March 14, 2008; as amended March 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARIUS INGRAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-00186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2008
Before Judges Winkelstein and Yannotti.
Defendant Darius Ingram appeals from an order entered on November 18, 2005, which denied his petition for post conviction relief. We affirm.
Defendant was charged under Essex County Indictment No. 90-5-2563 with first-degree robbery, contrary to N.J.S.A. 2C:15-1. He pled guilty to this charge on September 15, 1990 and the State agreed that defendant would be sentenced as a second-degree offender to a flat sentence not to exceed seven years. At the plea hearing, defendant stated that he committed a robbery on March 14, 1990 in downtown Newark. Defendant said that he asked the victim for change for a dollar. He stated that he "was digging down in [his] pants as if [he] had a gun." Defendant stated that his lawyer had explained the nature of the charges against him and the maximum number of years that he could be incarcerated on a first-degree crime. On December 17, 1990, the judge sentenced defendant to a seven-year term of incarceration.*fn1
Defendant next was charged under Essex County Indictment No. 91-01-00186 with first-degree robbery, contrary to N.J.S.A. 2C:15-1; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). Defendant pled guilty on March 4, 1991. At the plea hearing, defendant stated that on November 3, 1990, he went into a store in Newark, struck a female store employee with his hand, took a bag containing money, and fled the store. The judge asked defendant whether he committed the robbery by inflicting or attempting to inflict serious bodily injury upon the store employee. Defendant's reply was, "[y]es."
Defendant additionally said that he had sufficient time to discuss the plea with his attorney and he was satisfied with the services provided by his counsel. He stated that he understood that the prosecutor would recommend a term of incarceration not to exceed twelve years and dismissal of the count charging aggravated assault. Defendant also stated that he had read and voluntarily signed the plea form.
Defendant was sentenced on March 5, 1991 to twelve years of incarceration for the first-degree robbery charge. The judge ordered that the sentence be served concurrent, but not co-terminus, with the sentence previously imposed on Indictment No. 90-5-2563. The judge also dismissed the count charging aggravated assault. Defendant did not appeal the conviction or sentence.
Thereafter, defendant was charged under Burlington County Indictment No. 96-05-440-I with various offenses. He was tried before a jury, which found him guilty of second-degree conspiracy, contrary to N.J.S.A. 2C:5-2; first-degree robbery, contrary to N.J.S.A. 2C:15-1a(1); and second-degree eluding, contrary to N.J.S.A. 2C:29-2b. At sentencing, the judge merged the conviction for conspiracy with the conviction for first-degree robbery. Because this was defendant's third conviction for first-degree robbery, the trial court sentenced defendant to life imprisonment without parole pursuant to the so-called "three strikes" law, N.J.S.A. 2C:43-7.1a. In addition, the trial court sentenced defendant to a concurrent term of ten years on the eluding conviction.
Defendant filed a notice of appeal and raised the following issues:
INADEQUATE JURY INSTRUCTIONS ON FIRST-DEGREE ROBBERY, WHICH FAILED TO EXPLAIN THE INVOLVEMENT OF A DEADLY WEAPON WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART I., PARS. 1, 9, 10. (NOT RAISED BELOW).
BECAUSE DEFENDANT'S TWO PRIOR ROBBERY OFFENSES RESULTED IN ONLY A SINGLE PERIOD OF INCARCERATION, DEFENDANT WAS NOT ELIGIBLE FOR SENTENCING UNDER THE "THREE STRIKES LAW" AND THE IMPOSITION OF AN EXTENDED LIFE TERM WITHOUT PAROLE VIOLATED HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART I. PARS. 1, 9, 10.
THE MANDATORY EXTENDED TERM SENTENCE OF LIFE WITHOUT PAROLE IMPOSED UNDER NEW JERSEY'S "THREE STRIKES LAW", N.J.S.A. 2C:43-7.1a, CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST. AMENDS. VIII, XIV; N.J. CONST. ART. I, PAR. 12.
We affirmed the convictions and the sentences imposed. State v. Ingram, No. A-841-97 (App. Div. October 26, 1999). Defendant filed a petition for certification with the Supreme Court. The petition was denied. State v. Ingram, 163 N.J. 78 (2000).
