On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. SGJ-272-90-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Graves and Alvarez.
After a post-conviction relief (PCR) evidentiary hearing conducted pursuant to our remand, defendant, Martin R. Taccetta, prevailed. He established ineffective assistance of counsel, as a result of which his convictions were vacated, he was released on bail, and a retrial was ordered. Nonetheless he appeals, because a second PCR, filed long after the remand hearing had commenced, was denied. He asserts as separate grounds for the second PCR that the State's proofs were based on perjured testimony, essentially the product of federal, state and local authorities conspiring against him in retaliation for an earlier failed prosecution. He also seeks, as he did in the initial PCR appeal which resulted in the remand, to compel extensive discovery on the conspiracy claim. He further requests the assignment of a different judge to the matter. The State appeals the motion court's award of PCR relief to defendant on the first petition. We affirm, and decline to transfer the matter to another judge.
On August 13, 1993, after a jury trial, defendant was found guilty on Indictment No. SGJ 272-90-1, of count one, second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2(b), (c), (d), and N.J.S.A. 2C:5-2; count two, first-degree racketeering, N.J.S.A. 2C:41-2(c), and N.J.S.A. 2C:2-6; and counts five and six, both of which charged second-degree theft by extortion, N.J.S.A. 2C:20-5, and N.J.S.A. 2C:2-6. Defendant was sentenced as a discretionary extended-term offender to life with twenty-five years of parole ineligibility on count two. Count one was merged into count two. On counts five and six, defendant's sentences were concurrent to each other, ten years subject to five years of parole ineligibility. However, these sentences were imposed consecutive to the life sentence. In 1997, we affirmed the convictions on direct appeal and the Supreme Court denied defendant's petition for certification. State v. Taccetta (Taccetta I), 301 N.J. Super. 227, 233 (App. Div.), certif. denied, 152 N.J. 187 (1997).
Defendant then filed the first PCR, which was initially denied without an evidentiary hearing. As a result of the subsequent appeal, we remanded the matter solely as to defendant's claim of ineffective assistance of counsel in the plea bargaining process. State v. Taccetta (Taccetta II), 351 N.J. Super. 196, 198 (App. Div.), certif. denied, 174 N.J. 544 (2002). Protracted evidentiary hearings were conducted pursuant to the remand. On December 7, 2005, the PCR judge found defendant had been ineffectively represented by counsel in plea negotiations, he vacated the convictions and ordered that defendant be retried on the indictment. Defendant was released on bail the following day.
The complex factual scenario which resulted in the indictment is recounted in detail in the direct appeal opinion. Taccetta I, supra, 301 N.J. Super. at 234-40. It was reiterated in the first PCR opinion. State v. Taccetta (Taccetta II), No. A-3983-99 (App. Div. May 7, 2002) (slip op. at 2-3).*fn1 No purpose would be served by recounting those facts here except to state that the charges against this defendant included murder, of which he was acquitted at trial. The State alleged that the murder and the other crimes were an outgrowth of defendant's involvement with the Lucchese crime family, and a dispute with members of the Bruno-Scarfo family involving illegal slot machines. Only one of defendant's co-defendants was convicted of all counts of the indictment, including the murder count.
Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, ¶ 10. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, defendant must show that counsel's performance truly was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).
In the first PCR petition, defendant alleged that trial counsel incorrectly advised him as to the potential sentencing consequences if convicted, which meant he could not intelligently assess the plea offer extended to him by the State. As we previously stated, "plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." Taccetta II, supra, 351 N.J. Super. at 200. Furthermore, "an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance." Ibid. Lastly, where a guilty plea is entered on mistaken advice as to possible sentences, the fairest method of vindication of a defendant's rights is "to return [the] defendant to the position he was in prior to the plea offer." Id. at 201. In other words, a defendant can choose to enter a guilty plea after renegotiation with the State, or proceed with a new trial.
Defendant claimed he was told that if he were acquitted of the murder charge, but convicted of the remaining charges, his total maximum exposure would be twenty years, "must serve ten." For that reason, we determined that a prima facie showing of ineffective assistance of counsel had been made by defendant. We directed that the focus of the evidentiary hearing on remand would be: to demonstrate to the court that a favorable plea offer was made, that the advice his counsel gave him respecting his sentencing exposure if acquitted of the murder was seriously deficient in that there was a substantial disparity between the advice and the actual exposure, and that defendant would have accepted the plea offer had he been correctly advised. [Ibid.]
As defendant had already been acquitted in federal court of the murder charges, he was confident he would be acquitted of murder in the state court as well. Trial counsel testified at the PCR hearing that he advised his client that if convicted on the racketeering and extortion charges, assuming an acquittal on the murder charge, he would be sentenced to a maximum of twenty years subject to ten years of parole ineligibility. He calculated the sentence at ten years on the racketeering count, subject to five years of parole ineligibility. Trial counsel then assumed the extortion offenses would be sentenced concurrently with each other, and that defendant would receive ten years subject to five years of parole ineligibility on each count, but likely consecutive to the racketeering count. Trial counsel mistakenly believed the racketeering count could not be greater than a second-degree offense if there was an acquittal on the murder charge. As a result, he calculated that defendant's exposure would total a maximum of twenty years imprisonment subject to ten years parole ineligibility. Given that defendant was discretionary extended-term eligible regardless, pursuant to N.J.S.A. 2C:44-3(a) and (b), it is not clear why he would have come to that conclusion; however, the PCR judge found defense counsel to be credible. We will defer to his findings because he had "the ability to evaluate the witnesses firsthand." State v. Ways, 180 N.J. 171, 196 (2004) (citing State v. Carter, 69 N.J. 420, 427 (1976)). We go on to consider the three questions considered by the PCR judge pursuant to the remand.
I. Was a favorable plea offer made?
The PCR judge found as a fact that a favorable plea offer was made by the State, although no formal writing could be produced. As he explained: in the real world of formulating plea negotiations and having plea bargains . . . ...