March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAHAAN USRY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 00-01-00166-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Wefing, Parker, and Lyons.
Defendant Jahaan Usry appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant was charged in an eight-count indictment with conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; purposeful/knowing murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3)*fn1 ; two counts of unlawful possession of a weapon, N.J.S.A. 2C:5(c)(1), -5(b); and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
These charges were based upon the killing of Kevin Llanos on July 25, 1999, in Newark. After an evening of drinking with his friends, Llanos fell asleep in a parking lot at 280 Morris Avenue while wearing a gold watch, a gold bracelet, and a chain. Defendant and two confederates, Tyrone Moore and Larry Frink, known as Malik, came upon the sleeping Llanos and decided to rob him. Llanos died from one bullet wound to the head. Defendant was sixteen years old at the time of the killing, and jurisdiction was waived to the Law Division.
Investigation led the police to look for defendant. Ten days after the killing, defendant, accompanied by his parents, surrendered. After being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 6136, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), defendant was given the opportunity to confer privately with his parents. After that conference, he was again advised of his rights. He then gave a statement in which he admitted his participation in the robbery. He said that he had originally held a rifle which he intended to use during the robbery but decided that would make too much noise. He returned the rifle to the storage shed in which he kept it and returned with a handgun that Tyrone had supplied. Defendant held the gun; Llanos died from one bullet shot in the head.
In September 2000, shortly before defendant's trial was to commence, the trial court held a Rule 104 hearing to determine if defendant's statement would be admissible. Investigator Quovella Maeweather of the Newark Police Department and defendant's mother testified at that hearing. The trial court ruled that defendant was advised of his Miranda rights, that defendant knowingly and intelligently waived those rights "with the participation and in the presence of his parents." Defendant then entered a negotiated plea of guilty to one count of conspiracy to commit robbery, one count of aggravated manslaughter, amended from murder, one count of unlawful possession of a weapon, and one count of possession of a weapon for an unlawful purpose. He also agreed to testify truthfully at the upcoming trial of Malik. In return, the State agreed to recommend a custodial sentence that would not exceed twenty years but would be subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. During the course of the plea colloquy, defendant acknowledged that if he proceeded to trial and were found guilty of felony murder, his minimum period of incarceration would be thirty years. He also acknowledged the possibility that his sentence could exceed that amount. Finally, he also stated that the statement he had provided to the police was true and accurate.
At the conclusion of defendant's plea proceedings, his co-defendant Moore also entered a negotiated plea of guilty, also agreeing to testify truthfully at Malik's upcoming trial. The pleas of defendant and Moore were both conditioned upon the other also pleading guilty.
Approximately one month later, after defendant filed an affidavit to the effect that he wished a psychiatric exam to consider his mental state at the time of the killing, and after his co-defendant Moore filed a motion to withdraw his plea, the State filed a motion to vacate both guilty pleas. Defendant's counsel opposed the motion, arguing that defendant had not retreated from his expressed willingness to testify at Malik's upcoming trial. Defense counsel also expressed concern about the greater sentencing risk that faced defendant if his plea were vacated in light of the likelihood that defendant would be convicted. Moore's attorney advised the court that his client remained willing to testify against Malik if he were given a more favorable plea bargain.
After argument, the trial court granted the State's motion, expressing the view that defendant, by questioning his mental stability at the time of the shooting, had seriously weakened his credibility as a prospective witness and thus not fully complied with his agreement to be a witness against Malik.
Defendant's trial commenced approximately five months later. The record before us does not disclose whether Malik was tried in the interim. On the second day, defendant agreed to enter an open plea of guilty to the entire indictment. At sentencing, the trial court merged the conspiracy count into the robbery count and sentenced defendant to fifteen years in prison, with a five-year period of parole ineligibility and merged the felony murder conviction into the murder conviction and sentenced defendant to a concurrent thirty years in prison, with a thirty-year period of parole ineligibility. The trial court then imposed concurrent terms for the remaining weapons offenses.*fn2 Defendant's aggregate sentence of thirty years, with a mandatory minimum period of incarceration of thirty years, was affirmed on appeal on an Excessive Sentence Oral Argument calendar. State v. Usry, No. A-6703-01T4 (App. Div. Jan. 8, 2003).
Defendant then filed a timely pro se petition for post-conviction relief in which he contended that there was an insufficient basis for a plea of guilty to felony murder, that the plea proceedings were defective because the factual basis was established solely through leading questions, that the waiver of his Miranda rights was invalid, and that his trial counsel misrepresented the charges to his mother, resulting in her having encouraged him to plead guilty. Counsel who was assigned to represent defendant filed a brief on his behalf, contending his trial counsel was ineffective. Defendant appeals from the trial court order denying his petition. Defendant raises the following arguments on appeal.
THERE WAS NO FACTUAL BASIS FOR MR. USRY'S PLEA
A. NO FACTUAL BASIS FOR FIRST-DEGREE MURDER
B. NO FACTUAL BASIS FOR FIRST-DEGREE FELONY MURDER.
MR. USRY IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY WAS INEFFECTIVE FOR MISREPRESENTING THE CHARGES AGAINST HIM.
THE CLAIMS IN MR. USRY'S PETITIONS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
We have carefully scrutinized the entire record submitted to us in connection with this appeal, including the statement defendant made to the police upon his arrest, the plea colloquy at the time defendant entered his first plea, the plea colloquy at the time defendant entered his second plea, and the presentence report prepared for the trial court when it sentenced defendant to thirty years in prison. While we are confident that the record would, contrary to defendant's assertion, support a conviction for felony murder, defendant's conviction for felony murder did not survive his sentencing but merged into his conviction for knowing or purposeful murder. We are constrained to agree with defendant that the record at this juncture does not contain any evidence that defendant's shooting of Kevin Llanos could be found to be either purposeful or knowing. The only items in the record before us that could satisfy those mental states are found in the statements of the co-defendant Moore, but there is nothing in the record which would support a finding that defendant acknowledged the truth or accuracy of those statements.
We consider State v. Mitchell, 126 N.J. 565 (1992), the case upon which the State relies to sustain defendant's conviction in the light of his sparse factual basis, to be distinguishable. In that case, the Court did state that a "court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension . . . ." 126 N.J. at 577. There, however, the Court was considering a defendant's challenge to his factual basis in the context of a petition for post-conviction relief filed beyond the five-year period allowed by Rule 3:33-12. Here, defendant's petition for post-conviction relief was timely filed. In addition, the Court in that case looked to the defendant's pre-sentence report and the sentencing transcript to supply the elements missing from the defendant's plea proceedings. Id. at 581-82. While those sources established that the defendant was causally responsible for the decedent's death, id. at 582, here, defendant's pre-sentence report and sentencing transcript provide no information to support a finding that defendant acted in a purposeful or knowing manner when he shot Kevin Llanos.
At the time defendant's petition for post-conviction relief was argued, his counsel was satisfied to rest upon the briefs submitted. There was thus no full explication of the argument before the trial court, and the trial court did not have an opportunity to consider the full ramifications of the argument. We, thus, reverse the order of the trial court and remand this matter for further proceedings. In the course of those further proceedings, defendant may consider whether it is to his advantage to continue with this challenge or to accept the terms of his final plea.
Reversed and remanded for further proceedings. We do not retain jurisdiction.