Defendant filed his first petition for post conviction relief, which the trial court denied by order entered on October 5, 2000. Defendant appealed and raised the following issues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS PREVIOUS TRIAL ATTORNEY IN ESSEX COUNTY WHEN HE FAILED TO MOVE TO CONSOLIDATE THE TWO ROBBERY INDICTMENTS THAT WERE PENDING SO THAT THE DEFENDANT WOULD HAVE HAD ONE CONVICTION FOR ROBBERY AND THEREBY MAKING THE THREE STRIKES LAW INAPPLICABLE TO THIS CASE.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL WHEN NEITHER ATTORNEY ARGUED THAT DEFENDANT HAD ONLY ONE PRIOR FIRST-DEGREE ROBBERY CONVICTION AND ONE SECOND DEGREE ROBBERY CONVICTION AND THEREBY MAKING N.J.S.A. 2C:43-7.1a INAPPLICABLE TO THIS CASE.
DEFENDANT'S LIFE SENTENCE WITHOUT PAROLE SHOULD BE VACATED BECAUSE THIS SENTENCE WAS IMPOSED WITHOUT AFFORDING THE DEFENDANT A HEARING AS REQUIRED BY N.J.S.A. 2C:43-7.1d.
DEFENDANT'S FIRST DEGREE ROBBERY CONVICTION SHOULD BE VACATED AND BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT POSSESSED A WEAPON IN THE COMMISSION OF THIS OFFENSE (NOT RAISED AT POST-CONVICTION RELIEF HEARING).
We affirmed the denial of post conviction relief. State v. Ingram, No. A-1733-00 (App. Div. March 25, 2002). Defendant's petition for certification was denied. State v. Ingram, 174 N.J. 42 (2002).
On December 27, 2002, defendant filed a motion to vacate his plea to first-degree robbery as charged in Indictment No. 91-01-00186, and to correct an allegedly illegal sentence that was imposed as a result of that plea. In a certification in support of his motions, defendant asserted that he was "ignorant of the true nature of the charges against" him when he entered his plea. Defendant stated that on the day of the plea hearing, his attorney advised him to plead guilty. He said that he put his name on the plea form, which he claimed had already been filled out.
Defendant also stated that his counsel told him to say that he understood what he was doing but defendant maintained that he did not know the difference between first-degree robbery and second-degree robbery. He asserted:
[h]ad I known the difference between these two charges, I would not have pleaded guilty to first-degree robbery because I did not have a weapon or threaten the immediate use of a deadly weapon nor did I inflict or attempt to inflict serious bodily injury on the victim. As I stated at the plea hearing, I merely struck the victim with my hand. She was not injured.
Designated counsel filed a brief in further support of defendant's motions, in which he raised the following arguments:
DEFENDANT'S CONVICTION AND SENTENCE SHOULD BE VACATED BECAUSE THE DEFENDANT DID NOT PROVIDE A FACTUAL BASIS TO SUPPORT THE CHARGE OF FIRST DEGREE ROBBERY.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ENTERED A PLEA OF GUILTY TO FIRST-DEGREE ROBBERY.
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE IT WAS BROUGHT MORE THAN FIVE YEARS AFTER HIS CONVICTION. DEFENDANT SEEKS TO SET ASIDE AN ILLEGAL SENTENCE AND SUCH A MOTION MAY BE BROUGHT AT ANY TIME.
Judge Paul J. Vichness heard the motion on January 24, 2003, and rejected defendant's assertion that he lied under oath when he entered his plea. The judge found that defendant had provided an adequate factual basis for his plea, he was not denied the ineffective assistance of counsel, and the sentence was not illegal. Judge Vichness entered an order on January 24, 2003 denying the motions.
Defendant filed a notice of appeal from the trial court's order, and the appeal was heard as part of the Excess Sentence Oral Argument calendar. By order entered on July 8, 2003, we affirmed the denial of defendant's motions "without prejudice to his right to file a petition for post conviction relief."
