On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 01-04-1143 and 01-06-1949.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant Troy DeLaine appeals from the March 24, 2006 order denying his petition for post-conviction relief (PCR) in which he alleged that there was insufficient proof to support his guilty plea to second-degree eluding and that he received ineffective assistance of trial counsel. We affirm.
Defendant was charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count 1), second-degree resisting arrest/eluding, N.J.S.A. 2C:29-2(b) (Count 2); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count 3), under Indictment Number 1143-04-01 arising out of a March 25, 2001 incident in which defendant failed to stop his motor vehicle after being signaled to do so by an officer traveling behind his vehicle. Under a separate indictment, Indictment Number 1949-06-01, defendant was charged with third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (Count 1); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (Count 2); fourth-degree theft, N.J.S.A. 2C:20-3 (Count 3); third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (Count 4); and fourth-degree unlawful theft or receipt of an ATM card, N.J.S.A 2C:21-6(c) (Count 5). These charges stemmed from defendant taking his wife's credit/ATM card without her permission and using it to withdraw money. This incident took place between March 14-15, 2001, while defendant was living with his wife.
On October 17, 2001, defendant appeared before Judge Samuel D. Natal and entered into a negotiated plea agreement with the State that called for him to enter a retraxit plea of guilty to second-degree eluding, Count 2 of Indictment Number 1143-04, and third-degree fraudulent use of a credit card, Count 4 of Indictment Number 1949-06-01. As part of the agreement, defendant also executed a stipulation confirming his status as a persistent offender and eligibility to be sentenced to an extended term pursuant to N.J.S.A. 2C:44-3(a).*fn1 In exchange, the State agreed to recommend a fifteen-year sentence with a seven-and-one-half-year period of parole ineligibility on the eluding charge, and a flat, four-year custodial sentence on the fraudulent use of a credit card offense that would run concurrent to the sentence imposed on the eluding charge.
After the terms of the agreement were placed on the record, the court personally questioned defendant to insure that defendant's plea was knowing, voluntary, and made with a full understanding of the nature of the charges and consequences of his plea. Defense counsel next questioned defendant as to the factual basis for each plea.
On November 30, 2001, Judge Natal sentenced defendant to an aggregate fifteen-year custodial sentence with a seven-and-one-half-year period of parole ineligibility. He found, as aggravating factors, the nature and circumstances of the offense and defendant's role in committing the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The judge found as a mitigating factor, applicable only to the eluding charge, the fact that there were "grounds tending to excuse or justify [his] conduct, although failing to establish a defense[,]" N.J.S.A. 2C:44-1(b)(4), namely, the fact that defendant was "under the influence of an intoxicant." The court also found as a mitigating factor defendant's agreement to make restitution, N.J.S.A. 2C:44-1(b)(6), with respect to the ATM/credit card. Appropriate fines and penalties were imposed, and defendant was ordered to pay restitution.
On April 24, 2002, defendant filed an appeal of his sentence. The Appellate Division Excessive Sentence Oral Argument Panel considered the appeal. By order dated December 10, 2002, we affirmed the judgment of the trial court, finding that the "sentence [was] not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984)." New Jersey v. DeLaine, No. A-4469-01T4.
On July 9, 2004, defendant filed a pro se petition for post-conviction relief (PCR). The court subsequently assigned defendant counsel and an amended PCR petition was filed. Judge Natal conducted a hearing on March 24, 2006.
Defendant testified that while he was incarcerated on the eluding and ATM/credit card offenses, two "outside detective agencies" visited him seeking his fingerprints because of additional allegations against him. He refused to submit to fingerprinting or to speak with the individuals in the absence of an attorney. The next day, he was taken to court for what he thought was a bail hearing, but that turned out to be a follow-up of the fingerprinting encounter from the previous day. Defendant indicated that the judge presiding over the matter told him he did not need a lawyer and ordered him to submit to the fingerprinting. Defendant reported the incident to his trial counsel and asked her "how could she let [his] liberty interests go unprotected," to which trial counsel reportedly responded, "oh, it don't matter because they're going to find you guilty, anyway." Defendant stated that from that point, he felt that trial counsel was ineffective and he started submitting his own motions to the court.
In addition to defendant's testimony, his PCR attorney argued (1) that the factual basis for the plea elicited from defendant did not establish that defendant's eluding conduct posed a risk of death or injury, an essential element of the offense, and (2) that defendant was denied effective assistance of counsel because his trial counsel failed to adequately investigate defendant's charges, forced defendant to plead guilty, and failed to "vigorously" advance mitigating factors.
At the conclusion of the hearing, Judge Natal denied PCR relief. In an oral decision from the bench, the judge ...