May 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL STOKES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-01-0074.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2008
Before Judges Graves and Sabatino.
Defendant Jamal Stokes appeals from an order dated February 2, 2007, denying his petition for post-conviction relief (PCR).
On appeal, defendant presents the following arguments:
THE POST[-]CONVICTION RELIEF COURT ERRED IN DENYING MR. STOKES'S PETITION FOR RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE IT WAS SHOWN THAT HIS TRIAL COUNSEL FAILED TO [ADEQUATELY] COMMUNICATE WITH HIM AND PRESSURED HIM TO ACCEPT THE PLEA.
A. THE PCR COURT IMPROPERLY DENIED MR. STOKES'S PETITION FOR POST[-] CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.
TRIAL COUNSEL FAILED [TO] ARGUE ALL APPROPRIATE MITIGATING FACTORS AT SENTENCING AND THE COURT OVER VALUED AGGRAVATING FACTORS RESULTING IN AN EXCESSIVE SENTENCE.
MR. STOKES DID NOT RECEIVE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN THAT COUNSEL FAILED TO RAISE CERTAIN ISSUES ON APPEAL.
After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Connor in his oral decision on January 19, 2007, with only the following comments.
On June 19, 2003, pursuant to a negotiated plea agreement, defendant pled guilty to first-degree robbery, as charged in count two of Atlantic County Indictment No. 03-01-0074, with the understanding that (1) all other counts of the indictment would be dismissed, and (2) the State would recommend defendant receive an eleven-year sentence subject to an eighty-five percent period of parole ineligibility to be served concurrently with a four-year sentence defendant was already serving.
When defendant entered his guilty plea on June 19, 2003, the court asked him the following questions, and he gave the following answers:
Q: You're able to read and write?
Q: Do you have any physical or any other problem which affects your ability to understand what's going on here today?
Q: Are you presently under the influence of any drugs or medication or anything at all?
Q: In front of you is a multiple page plea form. Is that your signature in various places on that form?
Q: Before you signed that did you read that and go over it with your attorney, Mr. Schreiber?
Q: There are a number of questions answered on that form and blanks filled in. Are they correctly answered?
Q: Did you sign that voluntarily?
Q: Take a look at number 13 if you need to. What's your understanding of the sentence that you would get under the terms of the plea agreement?
A: 11 years.
Q: Okay. And that would be subject to the so-called No Early Release Act, is that correct?
Q: You seek to enter a guilty plea to count 2 of the indictment. On or about the 18th of July 2002 were you at the Sunoco station in the [C]ity of Absecon?
Q: And did you commit an armed robbery of that Sunoco station?
Q: What was it that you did?
A: I was a look out.
A: I was a look out.
Q: And who were you a look out for?
A: Christopher Miller.
Q: Was Faqir Davis involved in this as well?
Q: Okay. And what was your understanding of what was going to happen?
A: I knew everything that was going to happen.
Q: So you knew that with a threat of a firearm the gas station was going to be robbed, is that correct?
Q: And was in fact that gas station robbed by one of your co-defendants using that firearm?
MR. SHILL [ASSISTANT PROSECUTOR]: Judge, that's sufficient. . . . [I]t's an Amoco station, not a Sunoco station, just so the [record is] clear.
THE COURT: Okay. I'm sorry.
Q: It was an Amoco station there, is that correct?
Q: So you were a look out while Christopher Miller and Faqir Davis robbed the place, is that correct?
Q: And one or more of them had a firearm, is that correct?
During the sentencing hearing on August 15, 2003, the court noted defendant "received the benefit of a highly favorable plea agreement. . . . which is substantially below the presumptive." Nevertheless, defendant was sentenced in accordance with the plea agreement. Defendant appealed his sentence and, on October 18, 2004, we rejected his claim that his sentence was excessive.
The Court denied defendant's petition for certification on May 23, 2005. State v. Stokes, 183 N.J. 591 (2005).
The trial court's reasons for denying defendant's PCR petition included the following:
With respect to the various allegations of ineffective assistance of counsel, noteworthy is that the defendant was represented by a certified criminal trial attorney who obviously has other cases, and perhaps did not spend all the time with the petitioner that the petitioner would have liked. Having said that, the proceedings in this particular courtroom, if one would like to get a video transcript of each and every one of the arraignment, status, pretrial conferences in this case would indicate that Mr. Schreiber was here on the defendant's behalf and spent significant time with the defendant discussing the matters. As a practical matter we made available to the defendant the videotape of his co-defendant's plea which was not helpful to this defendant's position. Those issues were gone over. We had a very reluctant defendant in this case, . . . no doubt about that, and I am rather sure that Mr. Schreiber urged him rather strongly that this was an advantageous plea agreement. To do less on Mr. Schreiber's part would have been ineffective. To recommend this plea agreement, to strongly recommend this plea agreement on these facts is totally consistent with being effective rather than ineffective.
There was no duress. We, on a post-conviction relief context, cannot allow a defendant to rely on a self-created issue of fact. Rather, what is set forth on the record, absent some very good reason to the contrary, would control, and from what is based on the record, there was no duress, no inappropriate cajoling of this defendant to enter into the plea, and . . . I further conclude that there was nothing ineffective . . . in appellant counsel's representation. . . . The defendant, in front of me at the time of sentence, basically sought to withdraw the guilty plea. I found that there was no basis for it at that point in time, so there would be no ineffectiveness for any counsel's failure to further advance that.
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz*fn1 test.
First, he must demonstrate his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In the present matter, the PCR court concluded that defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports that determination. Because defendant failed to substantiate that the performance of his trial attorney and/or his appellate counsel was constitutionally deficient, and that he was prejudiced by the allegedly defective performance of counsel, no evidentiary hearing was necessary. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (noting evidentiary hearing need not be held unless "post- conviction relief application involves material issues of disputed fact which cannot be resolved by reference to the existing record"), certif. denied, 158 N.J. 72 (1999).