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State v. Dunlap

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM DUNLAP, A/K/A MICHAEL WILLIAMS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-04-1275.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges Parker and Gilroy.

Defendant William Dunlap, a/k/a Michael Williams, appeals from an order entered on January 16, 2007 denying his petition for post-conviction relief (PCR).

On April 18, 2000, defendant pled guilty to one count of first degree aggravated manslaughter pursuant to a negotiated plea agreement. In his plea colloquy, defendant stated the factual basis as follows:

A: I hit Darnell Sturgis in the head with a frying pan and then strangled him. That was it. I would like to say sorry to his family.

Q: As a result of that, this gentleman died?

A: Yes.

Q: All right. At the time you were about your approximate weight that you are now?

A: Yes, just about.

Q: Which is what?

A: 235.

Q: And I would estimate you're around 6' 4", 6' 5"?

A: 6' 3".

Q: Six three. All right. Mr. Sturgis' build was?

A: Small.

On June 2, 2000, defendant was sentenced to a term of twenty-three years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant waived his right to direct appeal in his plea agreement. On December 26, 2000, however, just six months after he was sentenced, defendant filed a pro se PCR petition, arguing that (1) defense counsel was ineffective for failing "to investigate the case, subpoena witnesses and produce admissible evidence to support his defense theory;" and (2) the State "failed to prove beyond a reasonable doubt that defendant [had] knowingly and voluntarily waived his Miranda*fn1 rights." That petition was dismissed without prejudice on January 9, 2002 and defendant filed an amended verified petition on November 13, 2006. Although that application was out of time, R. 3:22-12, the trial court entertained the merits of the petition and denied it in the order entered on January 16, 2007, which is now the subject of this appeal.

In this appeal, defendant argues:

POINT ONE

NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL

A. Trial Counsel Was Ineffective In Failing To Properly Advise Defendant Of The Five Year Supervision Period Following His Release From Custody Pursuant To The No Early Release Act ("NERA")

B. Trial Counsel Was Ineffective In Not Moving For An Illegal Sentence Where NERA Was Imposed Without Either Notice To Defendant On The Ground Proposed Nor Was A Factual Basis Properly Elicited

POINT TWO

THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING TO ADDRESS ALL OF DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

POINT THREE

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL

POINT FOUR

THE COURT BELOW VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficiency so prejudiced his defense as to affect the outcome of the matter. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 48 (1984). Strickland requires a showing that counsel's errors were so deficient as to deprive the defendant of a fair trial. 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed. 2d at 693.

In determining whether counsel's performance was deficient, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 206, 80 L.Ed. 2d at 695. To rebut that presumption, a defendant must prove that he was prejudiced by demonstrating "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 2086, 80 L.Ed. 2d at 698. A reasonable probability was defined by the Court as that which is sufficient to undermine confidence in the outcome. Ibid. Counsel is deemed ineffective only in those "rare instances" that trial mistakes are of such magnitude "as to thwart the fundamental guaranty of [a] fair trial." State v. Dennis, 43 N.J. 418, 428 (1964).

Here, defendant argues that trial counsel was ineffective in failing to advise him that on a NERA sentence, he would be subject to five years parole supervision after his release. In State v. Johnson, 182 N.J. 232 (2005), the Supreme Court addressed this very issue. There, the Court held that being subject to NERA's mandatory period of parole supervision constituted a direct, penal consequence of defendant's plea to three counts of second-degree aggravated assault. Furthermore, because defendant was not informed about the consequences of being subject to NERA's fixed period of parole supervision, we hold that he is entitled to seek the vacation of his plea. [Id. at 241.]

The Court "reiterate[d] . . . that defendant must demonstrate how the omission of information about NERA materially affected his decision to plead guilty. To demonstrate a manifest injustice, defendant must show that the lack of information prejudiced him in making his decision to plead." Id. at 244. On the direct appeal, the Court was unable to determine from the record before it whether the defendant would have accepted the plea if he had been aware of the five-year period of parole supervision pursuant to NERA. Ibid.

In this PCR application, defendant had the opportunity to augment the record with a certification attesting that he would not have accepted the plea agreement if he had known about the five year parole supervision. Moreover, defendant did not submit a certification from defense counsel, stating that counsel did not advise defendant of the five year parole supervision required under NERA. Bare allegations are insufficient to demonstrate a prima facie claim of ineffective assistance of counsel.*fn2 State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Consequently, defendant has not made a prima facie case for ineffective assistance of counsel because he has not demonstrated that the outcome of this matter would have been different if he had been so advised, nor has he demonstrated that defense counsel's performance was deficient.

Defendant next argues that he was subjected to an illegal sentence because "the factual basis failed to satisfy the charge of aggravated manslaughter and . . . [he] was not afforded due process where no notice on the ground proposed by the State to seek the imposition of NERA was provided." Defendant is apparently claiming that his factual basis did not satisfy the elements of aggravated manslaughter. We disagree.

N.J.S.A. 2C:11-4(a)(1) defines manslaughter as follows:

Criminal homicide constitutes aggravated manslaughter when:

(1) the actor recklessly causes death under circumstances manifesting extreme indifference to human life.

"[A]ggravated manslaughter requires indifference as to whether or not the victim lived or died. If the risk of death is a probability, the crime is aggravated manslaughter; if the risk is a possibility, the crime is manslaughter." Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:11-4[2] (citing State v. Jenkins, 178 N.J. 347, 363-64 (2004); State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Saunders, 277 N.J. Super. 322 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995)). See also State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005) (stating that aggravated manslaughter requires a conscious disregard of the probability of causing death).

Aggravated manslaughter has been found under the following circumstances: where the defendant aimed a shotgun at an innocent victim and, without checking to see whether the gun was loaded, pulled the trigger, causing the victim's death, State v. Reed, 211 N.J. Super. 177, 183-84 (App. Div. 1986), certif. denied, 110 N.J. 508 (1988); where the defendant stabbed the victim in the abdomen, State v. Bowens, 108 N.J. 622, 637-38 (1987); and where the defendant intentionally struck the victim in the back of the head with a brick causing him to fall down a set of concrete steps, Jenkins, supra, 178 N.J. at 363-64. Here, where defendant candidly admitted that he struck the victim in the head with a frying pan and then strangled him, causing the victim's death, the defendant clearly manifested an extreme indifference to human life. See State v. Bakka, 176 N.J. 533, 545 (2003).

Defendant further argues that he did not receive sufficient notice regarding the NERA sentence and that defense counsel was ineffective for failing to move for an illegal sentence. We note that the plea form states on the first and second pages that the plea is subject to 85% parole ineligibility. Defendant not only signed the plea form, but he testified that his attorney read the form to him before he entered the plea.

Defendant's argument regarding the purportedly illegal sentence is equally without merit. R. 2:11-3(e)(2). Moreover, the issue was adjudicated in the trial court in July 2000 -- a month after he was sentenced -- and denied. Defendant failed to appeal; rather, he moved for reconsideration and that motion was denied on July 27, 2000. He failed to appeal the denial. Nevertheless, he moved to correct an illegal sentence again in March 2004, and that motion was denied. Again, he failed to appeal. The issue is, therefore, precluded from further adjudication in a PCR petition. R. 3:22-5.

We have carefully considered defendant's remaining arguments and find that they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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