July 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BETTY BRITT A/K/A BETTY BROWN, BETTY BILAL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-01-0160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Cuff and Simonelli.
Defendant Betty Britt appeals from the order of May 22, 2006, denying her petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following arguments:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO [COUNSEL'S] MULTIPLE REPRESENTATION OF DEFENDANT AND HER CO-DEFENDANTS.
A. [COUNSEL'S] MULTIPLE REPRESENTATION WAS IMPROPER SINCE IT GAVE RISE TO A POTENTIAL CONFLICT OF INTEREST AND A SIGNIFICANT LIKELIHOOD OF PREJUDICE.
B. [COUNSEL'S] MULTIPLE REPRESENTATION WAS IMPROPER SINCE IT CAUSED ACTUAL PREJUDICE BY PREVENTING [COUNSEL] FROM INVESTIGATING A VIABLE DEFENSE.
POINT II THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO [COUNSEL'S] FAILURE TO RAISE A VIABLE DEFENSE.
POINT III THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO [COUNSEL'S] FAILURE TO FILE A MOTION TO SET ASIDE THE PLEA.
POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT V THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT FAILED TO ADVISE DEFENDANT OF [COUNSEL'S] MULTIPLE REPRESENTATION AND FAILED TO OBTAIN A WAIVER OF THAT REPRESENTATION DURING THE PLEA OR RESENTENCING.
POINT VI THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We reverse and remand for an evidentiary hearing. On December 12, 1997, defendant, her husband Kevin Bilal (Bilal), and Darron Thomas (Thomas) robbed a restaurant in Hackensack. Bilal, armed with an ice pick and handgun, and defendant entered the restaurant. Bilal threatened the owner with the ice pick and gun. Thomas, who had previously worked at the restaurant, acted as the lookout. Defendants stole money and property, including the victim's car.
Police apprehended defendant shortly after the robbery. After receiving her Miranda*fn1 rights, defendant gave a voluntary statement admitting that she and her co-defendants planned the robbery; she knew Bilal and Thomas were going to rob the restaurant; she knew that Bilal had a gun; and she knew that Bilal used an ice pick and the gun during the robbery.
Defendant also admitted she had a box cutter in her pocket, and would have used it if necessary.
Defendant and her co-defendants were charged with first degree armed robbery, contrary to N.J.S.A. 2C:15-1a(1); third degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4d; theft of moveable property (a motor vehicle), contrary to N.J.S.A. 2C:20-3a; and first degree kidnapping, contrary to N.J.S.A. 2C:13-1b(1). On January 27, 1998, defendant, Bilal and Thomas, all represented by the same Public Defender, Jennifer Axelrod, pled guilty to first degree robbery in Bergen County's Pre-Indictment Plea (PIP) court in exchange for the State's recommendation of a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7a(3) (NERA).
At the plea hearing on January 27, 1998, defendant acknowledged that she understood the charge and her rights; that she voluntarily signed and had no questions about the plea form; that she accepted the terms of the plea agreement; that she fully understood her right to refuse to plead and proceed to trial; that she had spoken to Axelrod, who explained her rights and answered her questions "very accurately"; that she had enough time to go over the case with Axelrod; and that she was satisfied with Axelrod's services. Defendant also described in detail the circumstances surrounding the crime and the extent of her participation.
On March 6, 1998, defendant wrote to the Office of the Public Defender stating:
During a telephone conversation I had with Ms. Axelrod during the month of January, she stated that she would be working on getting Mr. Thomas a lower plea due to his record. I believe this is an obvious conflict of interest.
Deputy Public Defender, Louis Acevedo, responded as follows:
In discussing your concerns with [defendant's attorney], I am satisfied that she reasonably believed, and continues to believe, that her representation of you, [Bilal] and [Thomas] will not adversely affect her relationship with you, or responsibility to, either of you. I am further satisfied that she discussed the facts of the cases, potential consequences and the plea offer in a reasonably objective manner, so that each of you understood the options available. After having done so, you each consent to her representing you and, as a result, you each accepted the plea offer made by the state.
Acevedo also advised defendant that she was mistaken that Axelrod sought to obtain a lower plea for Thomas due to his record, because Thomas had no prior criminal history. On March 13, 1998, defendant filed a motion to withdraw her guilty plea. In her supporting affidavit, defendant stated she entered a guilty plea because she "was not aware of the issue, and  was misinformed"; she "was not given proper legal [advice] by [her] attorney"; and the "fear of a greater sentence was used to coerce [her] into the pending plea." Defendant did not mention a conflict of interest.
