June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE SPARROW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 27, 2008
Before Judges Collester, C.S. Fisher and C.L. Miniman.
This is an appeal from the denial of defendant's petition for post-conviction relief. Because we are satisfied that defendant was mistakenly denied an evidentiary hearing, we reverse and remand for further proceedings.
Defendant was indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
On July 21, 2003, defendant entered a plea of guilty to conspiracy, both counts of robbery, and possession of a handgun without a permit in exchange for the State's dismissal of the other charges and recommendation of a ten-year term. The trial judge accepted the plea and scheduled a sentencing hearing for September 22, 2003.
On the scheduled sentencing date set, defendant advised that he wished to withdraw his guilty plea. The trial judge adjourned the matter to afford defendant the opportunity to obtain a transcript of the plea proceeding.
On October 14, 2003, the adjourned sentencing date, defense counsel advised the court that defendant was persisting in his desire to withdraw his guilty plea although his counsel clearly suggested that there was no basis in fact for the relief his client sought:
[DEFENSE COUNSEL]: Judge, when we were here the last time, which was the original date for sentence in this matter, [defendant] indicated, to me, that he wanted to have his plea taken back. And he indicated, at that time, that he thought there was a problem with the plea and he didn't articulate to me specifically what that was. But; nonetheless, I ordered a copy of the transcript. I provided him a copy of the transcript. It indicates that the plea entered on July the 21st of this year, it does not appear to me, in the body of the transcript, that there's anything in there that would suggest a basis in the transcript itself for the plea to be taken back.
However, speaking with [defendant], today, he's indicated, to me, he wants to take his plea back. And his contention is that I misled him, even though our discussions obviously do not reflect itself in the body of the plea transcript. And his position is, because he claims I misled him, that he was deprived effective representation of [c]counsel.
Judge, when a client tells me that it's his view that I improperly represented him, as an [o]fficer of the [c]court, I believe it's my obligation to make an application to withdraw and in fact to have [p]ool [c]counsel assigned, so that this issue could be properly litigated. And that's what I would do at this point.
The judge asked defendant if he had anything to say; defendant indicated he did not. The judge then rejected defendant's application for the withdrawal of his guilty plea by referring to the plea transcript, which the judge interpreted as failing to reveal that defendant had indicated his dissatisfaction with counsel's services.
At that point in the proceeding, defense counsel indicated a desire "to clarify the issue," by stating that defendant had told him that he anticipated "a sentence far less than the negotiated plea, either 5 or 7 years." The judge responded that there was "no basis for that belief" and that he had also, on the record, told defendant what the plea agreement was and the term to which defendant would be sentenced. The judge thus viewed the application to withdraw the guilty plea as simply an attempt "to delay his sentencing." The judge again iterated his denial of the motion.
The judge then proceeded to sentence defendant. He merged the conspiracy conviction with one of the robbery convictions to which he sentenced defendant to a ten-year term with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent ten-year term with an 85% period of parole ineligibility was imposed on the other robbery conviction, and a concurrent three-year term was imposed on the weapon conviction.
Defendant appealed. Because the only issue initially asserted concerned the alleged excessiveness of the sentence, the matter was heard by the court's excessive sentencing oral argument panel on December 14, 2004. At oral argument, however, defense counsel referred to defendant's attempt to withdraw his guilty plea. Appellate counsel sought either "a remand to open the record to further evidence or we would ask the [c]court, in its [o]rder, to specifically decide the sentencing issue without prejudice to the defendant, [to permit defendant's] raising [of] the [plea withdrawal] issue again on post conviction relief." Our order of the same date, which affirmed the judgment of conviction, stated only that it appeared that "the issues on appeal relate solely to the sentence imposed" and that we had found that the sentence was not manifestly excessive, unduly punitive and did not constitute an abuse of discretion.
Defendant filed a petition for post-conviction relief on August 22, 2005. He argued that his guilty plea was flawed because his attorney failed to fully inform him of the sentencing consequences of NERA. The PCR judge rejected defendant's request for an evidentiary hearing and denied the application for reasons set forth in a thorough written opinion. Defendant has appealed the denial of post-conviction relief, presenting the following arguments for our consideration:
I. THE TRIAL COURT ERRED BY NOT GRANTING THE PCR PETITION AND PERMITTING DEFENDANT TO WITHDRAW HIS PLEA, OR AT LEAST HOLDING AN EVIDENTIARY HEARING ON WHETHER THE PLEA SHOULD BE WITHDRAWN, WHERE DEFENDANT ASKED TO WITHDRAW THE PLEA PRIOR TO SENTENCING, EXPLAINING THAT HE WAS MISLED BY HIS ATTORNEY AS TO THE PENAL CONSEQUENCES OF HIS PLEA.
