June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MYZEL FRIERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 02-07-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Stern and Waugh.
Defendant pled guilty to an accusation charging robbery, N.J.S.A. 2C:15-1, in exchange for a recommended maximum sentence of eight years in the custody of the Commissioner of Corrections with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 The negotiated disposition also included the prosecutor's recommendation that the sentence be imposed concurrent to another sentence for a violation of probation in Camden County and for dismissal of "all remaining charges in Gloucester County."*fn2 Defendant was sentenced pursuant to a negotiated plea to the custody of the Commissioner of Corrections for eight years, with six years, nine months and twenty-two days to be served before parole eligibility under NERA. The sentence was made concurrent to the sentence imposed in Camden County. No period of parole supervision was embodied in the judgment, but there is no cross- appeal. We affirmed the judgment and sentence on the sentence oral argument calendar.
Defendant now appeals from the denial on July 18, 2006, of his petition for post-conviction relief (PCR). He argues that "the court erred in denying defendant's argument that trial counsel failed to fully explain the consequences of NERA and in failing to order a materiality hearing" and that it also "erred in failing to grant an evidentiary hearing as to defendant's claim of ineffective assistance of counsel."*fn3
The record reveals that, after initially being unable to enter a guilty plea, defendant accepted the negotiated disposition.*fn4 The defendant was examined under oath by the judge and expressly waived his right to indictment and trial by jury and agreed to plead guilty to an accusation. The defendant acknowledged that he was on medication at the time, but stated that he understood everything that was going on in the proceedings. He stated that he was pleading guilty because he was guilty, that no one forced him to plead guilty, and that he was "satisfied with the advice [his] attorney has given [him]."
He also indicated that he had reviewed the plea form and answered "all [the] questions truthfully," and that he was pleading guilty to a crime which had an exposure of twenty years in state prison.
In giving his factual basis for a plea, defendant indicated that he was "on certain substances at the time" of the offense,*fn5 but stated that it was his "purpose" "to ask the judge to accept the representations contained in [his] statement to the police and in the discovery." Defendant acknowledged the report that he had "a piece of wood" "to help accomplish the robbery" of a Mobil station in Woodbury and that the "piece of wood" was in the shape of a "rifle." However, defendant was unable to give a factual basis from his own recollection, and defense counsel stated "we are attempting to accommodate my client's request" but that "he knows that if he is not guilty he cannot and should not plead guilty"; "that if he chooses not to waive his right to an intoxication defense, then he shouldn't be doing any of this at all," and that "[i]f, on the other hand, he wants to waive his right to an intoxication defense, he has that option if he so chooses."
After a recess, the defendant was asked by his counsel if he understood that he "cannot plead guilty unless" he was "really guilty," to which he answered "yes." Thereupon, the following colloquy occurred:
Q: Do you understand that the Judge wasn't there. He didn't know what happened. I wasn't there. I don't know what happened. The Prosecutor wasn't there. She doesn't know what happened. We can only go with what you say and what's in the police reports; do you understand that?
Q: Now, is it your desire -- in other words, do you want me, as your lawyer, to try to help you to get this particular deal?
Q: All right. Now, do you understand that if you take a deal, if you plead guilty to something, you'd be giving up your constitutional right to have a trial? In this case, in front of a jury where the State has to prove your guilt beyond a reasonable doubt; do you understand that?
Q: And as part of that trial and as part of preparation for that trial, you'd be giving up the right to have us do an investigation plus request for the discovery. You'd be giving up the right to use certain defenses, like intoxication or maybe alibi or whatever defenses we might end [up] using; do you understand that?
Q: Now, just like you have the right to give up the right to a trial, you also have the right to give up the right to use these defense; do you understand that?
Q: Is that what you want to do here today?
Q: We discussed, in particular, the intoxication defense; is that correct?
Q: And after we discussed that intoxication defense both here and at other times, have you reached a decision as to whether or not you want to give up that right, or whether you'd like to use it at trial?
Q: What is your decision? What do you want to do?
A: Give it up.
Q: All right. Do you have any other questions about any of these things that we've been talking about?
Questioning thereafter was continued by defense counsel:
Q: You indicated that you were on some mental health medication; is that correct?
Q: Do you understand you could also have potentially, just like you might have potentially intoxication defenses, certain mental health defenses? Do you understand that?
Q: And do you understand that if you want to and go ahead with this deal, you would also be giving up the right to use those defenses? Do you understand that?
Q: And is that what you want to do?
Q: Also, you'd be giving up the right to have me file motions[.] And those could involve any one of a number of aspects of your case, including the statement that you gave to the police. In other words, I could try to keep out that statement we had talked about; is that correct?
A: Uh-huh. Yes.
Q: Do you want to give up all those rights?
Q: Do you want to proceed again here today with this particular plea?
In his petition defendant argues that he "was denied effective assistance when his attorney failed to conduct sufficient pre-trial investigation" and when counsel "did not accurately advise the petitioner before he pleaded guilty as to the penal consequences." He also asserted that "defense counsel was ineffective for failing to limit aggravating factors and failing to argue mitigating factors."*fn6
In light of the plea colloquy which we quoted at length and the plea form which defendant signed and acknowledged, we find no basis to disturb the conclusion of Judge John Tomasello that defendant was not denied effective assistance of counsel. Among other things the judge noted that "by pleading guilty to one second-degree, as opposed to facing three first degrees, with the possibility of running -- having a sixty-year sentence [with NERA]," counsel could not be deemed ineffective, and that the "plea was entered into knowingly, voluntarily and intelligently, based upon his understanding of what the penal consequences were." We also find no basis for the grant of an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (requiring an evidentiary hearing "to resolve ineffective-assistance-of- counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief and the facts supporting the claim are outside the trial record"). The claims not demonstrated by the record must be "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Here, there are none.
As the Supreme Court of the United States has made clear, the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which we follow in terms of interpreting the New Jersey Constitution, State v. Fritz, 105 N.J. 42 (1987), requires the defendant to show that there is a reasonable probability that but for the ineffective assistance of counsel he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985). Given the negotiated plea in this case, we have no hesitation in affirming the denial of the conviction for post-conviction relief.