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State v. Twaddle


January 29, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-01-0045.

Per curiam.


Submitted January 7, 2008

Before Judges Parrillo and Sabatino.

Defendant Keith Twaddle appeals the Law Division's order, dated September 5, 2006, denying his petition for post-conviction relief ("PCR") from his convictions for the theft of an automobile and uttering a forged instrument. The convictions were based upon defendant's plea of guilty to both charges in November 2000. In his PCR petition, defendant argued that his trial counsel was ineffective. He renews that argument on appeal, and further contends that his PCR counsel was also ineffective. Because defendant's claims of ineffectiveness all lack merit, we affirm the dismissal of his petition, substantially for the reasons expressed in Judge Gelade's oral ruling of August 25, 2006.

The facts that support the indictment and defendant's guilty pleas are relatively simple. In November 1999, defendant borrowed an Acura automobile, knowing that the car had been stolen from its rightful owner. A police officer in the borough of Middlesex spotted him driving the Acura on November 22, 1999, and pulled him over. Defendant presented to the officer a vehicle registration and an insurance card, both of which he knew were forged. Defendant was subsequently arrested and charged in a Middlesex County indictment with third-degree theft, contrary to N.J.S.A. 2C:20-7, and fourth-degree uttering of a forged instrument, contrary to N.J.S.A. 2C:21-1a(3).

Defendant was represented by Martha Roberts, Esq., in connection with the Middlesex County charges. At the time, defendant was in federal custody on unrelated criminal charges and was awaiting a final disposition by the United States District Court. Defendant was being separately represented by a federal public defender on the federal charges.

On November 11, 2000, defendant appeared with Roberts in the Law Division and pled guilty to both counts of the Middlesex County indictment. During the course of that proceeding, defendant admitted that he had read the plea form, that he had reviewed it with Roberts, and that he understood it and had signed it voluntarily. The plea form specified that defendant was exposed to a prison term of up to five years on the theft offense and up to eighteen months on the uttering offense. The plea form also stated that sentencing was "left to [the court's] discretion," there being "no recommendation by [the] State" as to any particular sentence.

Defendant admitted at the plea hearing that he had committed the two offenses in question. He specifically acknowledged that he knew that the Acura was stolen when he took possession of it. He also admitted that he had presented false documents to the officer, knowing that they were forged and with the intent of creating the impression that he was the person named in those documents.

The court accepted defendant's guilty plea and the underlying factual basis. In the course of accepting the plea, the court verified twice, once from defendant and once from his counsel Roberts, that defendant was aware that the sentences in this case could be imposed either consecutively or concurrently to each other, and also consecutively or concurrently to his federal sentence.

In March 2001 defendant was sentenced to five years on the theft offense and to a concurrent eighteen months on the uttering offense. Those sentences were made consecutive to the ninety-two month federal sentence that he received in October 2000.

Defendant appealed his sentences to our court. We affirmed the sentences. Subsequently, the Supreme Court remanded the case for resentencing. State v. Twaddle, 174 N.J. 360 (2002). The matter returned to the Law Division, which reduced the sentence on the theft offense from five years to four and a half years but otherwise left the sentencing intact. In particular, the consecutive treatment of defendant's federal prison term and his state sentence was left undisturbed. Defendant's PCR petition ensued, which the Law Division denied in a bench ruling after hearing the matter on August 25, 2006.

On appeal of the dismissal of his petition, defendant argues that (1) the PCR court erred in finding that he had failed to demonstrate that his trial counsel was ineffective; (2) an evidentiary hearing on trial counsel's performance should have been conducted; and (3) his PCR counsel was likewise ineffective. None of these contentions is meritorious.

We recognize that under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.

Defendant's attack on the performance of his trial attorney, Roberts, has two facets. First, he argues that she failed to alert him to the risk that the Law Division would sentence him to a term that was consecutive, rather than concurrent, to his federal sentence. That claim is clearly belied by the colloquy at the plea hearing, at which both defendant and Roberts acknowledged to the judge on the record that the court could make the state time in prison consecutive to the federal time. In fact, defendant was given the opportunity in the middle of the plea hearing to consult his attorney and decide whether he wanted to continue to plead. Not once during plea or sentencing did he ever complain about the consecutive nature of his sentence.

Second, defendant argues that Roberts should have had the state court accelerate its plea and sentencing proceedings ahead of the federal court's sentencing, so that the federal court would have had the opportunity to consider making defendant's federal time concurrent with his state time. This argument is fallacious and speculative. It presumes, without any foundation, that the federal court would have been more disposed to a nonconsecutive sentence than the Law Division. Moreover, the argument wrongfully assumes that defendant's trial counsel would have been able to control the Law Division's criminal calendar.

As the PCR judge recognized, it is manifestly apparent that trial counsel's performance was not ineffective. Moreover, defendant has shown no clear prejudice arising from her representation. Consequently, there was no need for an evidentiary hearing on defendant's PCR petition, as he failed to present a prima facie case warranting such a hearing. State v. Preciose, 129 N.J. 451, 462 (1992). It was more than adequate in these circumstances for the judge, as he did, to consider the telephonic oral testimony of defendant himself from his federal prison.

Lastly, we are equally satisfied from our review of the transcript that defendant's PCR counsel did not violate the Strickland/Fritz standards in advocating defendant's interests at the PCR proceeding. His forceful advocacy was by no means pro forma in nature. Counsel also took the extraordinary step of examining defendant from his federal institution telephonically. Defendant's specific claim that PCR counsel had an obligation to procure an affidavit from Roberts, about the advice she gave defendant before the plea hearing concerning his exposure to consecutive prison terms, speculates that such an affidavit actually would have supported defendant's present arguments. We do not rest upon such speculation, particularly in light of the plea transcript's clear indication that defendant was fully aware of his consecutive-term exposure.



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