July 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LATREND HOOD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-03-0587 and 03-04-0681.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Parker and Gilroy.
Defendant appeals from the August 31, 2006 order of the Law Division, which denied his petition for post-conviction relief (PCR). We affirm.
On March 27, 2003 and April 8, 2003, defendant was charged under Indictment Nos. 03-03-0587 and 03-04-0681 with ten counts of having committed various criminal offenses. On June 20, 2003, the trial court denied defendant's motion to suppress evidence. On the same day, defendant entered a negotiated plea.
On Indictment No. 03-03-0587, defendant pled guilty to fourth-degree resisting arrest (Count One). On Indictment No. 03-04-0681, defendant pled guilty to third-degree possession of cocaine with intent to distribute (Count Two) and to second-degree possession of a weapon by a previously convicted person (Count Seven). The State agreed to dismiss the remaining counts of both indictments and to recommend an aggregate custodial sentence of thirteen years of imprisonment, with eight years and nine months of parole ineligibility. The plea was without prejudice to defendant filing an appeal from the denial of his suppression motion.
On October 3, 2003, the court denied defendant's motion to withdraw his guilty pleas. On Indictment No. 03-04-0681, defendant was sentenced on his conviction of possession of cocaine with intent to distribute to a mandatory extended term of eight years of imprisonment with a three-year, nine-month period of parole ineligibility; and on his conviction of possession of a weapon by a previously convicted person, defendant was sentenced to a consecutive term of five years of imprisonment, with a five-year period of parole ineligibility. On Indictment No. 03-03-0587, defendant was sentenced on his conviction of resisting arrest to eighteen months of imprisonment, to run concurrent with the sentence imposed under Indictment No. 03-04-0681. Pursuant to the terms of the plea agreement, the aggregate custodial sentence was thirteen years, with a period of parole ineligibility of eight years and nine months, and all other charges under the two indictments were dismissed. All appropriate fines and penalties were imposed, as well as a two-year suspension of defendant's driving privileges.
On direct appeal, defendant argued:
POINT I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE BECAUSE THE POLICE CONDUCTED AN ILLEGAL SEARCH.
A. THE SEARCH OF THE INTERIOR OF DEFENDANT'S AUTOMOBILE WAS UNLAWFUL BECAUSE THERE WAS NO PROBABLE CAUSE FOR A WARRANTLESS SEARCH.
B. THE AUTOMOBILE EXCEPTION TO WARRANTLESS SEARCHES FAILS TO APPLY IN THIS CASE.
C. THE PAT DOWN OF DEFENDANT'S PERSON WAS UNLAWFUL.
D. THE WARRANTLESS SEARCH MAY NOT BE CONSTRUED AS A PROTECTIVE SEARCH INCIDENT TO THE INVESTIGATIVE STOP.
E. THE WARRANTLESS SEARCH WAS NOT INCIDENT TO AN ARREST.
POINT II. THE JUDGMENT OF CONVICTION WITH REGARD TO INDICTMENT NO. 03-03-0587 SHOULD BE VACATED AND DEFENDANT ALLOWED TO WITHDRAW HIS GUILTY PLEA BECAUSE IT LACKED AN ADEQUATE FACTUAL BASIS.
On March 24, 2005, we affirmed the convictions and sentences imposed. State v. Hood, No. A-2143-03 (App. Div. March 24, 2005). On July 11, 2005, the Supreme Court denied defendant's petition for certification. State v. Hood, 185 N.J. 36 (2005). On October 5, 2005, defendant filed a pro se petition for PCR, raising the following issues:
POINT I. TRIAL COURT ABROGATED [ITS] RESPONSIBILITIES BOTH [STATUTORILY] AND [PROCEDURALLY] IN IMPOSING SENTENCES ON (COUNT TWO) POSSESSION WITH INTENT TO DISTRIBUTE COCAINE AND (COUNT SEVEN) POSSESSION OF A WEAPON BY A CONVICTED PERSON, OF INDICTMENT NO[.] 03-04-0681C, WITHOUT FIRST INQUIRING FROM THE DEFENDANT AS TO THE LEGALISTIC EXPLANATION OF THE PLEA, THE LEVEL OF REPRESENTATION, WHETHER HE WAS AWARE OF THE ENTIRE CONSEQUENCES OF THE PLEA, CONTRARY TO PRIOR DECISIONS AND THE U.S. CONSTITUTION AMENDMENT FOURTEEN.
