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State v. Clement


May 15, 2008


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-09-1816.

Per curiam.


Submitted May 5, 2008

Before Judges Parrillo and Baxter.

Defendant Courtney Clement appeals from a February 16, 2007 order that denied her first petition for post-conviction relief (PCR). We affirm.


In January and February 2004, defendant was tried for murder. The testimony at trial established that during an argument, defendant picked up a knife and stabbed the unarmed victim twice. The victim died as a result of those injuries. The case was submitted to the jury, but before the jury was able to reach a verdict, the judge declared a mistrial after a juror stated that he could not be impartial.

After granting the mistrial, the judge set the matter down for a case management conference on March 3, 2004, for the purpose of determining whether defendant would be entering a negotiated plea of guilty or whether, instead, a new trial date should be set. On March 3, 2004, defendant accepted the State's plea offer of twenty-five years imprisonment, subject to an eighty-five percent parole ineligibility term as required the No Early Release Act (NERA),*fn2 on a charge of first-degree aggravated manslaughter. In return for defendant's plea of guilty to aggravated manslaughter, the State agreed to dismiss the murder charge.

We describe the March 3, 2004 plea colloquy in some detail because defendant's PCR claims arise from that proceeding. At the beginning of the proceeding, the assistant prosecutor emphasized that the twenty-five year term of imprisonment was subject to NERA. He specifically noted that defendant would be required to serve twenty-one years, three months and one day before becoming eligible for parole. The assistant prosecutor also observed that defendant had completed the NERA supplemental plea form. The judge continued the discussion of the required NERA parole ineligibility term and specifically asked defendant whether she understood that pursuant to NERA, she would be required to serve eighty-five percent of the sentence without eligibility for parole. Defendant answered "yes."

At the beginning of the plea proceeding, the judge asked defendant whether she had been "given enough time to make up [her] mind on what [she] want[ed] to do," to which she again answered in the affirmative. Defendant also acknowledged that no one had forced her to enter a guilty plea and that she was satisfied with the legal representation provided by her lawyer.

The judge then elicited from defendant a factual basis for her plea of guilty to aggravated manslaughter. Defendant acknowledged that she stabbed the victim twice and that the victim died of those injuries. She also acknowledged that the victim was unarmed.

Immediately after defendant provided her factual statement and entered her plea of guilty, the following discussion ensued between the judge and defendant:

Q: Okay. All right, and so I should also say that I heard the facts at trial. I heard your testimony.

A: Yes.

Q: And I think based upon your testimony alone that the jury could have found you guilty of murder.

A: Yes.

Q: We talked about passion provocation during the trial. And it was my assessment of the facts that no reasonable jury could have found from the objective standpoint that there was passion at that particular time as set forth under the standard, what a reasonable person under that particular situation would have acted in the way you did, and I don't think that under those facts that that could have happened. And also in terms of self-defense, again, based upon a reasonable person evaluation the victim didn't use deadly force against you. Didn't have a weapon. And the force that you used was certainly not justified under a self-defense theory.

Certainly at another trial, you would be entitled to raise self-defense. Certainly passion provocation manslaughter would go to the jury again, as would the aggravated manslaughter and reckless manslaughter. You understand that.

A: Yes.

Q: But I'm just saying that my assessment of it in terms of your factual basis for your plea here, would be that self-defense didn't apply and passion provocation really didn't apply either. Do you understand that?

A: Yes.

Q: You know, a jury very well could have found you, and apparently 11 of the jurors agreed, that it was a murder case. You've agreed to plead guilty to aggravated manslaughter. I'm satisfied that certainly your actions would fit that statute in the sense that at the very least your actions were reckless. At the very least they showed indifference to--showed circumstances manifesting extreme indifference to human life. So based upon your admissions here today, and also what I heard at the trial, I'm satisfied there's a factual basis for, certainly for an aggravated manslaughter plea in this particular case.

