April 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL REIFF, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-06-0648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Cuff, Lihotz, and Simonelli.
Defendant Samuel Reiff appeals from the order of March 9, 2006, denying his petition for post-conviction relief (PCR).
Pursuant to a plea agreement, defendant pled guilty to one count of first degree armed robbery with a deadly weapon (knife), stemming from his robbery of a woman's handbag from the victim's home. Defendant is serving a ten-year term of imprisonment with an eight-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1
Defendant appealed his conviction and sentence. We affirmed. State v. Reiff, No. A-0876-00T4 (App. Div. December 20, 2001). Defendant filed a PCR petition, which Judge DeLuccia denied without an evidentiary hearing. On this appeal, defendant raises the following arguments:
THE DEFENDANT'S PLEA AGREEMENT MUST BE VACATED ON DUE PROCESS GROUNDS (U.S. CONST. AMEND. XIV, N.J. CONST. ART. I PAR. 1) BECAUSE IT WAS THE RESULT OF COERCION, MATERIAL MISREPRESENTATIONS OF  FACT, AND INEFFECTIVE ASSISTANCE OF COUNSEL.
THE INDICTMENT SHOULD HAVE BEEN DISMISSED.
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION.
THE DEFENDANT WAS DENIED THE RIGHT OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION.
THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE DEFENDANT'S SENTENCE IS ILLEGAL AND EXCESSIVE.
A. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
B. THE DEFENDANT DID NOT RECEIVE NOTICE OR A HEARING CONCERNING THE IMPOSITION OF NERA.
C. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED ON PROCEDURAL GROUNDS.
As to Point VII, the State concedes and we agree that the PCR petition is not barred by Rule 3:22-12(a). As to defendant's remaining arguments, we reject them and affirm.
Defendant first contends his plea should be vacated because (1) trial counsel coerced him into pleading guilty by misrepresenting that the victim knew him and had identified him; and (2) trial counsel was ineffective for making the misrepresentation. These contentions are not supported by the record. Rather, the record reveals that defendant knew the victim, knew that she usually had cash in her home, and used that knowledge to select her home to commit the robbery.*fn2 Also, there was overwhelming evidence that defendant committed the crime: the victim provided a physical description of defendant and the clothing he was wearing; defendant was wearing that clothing when the police arrested him approximately five minutes after the crime and approximately three blocks from the victim's home; the police found the victim's stolen handbag between defendant's legs when they stopped the getaway car; and a co-defendant inculpated defendant in the crime.
Defendant next contends (1) the indictment should have been dismissed because it was based upon leading questions that produced hearsay responses; and (2) trial and appellate counsel were ineffective for failing to challenge the defective grand jury proceeding. These contentions are without merit.
"'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). "Generally a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). There are only three exceptions to this general waiver rule: (1) grounds preserved under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of denials of admission to pretrial intervention programs under Rule 3:28(g); and (3) review of denials of motions to suppress physical evidence due to an unlawful search or seizure under Rule 3:5-7(d). Id. at 499. None of these exceptions apply here.
Also, "'[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial[,]'" including leading questions. State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988) (citations omitted). Thus, the grand jury proceeding was not defective and any challenge would have failed. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
Defendant next contends (1) trial counsel was ineffective in failing to properly review the NERA plea form with defendant prior to the plea proceeding, and insure that all of defendant's questions were answered prior to entering the guilty plea; and (2) appellate counsel was ineffective for failing to challenge the defective plea hearing. Defendant also contends his sentence is illegal because he did not receive notice of or a hearing regarding the imposition of a NERA term. These contentions are without merit. The record reveals that defendant knew the exact terms of his plea agreement and its consequences, including the applicability of NERA, and had no questions about the plea. Defendant also acknowledged he reviewed the plea forms with his attorney; he signed the plea forms freely and voluntarily; he read and understood the plea forms; and his attorney answered all of his questions to his satisfaction.
We are satisfied that Judge DeLuccia's factual findings that defendant failed to establish a prima facie claim of ineffective assistance of counsel are amply supported by "sufficient credible evidence," and we will not disturb them. State v. Johnson, 42 N.J. 146, 162 (1964). We are also satisfied defendant knew his sentence was subject to NERA and that he would serve eight and one-half years of his ten-year term of imprisonment.
We now address defendant's remaining challenge to his sentence. Defendant first contends the sentence is illegal because Judge DeLuccia made findings to support the imposition of NERA in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005). However, defendant's plea and sentence preceded Blakely and Natale and he does not fall within the limited pipeline retroactivity afforded by Natale. Therefore, those cases provide him no relief. Also, defendant pled guilty to first degree armed robbery and received a ten-year sentence, which is the minimum term for a first degree offense and is not above the presumptive term.
Defendant next contends his sentence is excessive because the judge improperly balanced the aggravating and mitigating factors. This contention is procedurally barred. "[M]ere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of [PCR] and can only be raised on direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 (1974); (citing State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971)); R. 3:22-2(c). Nevertheless, we review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 169 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). Based upon our review of the record, we discern no abuse of discretion and no reason to disturb defendant's sentence.