POINT II. TRIAL COURT FAILED TO EXPLAIN THE BALANCING PROCESS IT EMPLOYED AND FAILED TO INDICATE SEPARATE AGGRAVATING FACTORS IN APPLYING THE MANDATORY BASE TERM, THE MAXIMUM TERM AND THAN THE EXTENDED SENTENCE, WHEREBY TRIPLE COUNTING AGGRAVATING FACTORS IN IMPOSING THE TOTAL TERM IN VIOLATION OF THE U.S. CONSTITUTION AMENDMENT FIVE, SIX AND FOURTEEN.
POINT III. TRIAL COURT DETERMINED AGGRAVATING FACTORS NOT FOUND BY A JURY, NOT CONSENTED TO, NOR STIPULATED TO, BY THE DEFENDANT PRIOR TO IMPOSING A SENTENCE OUTSIDE THE PRESUMPTIVE RANGE AND IN IMPOSING AN EXTENDED[-]TERM SENTENCE IN VIOLATION OF THE U.S. CONSTITUTION AMENDMENT FIVE, SIX, AND FOURTEEN.
POINT IV. DEFENDANT[']S REPRESENTATION THROUGHOUT THE PRIOR PROCEEDINGS FELL FAR BELOW ESTABLISHED STANDARDS SET BY THE UNITED STATES SUPREME COURT, CREATED A MANIFEST INJUSTICE SITUATION IN NOT RAISING THE ABOVE PARAGON OF ERRORS IN VIOLATION OF THE U.S. CONSTITUTION AMENDMENT SIX, AND FOURTEEN.
On June 19, 2006, assigned counsel filed a supplemental brief, arguing that defendant was denied effective assistance of trial counsel asserting: 1) counsel had failed to challenge the trial court's acceptance of defendant's guilty pleas without a clear waiver of his right against self-incrimination and in disregard of the procedural requirements of Rule 3:9-2; and 2) counsel had failed to argue on the motion to suppress evidence that the warrantless search of the automobile was conducted without defendant's consent. On August 18, 2006, the trial court conducted a hearing on defendant's PCR petition. At the outset of the hearing, assigned counsel informed the trial judge that defendant was not present and that counsel consented to the court proceeding without defendant's presence. Having reviewed the briefs filed, the trial court agreed, determining that the issues were "purely legal" in nature and did not require an evidentiary hearing. Following argument on the petition, the trial court denied the application. A confirming order was entered that day.
In this appeal, defendant argues:
POINT I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIRLY CONDUCTED POST-CONVICTION RELIEF HEARING.
A. THE COURT ABUSED ITS DISCRETION BY ACCEPTING DEFENSE COUNSEL'S "WAIVER" OF DEFENDANT'S PRESENCE.
B. THE DEFENDANT WAS DENIED THE "OPPORTUNITY TO SPEAK ON HIS OWN BEHALF" IN POST-CONVICTION RELIEF.
POINT II. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND POST-CONVICTION RELIEF COUNSEL.
POINT III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We have considered defendant's arguments in light of the record, the briefs and applicable law. We are satisfied that all of them are without merit. Nevertheless, we add the following comments.
Appellate review of a decision for PCR is based on the findings and conclusions of the trial court. R. 3:22-11. While we afford deference to a trial court's factfindings when supported by adequate, substantial and credible evidence, we are not bound by, and give no deference to, the trial court's legal conclusions. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
In Point I, defendant argues that the trial court erred in proceeding to hear his petition for PCR without ensuring his presence at the hearing or in the alternative, confirming that he had voluntarily waived his right to be present. Defendant contends that the trial court's actions in proceeding to hear his petition without him present denied him the opportunity "to speak on his own behalf." Although defendant's appellate brief does not contain any proffers of what defendant would have stated or testified to at the PCR hearing, defendant asserts that as a matter of law, the court's "conduct constituted a gross abuse of discretion and deprived the proceeding of the integrity necessary to afford the defendant a fundamentally fair post-conviction relief hearing." We disagree.
Absent a need for an evidentiary hearing, a defendant's presence at a PCR hearing is not mandatory, but rather, rests in the trial court's discretion. R. 3:22-10. However, a defendant is entitled to be present when an evidentiary hearing is required to resolve an issue of material fact within the defendant's personal knowledge. Ibid.; see also State v. Flores, 228 N.J. Super. 586 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
In support of his argument that the trial judge erred as a matter of law in proceeding with the hearing without him present, defendant quotes State v. Rue, 175 N.J. 1, 11 (2002) for the principle that a defendant at a PCR hearing "has a right to be 'given an opportunity to speak on his own behalf.'" That part of the sentence quoted from Rue is taken out of context, and does not stand for the principle that every defendant has a constitutional right to speak at a PCR hearing. Rather, the complete sentence in Rue is: "Rue was then given an opportunity to speak on his own behalf." The sentence, when placed in context of the procedural history stated by the Court, only refers to the fact that the trial court had exercised its discretion and permitted Rue to speak at the PCR proceeding, not that Rue had a constitutional right to speak.
