned for post-conviction relief. She relied upon a certification in which she stated she "was led to believe by [her] attorney . . . that by testifying against  Williams [her] plea bargain of [thirty] years with a [fifteen year parole disqualifier] would be reconsidered again to a [twenty] with [ten]." She claimed her attorney told her this further reduction "couldn't be known because  Williams' attorney would use it against [her] on the stand." She further claimed that although she "was signing for a [thirty] with a [fifteen]," her lawyer told her "don't worry about that," and agreed to "help her the whole way through" until she received the lower sentence. She certified that she signed the plea agreement because she "believed him," and because she thought "[she] would receive the [twenty] with a [ten] at sentencing."
Defendant also claimed that "[i]t was never explained to [her] that 'an outstanding performance' was a mandatory element to grant reconsideration to a lower sentence. Never did [she] think [she] would be held accountable for the outcome of  Williams' trial." Because she trusted her attorney, she "signed the plea agreement."
On February 4, 2005, the judge considered defendant's PCR petition. Although we have not been supplied with the briefs filed below, it is apparent from the transcript of the proceedings that defendant urged the court to reduce her sentence "in the interest of justice and fundamental fairness." Essentially, defendant argued that her expectation based upon conversations with her trial attorney was that she would receive a further reduction in her sentence if she pled guilty and testified against Williams. Alternatively, she argued that the judge should conduct an evidentiary hearing regarding the entire plea agreement. However, defendant made it clear that she "was not asking the Court to vacate her plea," and sought only a reduction in the sentence.
Defendant also argued that the sentence imposed was disproportionate to a third co-defendant, the actual shooter in the homicide for which she was convicted. And, lastly defendant argued her sentence violated the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004).
The judge concluded defendant's argument regarding the disproportional nature of her sentence was barred by Rule 3:22-5. Relying upon our decision in State v. Anderson, 374 N.J. Super. 419 (App. Div.), certif. denied, 185 N.J. 266 (2005), and noting that Blakely's holding did not apply retroactively, the judge denied defendant's other sentencing argument.
Turning to her claim that trial counsel provided ineffective assistance because he failed to adequately explain the terms of the plea bargain or otherwise created a false expectation in defendant's mind regarding the agreement, the judge applied the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). He concluded that defendant had not demonstrated a prima facie case of ineffective assistance of counsel. The judge summarized,
What was made plain to [defendant] and . . . it was made plain by me, that the [thirty] with [fifteen] was what she got in return for testifying. And that [defense counsel] had asked for the ability to argue for less, but no one told her that she was definitely going to get less. And [defense counsel] did argue for less. I just rejected his argument because I didn't think it was merited. So, I don't find that there was ineffective assistance of counsel.
The judge entered the order denying defendant's petition on April 15, 2005, and this appeal ensued.
As to defendant's first and third points, we find insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.
Defendant argues for the first time that her plea should be vacated because promises were made that induced her plea of guilty and these were not placed upon the record in contravention of Rule 3:9-2. The record does not reveal that this claim was the subject of any motion addressed to the trial court, nor was it raised in defendant's direct appeal. Thus, pursuant to Rule 3:22-4, it is barred. As to her claim that she was sentenced to a grossly disproportionate maximum term, we agree with the trial judge that this claim is barred by Rule 3:22-5. Furthermore, any reliance defendant places upon Blakely, supra, or State v. Natale, 184 N.J. 158 (2005), is unavailing. Neither case was given retroactive application and defendant's ability to raise the issue by direct appeal has long since expired.
We turn, therefore, to defendant's second point in which she contends her trial counsel provided ineffective assistance because he did "not accurately advise [her] of the conditions of her plea." She contends that trial counsel told her she "would be able to get a [twenty] with [ten], but that this fact c[ould] [not] be put in writing because of the upcoming trial of the co-defendant." She argues before us that these undisputed facts require a remand for an evidentiary hearing before the trial judge.
We begin by accepting defendant's version of the events as set forth in her certification since there was not any sworn statement in rebuttal. We further accept her assertion that at the time she entered her guilty plea, the judge never advised her on the record that he would evaluate "her testimony and the strength of her testimony" in the Williams case before deciding whether or not to reduce her sentence further. Despite any comments made by the judge during the PCR hearing to the contrary, our review of the transcript from the plea proceedings clearly demonstrates defendant was never advised of this variable at the time she pled guilty. In fact, we agree with defendant, and it is obvious from our review of the entire matter, that there was an off-the-record agreement reached between the judge, defense counsel, and presumably the prosecutor to this extent--defense counsel would be free to argue at sentencing that defendant should receive a sentence less than thirty years, and, depending on the quality of her testimony at Williams' trial, the judge was free to impose a lesser sentence. It seems the judge acknowledged this when he noted at the PCR hearing, the possibility of a lesser sentence [c]ouldn't be put on the record because no one knew whether or not there was going to be a further departure. It all depended on what she did when she testified . . . .