Thereafter, defendant filed a motion for withdrawal of the plea to first-degree robbery as charged in Indictment No. 91-01-00186, a motion for discovery, as well as a petition for post conviction relief and to correct an illegal sentence. In his supporting brief, defendant argued, among other things, that: 1) the motion to withdraw the plea should be granted because his plea was entered involuntarily and unknowingly based on misinformation as to the elements of first-degree robbery; 2) he had been denied the effective assistance of counsel at the plea hearing and sentencing because his counsel allowed him to enter the plea without a sufficient factual basis in the record or discovery, and counsel had misinformed him as to elements of first-degree robbery; 3) the petition should not be time barred because he was seeking to correct an illegal sentence; 4) he was denied the effective assistance of counsel in his petition for post conviction relief because assigned counsel failed to obtain discovery and did not address the lack of a mandatory presentence report; 5) discovery should be granted "without costs" to provide defendant "with the tools necessary" to argue that he did not commit first-degree robbery; and 6) his trial counsel should be required to testify concerning her representation of defendant. Counsel was assigned to the matter, and counsel filed a letter brief in further support of defendant's petition.
Judge Thomas R. Vena heard the petition on November 18, 2005. On that date, the judge filed a written opinion in which he concluded that defendant's claims were procedurally barred because they had not been filed in a timely manner, had previously been adjudicated, and could have been and were not raised in a direct appeal. The judge also considered the merits of the claims and found that there was an adequate basis for defendant's plea to first-degree robbery, and no merit to defendant's contention that he had been denied the effective assistance of counsel. The judge entered an order on November 18, 2005, memorializing his findings and conclusions. This appeal followed.
Defendant's counsel raises the following issues on this appeal:
UNDER THE CIRCUMSTANCES, THE GUILTY PLEA TO THE FIRST DEGREE ROBBERY UNDER I-186-1-91 WAS CONSTITUTIONALLY INFIRM AND INSUFFICIENTLY KNOWING AND VOLUNTARY SO AS TO CONSTITUTE A FAILURE OF DUE PROCESS.
TRIAL COUNSEL'S FAILURE TO CONSOLIDATE THE ESSEX COUNTY CHARGES FOR SENTENCING PURPOSES DENIED INGRAM HIS FEDERAL AND STATE RIGHT TO EFFECTIVE COUNSEL.
TRIAL COUNSEL'S FAILURE TO ENSURE A VOLUNTARY AND KNOWING PLEA DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE COUNSEL.
TRIAL COUNSEL'S WAIVER OF AN UPDATED PSR AND FAILURE TO SECURE FACTUAL DOCUMENTATION OF THE CHARGES DENIED DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURES OF COUNSEL TO INVESTIGATE THE FACTUAL BASIS AND TO OBTAIN AND ASSESS ANY DISCOVERY AND EXTRANEOUS MATERIALS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL RESULTING IN A 3 YEAR DELAY IN OBTAINING REVIEW.
CUMULATIVE ERRORS AND OMISSIONS OF THE TRIAL COURTS AND TRIAL AND APPELLATE COUNSEL DENIED DEFENDANT DUE PROCESS, IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (not raised below).
UNDER THE CIRCUMSTANCES, DEFENDANT'S ASSERTIONS OF CONSTITUTIONAL DEPRIVATIONS SHOULD NOT BE FORECLOSED BY PROCEDURAL CONSIDERATIONS.
Defendant has also filed a pro se supplemental brief in which he raises the following arguments:
THE FACTS OF THE CASE TOGETHER WITH THE ALLOCUTION OF THE DEFENDANT IS INSUFFICIENT TO SUPPORT A PLEA OF GUILTY TO FIRST DEGREE ROBBERY.
We have carefully considered the record in light of the contentions raised on appeal and the applicable law. We are convinced that defendant's contentions are without merit. R. 2:11-3(e)(2). We affirm the order denying defendant's petition for post conviction relief, motion to withdraw the plea, and motion to correct the allegedly illegal sentence, substantially for the reasons stated by Judge Vena in his thorough and comprehensive opinion filed November 18, 2005. We add the following brief comments.
We are convinced that Judge Vena correctly determined that the sentence imposed for first-degree robbery, as charged in Indictment No. 91-01-000186, was not an illegal sentence. Judge Vena found that there was an adequate basis for defendant's plea. The record fully supports that finding.