The judge also asked defendant whether she was "on any medication," to which defendant responded that she was taking Zyprexa, Depakote, Paxil and Trazodone.*fn3 The judge asked her the purpose of those medications and defendant explained that "[t]hey help me to keep my temper down. Help me sleep." When the judge asked her if she felt "affected by those drugs in any way as [she] st[oo]d before [the court]," she answered "no, I do not." The judge then asked whether she had any difficulty understanding anything that had been discussed, to which she again answered in the negative.

At the conclusion of the proceedings, the judge specifically found that defendant's guilty plea was knowing and voluntary and that there was a sufficient factual basis for her plea of guilty. Accordingly, the judge accepted defendant's guilty plea and set the matter down for sentencing on April 23, 2004.

Four days before sentencing, defendant filed a motion to withdraw her guilty plea. In her moving papers, defendant argued that her attorney had not adequately advised her of the advantages of a trial and failed to tell her that it was her decision whether or not to testify. She also argued that her attorney failed to adequately explain the NERA consequences of her plea. Immediately before beginning his oral argument on defendant's motion to withdraw her guilty plea, defense counsel specifically stated that he had discussed with his client "the possible conflict" and he reported to the judge that "she does wish me to continue on as her counsel." Counsel then asked defendant if that was correct and she answered "yes." After considering defendant's arguments, the judge denied defendant's motion to withdraw her guilty plea and proceeded with sentencing.

In her PCR petition, defendant raised the same claims she presents on appeal: (1) her guilty plea was not voluntary, but was instead coerced by the judge's comments that at any retrial she faced a substantial likelihood of being convicted of murder;

(2) trial counsel provided ineffective assistance of counsel because he failed to explain the provisions of NERA, the advantages of proceeding to trial and her right to testify; and

(3) trial counsel provided ineffective representation at the time he argued the motion to withdraw the guilty plea because he had a conflict of interest. In a cogent and well-reasoned oral opinion, Judge Chaiet concluded that defendant's PCR claims were procedurally barred and substantively without merit. He accordingly denied the PCR petition without affording defendant an evidentiary hearing.

On appeal, defendant raises the following claims:





In Point I, defendant argues that the trial court erred in denying her PCR petition because the judge's comments during the plea colloquy pressured and coerced her into pleading guilty, thereby rendering her plea involuntary. The State argues that defendant is procedurally barred from asserting that claim in a PRC proceeding. We agree.

A defendant may not raise in a PCR proceeding a claim which could have been presented and conclusively determined on direct appeal. Rule 3:22-4 provides in pertinent part:

Any ground for relief not raised in a prior proceeding under this rule . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the [PCR] hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4.]

The Rule requires a defendant to pursue relief by direct appeal and prohibits the use of post-conviction relief to assert claims that could have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). Post-conviction relief is not a substitute for direct appeal. State v. Marshall, 148 N.J. 89, 146 (1997). Where the trial proceedings present a complete record for the evaluation of a defendant's claims, and an appellate panel can resolve those claims without the need to resort to matters outside the trial record, the claim must be presented on direct appeal. State v. Preciose, 129 N.J. 451, 462 (1992).

Here, we are satisfied, as was Judge Chaiet, that defendant's complaints about the judge's comments during the plea colloquy and her contention that her plea was therefore not voluntary could have, and should have, been raised on direct appeal. See R. 3:22-4. It is evident that nothing defendant raised during the PCR proceeding lay outside the trial record. Under those circumstances, we agree with the judge's conclusion that defendant's claim that her plea was involuntary is procedurally barred.

In light of that conclusion, we need not address the substance of defendant's claim. Nonetheless, we observe that the judge did not make the comments in question until after defendant had entered her guilty plea. Thus, defendant's contention that the judge's comments served to pressure her into entering a guilty plea that she would otherwise not have entered is belied by the record itself. Moreover, we view the judge's comments as a proper evaluation of his reasons for having accepted defendant's guilty plea. Judge Chaiet presided at the murder trial and heard all of the testimony. Our common experience informs us that it is not unusual for a judge who accepts a guilty plea after a mistrial to comment on the trial evidence and discuss the guilty plea in light of that trial evidence. Accordingly, in addition to being procedurally barred, defendant's claim in Point I is substantively devoid of merit.

