June 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PHIL NIGRO A/K/A CRAIG MABRY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, I-01-10-4195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Collester and C.S. Fisher.
Defendant Phil Nigro (a/k/a Craig Mabry) appeals from the denial of his petition for post-conviction relief (PCR) based on alleged ineffective assistance of trial counsel and PCR counsel. Defendant was indicted on October 17, 2001 for first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-5(b) (count four). On July 15, 2003 defendant entered a plea of guilty to count one, amended to second-degree robbery, pursuant to a plea agreement for a maximum sentence of ten years with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State agreed to recommend dismissal of the other counts of the indictment as well as recommend a sentence of six years or possibly five years with NERA based upon defendant's cooperation in testifying against other unnamed defendants who were not indicted in the matter.
However, on December 5, 2003, defendant requested the court to permit withdrawal of the guilty plea, asserting a claim of ineffective assistance of counsel because he believed that the plea exposure of ten years with eighty-five percent under NERA was contrary to the verbal assurances given by his attorney. The matter was then continued to permit defendant to retain new counsel and file a formal motion to withdraw his guilty plea. On January 30, 2004, defendant's motion to withdraw his plea was denied, and he was sentenced to a term of seven years with eighty-five percent parole ineligibility under NERA with appropriate fines and penalties and 560 days of jail credit.
Defendant filed a notice of appeal from his judgment of conviction on December 23, 2004, and the appeal was heard by us as part of the excessive sentence oral argument calendar. We affirmed the judgment of conviction and sentence on December 13, 2005. Defendant then filed this PCR petition on March 17, 2006, claiming ineffective assistance of counsel and requesting that his plea be vacated. His petition was denied by Judge Thomas R. Vena on September 29, 2006. Defendant filed this notice of appeal on November 21, 2006.
By way of background, the defendant admitted that on May 5, 2001 he and an unnamed individual entered a convenience store near Bradley Court in Newark with the intent to commit a robbery. Defendant stated that the other person had the gun and that both he and his accomplice took money from the store. The defendant then directed the accomplice to shoot the store clerk, and the accomplice did so. After his arrest and indictment, defendant agreed as part of the plea bargain to identify his accomplice and testify against him at trial if necessary. Accordingly, the State agreed to recommend a sentence of not more than ten years with eighty-five percent parole ineligibility under NERA and to recommend a reduction of sentence to six or possibly five years depending upon the degree of cooperation by the defendant.
At the plea hearing defendant testified that he understood the terms of the plea agreement and that he executed the requisite form for entry of a plea of guilty. He also stated that he was satisfied with the services of his trial counsel. However, at the scheduled sentence date of December 5, 2003, defendant moved to withdraw his plea, claiming that he was entitled to a six or a five-year sentence rather than a ten year maximum because he cooperated with the State. He stated that he signed the plea agreement form indicating he could receive up to ten years imprisonment "just to satisfy the prosecutor's office, and on record, [he] was supposed to receive a six, possibly [reduced] to a five [year] incarceration." At this point the assistant prosecutor stated that defendant had not fully cooperated with the State because in his statement given to the prosecutor's office, he claimed he did not participate in the robbery, had no first-hand knowledge of what occurred, and therefore could not testify against the person who shot the store clerk. The prosecutor stated that
[I]n giving of certain information as to who the shooter might be, then, in essence, [defendant] sought to extricate himself from the entire event, and what he did, whether wittingly or unwittingly, was effectively neutralized himself as a potential State's witness.
To finish though, judge, he did give us some information. I will make this recommendation to the court. That under no circumstances could I see what I recommend the court sentenced Mr. Nigro to less than eight years at eighty-five percent based on the name of the individual that he provided.
I would place on the record that if we are able in the future to successfully prosecute the person whose name he gave us without any further cooperation from him, because he is no longer useful as a witness, I would not object to him coming back to his attorney with a PCR motion because he gave us a name, but there is no way to connect that name to anything at this point.
The sentencing judge denied defendant's application to withdraw his plea. On the adjourned sentencing date, the prosecutor recommended a seven-year sentence with NERA, and the judge imposed that sentence. Therefore, defendant did receive the benefit of a plea to a second-degree robbery amended from a first degree robbery, the dismissal of the other counts of the indictment, and a seven-year sentence rather than the ten-year maximum under the plea agreement. However, he asserts he should have received one year less.
On appeal, defendant makes the following arguments:
POINT I -- PRINCIPLES OF FUNDAMENTAL FAIRNESS MANDATE THAT THIS COURT ENFORCE THE TERMS OF THE PLEA BARGAIN DEFENDANT AND THE STATE ENTERED INTO ON JULY 15, 2003. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, 10.
POINT II -- THE TRIAL COURT ERRED BY NOT PROVIDING THE DEFENDANT A DEPRIVATION HEARING.
POINT III -- TRIAL COUNSEL'S FAILURE TO MOVE TO ENFORCE THE TERMS OF THE PLEA AGREEMENT AND FAILURE TO MOVE FOR A DEPRIVATION HEARING CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV -- THE POST-CONVICTION RELIEF COURT'S FAILURE TO CONDUCT AN EVIDENTIARY HEARING CONSTITUTES REVERSIBLE ERROR.
POINT V -- PCR TRIAL COUNSEL'S FAILURE TO MOVE TO ENFORCE THE TERMS OF THE PLEA AGREEMENT AND FAILURE TO MOVE FOR A DEPRIVATION HEARING CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant contends that he complied with the State's condition that he cooperate, and he gave a statement as to the identity of the shooter. He argues that although the statement did not meet the State's expectations, he should still receive the benefit of the plea agreement for a six or possibly five-year sentence subject to NERA and that the court should enforce the terms of the plea agreement by sentencing him to a five or six-year term.
There is no merit to the argument. Defendant was not misled or misinformed about a material element of the plea agreement. He admits that he entered into the plea agreement voluntarily and understood that the agreement provided for a sentence of ten years maximum with a possibility of a reduction to six or five years depending upon his cooperation with the State in identifying and testifying against the shooter. There is also no dispute as to the level of his cooperation. He does not deny that while he provided the prosecutor with a name for the shooter, he extricated himself from the scene so as to have no first-hand knowledge of the crime, thereby neutralizing himself as a potential witness at trial.
We further determine from the record before us that defendant's trial attorney did not render ineffective legal assistance to his client. He successfully negotiated a downgrade from first to second-degree robbery and a dismissal of the other charges in the indictment, and also convinced the prosecutor to recommend a seven-year sentence rather than the ten-year maximum under the plea agreement. The benchmark for judging ineffective assistance of counsel claims is a two-pronged test: (1) whether counsel's performance was deficient, and (2) whether there was a reasonable probability that but for the unprofessional errors of counsel the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant has satisfied neither part of this test as to his trial or PCR counsel. Finally, defendant was not entitled to a plenary hearing because he failed to establish a prima facie test. State v. Preciose, 129 N.J. 451, 462-63 (1992).
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