[T]hat's the real reason it couldn't be put on the record 'cause nobody knew whether or not a fact to consider lowering the sentence again would occur or wouldn't occur.
However, we conclude nonetheless that defendant has failed to demonstrate a prima facie case of ineffective assistance of counsel.
Initially, we do not condone the apparent agreement reached by all involved to accept defendant's pleas of guilty without thoroughly placing on the record all of the variables that might effect the judge's sentencing decision based upon her cooperation with the State. Rule 3:9-2 requires in relevant part that the judge shall not accept a guilty plea unless it "is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record[.]" (Emphasis added). We think it is abundantly clear that an offthe-record agreement between a defendant and the State regarding sentence exposure based upon cooperation is inappropriate. If the judge is indeed aware of it and agrees to sentence in accordance with such an agreement, the judge should ensure it is placed on the record.
Moreover, it is axiomatic that a cooperating witness who testifies in the trial of her co-defendant may be appropriately cross-examined about the consideration she has received for agreeing to testify. All the particulars of that agreement must be on the record so that the co-defendant may fairly attempt to impeach the cooperator's credibility by raising issues of bias and motive. The interests of justice are not served by permitting a cooperating witness on direct or cross-examination to testify regarding the terms of her plea bargain as actually placed on the record and documented in the plea forms, while at the same time she harbors some secret understanding of other, more lenient terms, based upon conversations with her attorney.
We have not reviewed the transcript of defendant's testimony during Williams' trial, so we cannot conclude whether the issue was the subject of any significant questioning.
Moreover, since Williams was acquitted, the terms of defendant's plea bargain and whether she testified truthfully about them is of little consequence. Nevertheless, permitting any off-the-record agreement as part of a plea bargain is essentially unjust and unfair and we must express our disdain for the practice.
Despite our concerns, however, we conclude defendant has not proven the ineffective assistance of trial counsel under the Strickland/Fritz standard, and therefore her petition was appropriately denied. First, we see no reason to remand the matter for an evidentiary hearing. Rule 3:22-1 does not require an evidentiary hearing for all PCR petitions, and, absent disputed facts outside the trial record, little is to be gained by conducting such a hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, we have accorded defendant the benefit of all favorable inferences from her certification and have accepted her factual contentions. Therefore, in our view, there is no purpose to be served by conducting an evidentiary hearing.
In order to succeed on her claim of ineffective assistance of counsel, defendant must "show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. In order to establish prejudice, defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. In the context of a guilty plea, in order to succeed on this second prong of the test, a defendant must show "there was a reasonable probability that but for the alleged errors of trial counsel, defendant would have insisted on going to trial." State v. McIlhenny, 357 N.J. Super. 380, 386 (App. Div.), certif. denied, 176 N.J. 430 (2003).
The trial judge determined that defendant failed to establish the first prong of the test. He noted that defense counsel had tirelessly advocated on behalf of defendant and had negotiated a plea agreement that significantly reduced her sentencing exposure. He noted that defense counsel continued to pursue a lesser sentence for defendant after she testified and that she in fact received a sentence that was less that what the State suggested. The judge concluded that defense counsel's performance was simply not deficient.
Generally speaking, we agree with these observations. However, even if we concluded that defense counsel's performance was deficient because he failed to either: 1) clearly advise defendant that the possibility of a twenty year sentence was contingent upon the quality of her testimony at Williams's trial; or 2) place this condition on the record at the time of her plea, defendant has failed to demonstrate the results would have been different but for those failings. In other words, defendant has never asserted in her certification or otherwise that had she known about this condition, she would have rejected the plea bargain and insisted on going to trial. In fact, at the PCR hearing, her counsel specifically argued that defendant was not seeking to have her guilty plea vacated in order to proceed to trial. Given the exposure defendant faced on just those counts of the various indictments to which she pled guilty, her decision not to seek such relief is understandable.*fn2
Therefore, even if trial counsel's performance was deficient, defendant failed to establish her claim that it rose to the level of a constitutional violation.