Although not supported by a separate point heading, defendant makes an additional claim in Point I. She argues that in addition to pressuring her to plead guilty, the judge failed to make any inquiry about whether her medications had interfered with her ability to make an informed decision about whether to plead guilty. That claim too is belied by the record itself. The record demonstrates that Judge Chaiet asked defendant what medication she was taking, the reasons those medications were prescribed and whether those medications affected her in any way during the plea proceedings. Only after defendant responded that the medications did not in any way interfere with her ability to understand the proceedings did the judge proceed with the hearing. We thus conclude that defendant's claim that the judge erred by not inquiring further about her medications is meritless.


In Point II, defendant argues that trial counsel was ineffective because he failed to explain the consequences of a NERA plea and failed to adequately discuss with her the advantages of a trial and her right to testify. To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 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. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

Defendant's claims of ineffective assistance of counsel do not warrant extended discussion. As to defendant's contention that trial counsel was ineffective for failing to explain that the plea agreement required her to serve eighty-five percent of her sentence before becoming eligible for parole, suffice it to say that the judge, the prosecutor and defense counsel all discussed that very subject during the plea proceeding. On two separate occasions, the judge asked defendant if she understood that the eighty-five percent parole ineligibility term was mandatory. On both occasions, she answered in the affirmative. The record also demonstrates that the judge thoroughly reviewed the supplemental plea form for NERA offenses. Defendant acknowledged that she read the form and had understood its provisions. Under these circumstances, we are satisfied that her contention that trial counsel was ineffective for failing to explain the NERA consequences of her plea is without merit.

As to defendant's contention that trial counsel was ineffective because he failed to discuss the advantages of proceeding to trial, as Judge Chaiet commented, defendant was present throughout her entire trial and was herself in a position to evaluate the advantages and disadvantages of proceeding to trial. Moreover, during the plea colloquy, the judge reviewed with defendant in considerable detail her right to call witnesses and cross-examine the State's witnesses had she chosen to proceed with a retrial. We also agree with the State that defendant's claim that her attorney failed to explain the benefits of trial is a conclusory statement unsupported by any specific description of the particular advantages of trial that her attorney allegedly neglected to explain.

As to defendant's contention that trial counsel was ineffective because he failed to explain that she had the right to testify at any retrial, we agree with Judge Chaiet's observation that defendant testified during the trial and was consequently well aware of the benefits, and indeed the hazards, of testifying in her own behalf. We agree with Judge Chaiet's conclusion that defendant's claim of ineffective assistance of counsel was devoid of merit.


In Point III, defendant argues that the court erred in denying her petition for post-conviction relief because the judge failed to conduct an inquiry concerning whether trial counsel had a conflict of interest when counsel argued defendant's motion to withdraw from the plea agreement. In particular, she asserts that because her motion to withdraw from the plea agreement was premised, to a considerable degree, upon the alleged shortcomings of trial counsel, the court was required to have thoroughly explored the issue of a potential conflict of interest thoroughly before permitting counsel to represent defendant during the motion.

We agree with Judge Chaiet's conclusion that this claim lacks merit. Before hearing the motion, the judge accepted defendant's own representation that she was willing to waive any conflict of interest. The potential conflict was not complicated and did not require extended discussion. It was obvious that the same lawyer whom defendant blamed for her current situation was the very lawyer who would be arguing the motion. Defendant has presented nothing to support her contention that the judge was required to have conducted a detailed inquiry. More important, however, we agree with the State that this claim is procedurally barred because it could have been raised on direct appeal. R. 3:22-4.


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