Rule 3:9-2 provides in part that a court may not accept a plea unless, after personally questioning the defendant, the court determines: that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
A plea must include "defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987).
Under N.J.S.A. 2C:15-1, "[a] person is guilty of robbery if, in the course of committing a theft, he: (1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens immediately to commit any crime of the first or second degree." Ibid. Furthermore, robbery is a crime of the first degree "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b.
The phrase "serious bodily injury" is defined in N.J.S.A. 2C:11-1b to mean "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Ibid. Our Supreme Court has held that "[a]n attempt to inflict serious bodily injury during a theft is sufficient to support a first-degree robbery conviction." State v. Rhett, 127 N.J. 3, 9 (1992).
At the plea hearing on March 4, 1991, defendant was asked whether he attempted to or did inflict serious bodily injury upon a person during the course of a theft which occurred on November 3, 1990 in Newark. The judge questioned defendant concerning the offense:
THE COURT: What did you do? Tell me about it. . . . About what time of day was it? Morning, afternoon or night.
DEFENDANT INGRAM: Morning.
THE COURT: Where?
DEFENDANT INGRAM: Hawthorne and Osborne Terrace.
THE COURT: Hawthorne and Osborne Terrace?
DEFENDANT INGRAM: Hawthorne and Osborne Terrace.
THE COURT: On foot, or car, or what?
DEFENDANT INGRAM: On foot.
THE COURT: What happened?
DEFENDANT INGRAM: Went into the store.
THE COURT: What kind of store was it?
DEFENDANT INGRAM: Grocery store.
THE COURT: What did you do?
DEFENDANT INGRAM: Took a bag containing money in it and ran out of the store.
THE COURT: What else did you do to that individual?
DEFENDANT INGRAM: Hit him.
THE COURT: What did you hit him with?
DEFENDANT INGRAM: Nothing.
THE COURT: You hit him?
DEFENDANT INGRAM: Yes, with my hand.
THE COURT: With your hand.
[ASSISTANT PROSECUTOR]: The State does accept it.
THE COURT: The Court is satisfied that the defendant --
[ASSISTANT PROSECUTOR]: A female, your Honor, to clarify for the record.
The judge also questioned defendant about the plea agreement form. The judge asked whether defendant's signature appeared on the form. Defendant said it was. Defendant stated that he signed the document and understood it. He also asserted that his lawyer had explained the nature of the charges against him, and told him that he could be sent to jail for up to twenty years on a first-degree crime. The following colloquy ensued:
THE COURT: Did your lawyer answer all of your questions, Mr. Ingram, that you might have asked her to your satisfaction?
DEFENDANT INGRAM: Yes, sir; she did.
THE COURT: Are you satisfied with the services of your lawyer?
DEFENDANT INGRAM: Yes, sir.
As stated previously, defendant did not assert that there was anything deficient about his plea until he made a motion to withdraw the plea some twelve years after he entered it. In ruling on that motion, Judge Vichness noted that when he pled guilty, defendant stated under oath that he committed the offense, and twelve years later was asking the court to believe that he lied when he made that statement. Judge Vichness found:
You knew what you were pleading to, you admitted under oath the elements of [first-degree robbery]. You knew what your sentence was going to be. You got the sentence that you were promised. . . . It [is] not an illegal sentence[.]
In his written opinion in this matter, Judge Vena noted that defendant had acknowledged when he entered his plea that he committed all of the elements of first-degree robbery. The judge further noted that defendant had not asserted that he did not understand enough about the law as it applied to the facts of his case. The judge found that there was an adequate factual basis for the plea; defendant had entered the plea knowingly and voluntarily; and the resulting sentence was not illegal. The record fully supports the judge's findings.
Moreover, Judge Vena properly found that defendant's plea was not constitutionally deficient. "A factual basis [for a plea] is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." State v. Mitchell, 126 N.J. 565, 577-78 (1992). Here, defendant did not make a contemporaneous claim of innocence when he entered his plea to first-degree robbery, nor was there any indication that defendant did not know enough about the law as it applied to him to knowingly and voluntarily plead guilty to the offense.
We have considered the other arguments raised by defendant's counsel and by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).