A. AS AN INITIAL MATTER, THE TRIAL COURT ERRED BY HOLDING THAT DEFENDANT'S PCR CLAIMS RELATING TO THE PLEA WERE PROCEDURALLY BARRED BECAUSE DEFENDANT FAILED TO RAISE HIS CLAIMS BEFORE; IN FACT, DEFENDANT HAD RAISED HIS CLAIMS PREVIOUSLY, BUT THE CLAIMS COULD NOT BE ADJUDICATED WHERE THEY DEPENDED ON FACTS OUTSIDE THE RECORD.
B. THE TRIAL COURT SHOULD HAVE GRANTED THE PCR PETITION AND PERMITTED DEFENDANT TO WITHDRAW HIS PLEA, WHERE DEFENDANT HAD TIMELY REQUESTED TO WITHDRAW HIS PLEA UNDER R. 3:21-1, I.E., BEFORE THE SENTENCING HEARING, AND WHERE THE BASIS FOR THE PLEA WITHDRAWAL - THAT DEFENDANT WAS MISLED BY HIS COUNSEL - AMPLY SATISFIED THE LIBERAL STANDARD THAT GOVERNS SUCH AN APPLICATION.
C. AT THE VERY LEAST, THE TRIAL COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING ON DEFENDANT'S SERIOUS CONTENTION THAT HE WAS MISLED BY HIS COUNSEL ABOUT THE PENAL CONSEQUENCES OF HIS PLEA.
II. THE TRIAL COURT ERRED BY NOT GRANTING THE PCR PETITION AND PERMITTING DEFENDANT TO WITHDRAW HIS PLEA, WHERE THERE WAS AN INADEQUATE FACTUAL BASIS FOR THE PLEA.
III. THE TRIAL COURT ERRED IN REJECTING DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WITHOUT EVEN HOLDING AN EVIDENTIAL HEARING, ESPECIALLY WHERE TRIAL COUNSEL FAILED TO WITHDRAW FROM THE CASE WHEN HIS INTERESTS BECAME ADVERSE TO DEFENDANT'S.
IV. THE TRIAL COURT ERRED IN REJECTING DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, WHERE APPELLATE COUNSEL DID NOT RAISE ON APPEAL THE DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS PLEA.
Because we conclude that there was no procedural bar to defendant's pursuit of his arguments regarding the effectiveness of his trial counsel, and because the circumstances regarding the performance of counsel are not clearly revealed by the existing record, we remand for an evidentiary hearing into defendant's allegations regarding the performance of his counsel, both in the trial court and in his direct appeal.
In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987).
The Strickland/Fritz test requires that the court determine whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and, if so, whether "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. The "prejudice" requirement of the second aspect of this test "was based on our conclusion that '[an] error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696).
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process" that it "cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. In holding that a PCR applicant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," the Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, supra, 105 N.J. at 52. In short, a defendant is not required to show with mathematical precision that he would have been acquitted instead of convicted, or would not have pled guilty but for trial counsel's mistakes, but is required to show only that his attorney's errors and omissions were of such significance as to undermine confidence in the outcome. In examining the parties' contentions, we must also remain mindful that "[p]ost-conviction relief is a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)).
In considering both the actions of trial counsel at and about the time that defendant determined to seek a withdrawal of his guilty plea, and in considering the initial omission of appellate counsel in pursuing on direct appeal the denial of the motion to withdraw the guilty plea, it is worth observing that a motion to withdraw a guilty plea is subject to a more liberal standard than when sought after sentence has been imposed. See State v. Williams, 342 N.J. Super. 83, 89 (App. Div.), certif. denied, 170 N.J. 207 (2001); State v. Parsons, 341 N.J. Super. 448, 457 (App. Div. 2001). Here, rather than urge this standard as a basis for allowing defendant to go to trial, counsel instead argued that the transcript of the plea failed to reveal a basis for granting the relief his client sought. Moreover, counsel immediately indicated to the judge that because defendant had asserted that counsel had misrepresented the extent of defendant's exposure at sentencing, counsel was placed in a conflict and obligated to seek withdrawal from the case. He did not, however, urge that the judge withhold ruling on the motion until such time as new counsel could be appointed. Instead, notwithstanding the position he advocated regarding his own position in the case, defense counsel continued to represent defendant at the hearing and, as we have noted, urged that what occurred at the time of the plea did not support defendant's misrepresentation argument.
Counsel representing defendant in his direct appeal also initially proceeded on the basis that the only argument available to defendant was the alleged excessiveness of the sentence. Only at the time of oral argument did appellate counsel assert that there should be further inquiry into the circumstances regarding defendant's attempt at withdrawal of his guilty plea.
We conclude that defendant should be permitted to further explore the effectiveness of his trial counsel and his prior appellate counsel during his direct appeal at an evidentiary hearing. Only once the issues are further developed in this matter can it be determined whether the performance of counsel either at trial or in the course of the direct appeal fell short of the Sixth Amendment's requirements.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.
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