In a March 19, 1998 letter to Acevedo, defendant again expressed her belief that there "still appears to be a conflict of interest" with regard to Thomas receiving a lower plea or sentence.*fn2 Defendant also stated:
I am sending a copy of this letter to Judge [Bruce] Gaeta to ask for an adjournment on sentencing until I can see [J.A.] and discuss my case in detail. I must be convinced that a conflict of interest did not exist and that she has represented me to the best of her ability.
It is unclear from the record whether or not defendant met with Axelrod. However, in a letter to Judge Gaeta, dated April 13, 1998, defendant did not mention a conflict of interest. She merely requested a lesser sentence than that in the plea agreement, explaining that her self-destructive tendencies and physical abuse by Bilal caused her behavior. A report from defendant's treating psychotherapist, which defendant submitted to the judge to support a reduced sentence, also indicated that defendant engaged in destructive relationships and was subjected to battering by Bilal.
Defendant appeared for sentencing on April 17, 1998, represented by Axelrod. Defendant withdrew her motion to withdraw her guilty plea and never mentioned a conflict. Relying upon the psychotherapist's report, Axelrod argued for a reduced sentence. Judge Gaeta rejected the argument and imposed the agreed upon sentence. The judge considered defendant's psychological problems, the physical abuse, defendant's twelve indictable convictions,*fn3 including one for robbery, and the fact that she committed the crime while on parole.
Defendant filed a motion for reconsideration of her sentence. She did not mention a conflict. Judge Gaeta denied the motion and entered an amended judgment of conviction reflecting the imposition of a five-year period of parole supervision. Defendant appealed her sentence. We affirmed. State v. Britt, No. A-6542-97T4 (App. Div. February 17, 2000), certif. denied, 167 N.J. 634 (2001).
Defendant then filed the PCR petition, contending she received ineffective assistance of counsel:
because [Axelrod] represented both [Bilal] and [Thomas] at the plea and sentencing hearings. Counsel did not seek [defendant's] consent to represent both her co-defendants nor did the trial judge ask [defendant] during the plea hearing whether she had consented to [Axelrod's] representation of [Bilal] and [Thomas] [Axelrod's] representation of [defendant] as well as [her] co-defendants constituted an improper conflict of interest.
Defendant also claimed she was deprived of effective assistance of counsel because Axelrod failed to investigate possible defenses, including Battered Woman's Syndrome (BWS) or some type of mental disability.*fn4
The judge denied the petition without an evidentiary hearing, concluding that defendant did not satisfy the first prong of the Strickland*fn5 test. The judge gave great weight to Judge Gaeta's findings at the plea and sentencing hearings, and concluded that, in light of defendant's lengthy criminal history, which predated Bilal's alleged abuse, defendant had not shown that the BWS was a viable defense. The judge emphasized the nature of the proceedings before Judge Gaeta, and that defendant knew of the multiple representation at the time of sentencing. The judge also noted the absence of any authority involving multiple representation in PIP court.
"The ethical duties an attorney owes a client attach at the outset of their relationship." State v. Bellucci, 81 N.J. 531, 539 (1980). "[A] defendant's right to counsel mandates that 'the attorney's position as an advocate for his client should not be compromised before, during or after trial.'" Ibid. (quoting State v. Land, 73 N.J. 24, 29 (1977) (emphasis added)).
The 'inherent difficulty' referred to in Land is as present at the pretrial stage as it is when the joint representation occurs at trial. The pervasive practice of plea bargaining highlights the importance of the pretrial period in our criminal process. . . . To effectively advise his client as to what plea should be entered, defense counsel must be free to explore all possibilities, including pretrial negotiations.
[Id. at 540 (citations omitted).]
"Initially, it is the attorney's obligation when he first meets with his prospective clients to advise them of possible conflicts and of their constitutional rights." Land, supra, 73 N.J. at 32. Also:
In all cases where an attorney represents more than one defendant, the trial court ought advise the parties of their constitutional rights. This should be accomplished as soon as the trial court is alerted to the existence of multiple representation and feasibly may bring the matter to the attention of the defendants and counsel. The defendants may waive those rights, but the trial judge must make certain on the record that the defendants understandably and knowingly have decided to forego separate counsel.
[Id. at 33; see also State v. Bell, 90 N.J. 163, 173 (1982).]
Here, the record, albeit not the plea or sentencing transcripts, indicates that Axelrod discussed the potential conflict with defendant. However, Judge Gaeta did not question defendant about it on the record. Although the record is clear that defendant was well aware of the potential conflict prior to sentencing, and elected to withdraw her motion to withdraw her guilty plea and proceed with the plea, the record does no more than suggest a waiver of the conflict. Having failed to develop a record that defendant understandably and knowingly decided to forego separate counsel, an evidentiary hearing must be held to further explore this issue.
Reversed and remanded for an evidentiary hearing.