Moreover, defendant was represented by counsel, who was required to present all arguments, not only his own, but also those contained in defendant's pro se brief. See R. 3:22-6(d) (requiring assigned counsel to "advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit"). Once counsel was assigned to represent defendant, defendant was not entitled to address legal arguments to the court without first being granted leave from the court to act as co-counsel. State v. Roth, 289 N.J. Super. 152, 165-66 (App. Div.), certif. denied, 146 N.J. 68 (1996). Such "hybrid representation" is disfavored and is to be "discouraged." State v. Figueroa, 186 N.J. 589, 595 (2006). Accordingly, because we agree with the trial judge that the arguments raised by defendant in his pro se brief, and by assigned counsel in his supplemental brief, were issues not requiring an evidentiary hearing, we perceive no abuse of discretion in the judge's decision to proceed with the PCR hearing without defendant present.*fn1
Defendant argues in Points II and III that he was denied effective assistance of trial counsel and PCR counsel. Defendant contends that counsel "failed to call him as a witness, thereby undermining the defense presented during the [suppression] hearing and abrogating his expressed desire to testify." Defendant asserts that PCR counsel failed to challenge the legality of the "8 year base extended term imposed on his plea to possession of cocaine with the intent to distribute on count two of Indictment No. 03-04-0681 and by ignoring the sentencing issues presented in his post-conviction relief petition."
The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination of whether defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn2 State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey).
For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 294 (2006)). In assessing counsel's representation, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95.
To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).
Defendant argues that he was denied effective assistance of trial counsel, by counsel failing to call him as a witness at the suppression hearing. This argument lacks merit. A review of defendant's pro se PCR brief, and the brief submitted by assigned counsel, discloses that this issue was never raised in the trial court as required by Rule 3:22-8. It was only during oral argument when PCR counsel argued without supporting evidence, by affidavit or otherwise, that defendant "felt as though if he had taken the stand, perhaps, his application would have been viable."
The trial court denied that part of defendant's claim of ineffective assistance of counsel, determining that defendant had failed to "demonstrate that counsel was inadequate in that proceeding" and that no evidence had been presented demonstrating that had defendant taken the stand the court would have ruled differently on the motion to suppress. Because the issue was not properly briefed, nor supported by affidavits or other evidence showing that trial counsel's acts or omissions rendered him ineffective under the Strickland standard, we perceive no error in the trial court's denial of defendant's claim of ineffective assistance of trial counsel. Allegro, supra, 193 N.J. 366-67.
Defendant next contends that he was denied effective assistance of PCR counsel by counsel not challenging the sentence imposed on his conviction for possession of cocaine with intent to distribute. Defendant contends that the sentence was illegal because it exceeded the then-existing seven-year presumptive extended-term sentence for a crime of the third-degree based on the trial court's findings of aggravating sentencing factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), citing State v. Natale, 184 N.J. 458 (2005). We conclude that this argument is also without merit.
In Natale, the Court held "that a sentence above the then-presumptive statutory term based solely on a judicial finding of aggravated factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive term based on the finding of aggravating factors, other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487. As a result of the "new rule of law," the Court limited the extent of its retroactive application. Id. at 493-94. The Court determined that pipeline retroactivity, that is, "applying our holding to defendants with cases on direct appeal as of the date of this decision [August 2, 2005] and to those defendants who raise Blakely claims at trial or on direct appeal," id. at 494, "best balances the principles of fairness and repose." Ibid.
The phrase "on direct appeal" means "in any case still on direct appeal at the time [the] new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005). Pipeline retroactivity, contrary to full retroactivity, does "not apply to those defendants who had exhausted all avenues of direct relief at the time [the decision] was decided." State v. Knight, 145 N.J. 233, 258 (1996); see also State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001). Here, defendant had filed a direct appeal from his judgment of convictions and did not challenge his sentences. Because defendant's direct appeal had been concluded prior to the Court's decision in Natale, this case does not fall within the ambit of pipeline retroactivity of the Natale decision.
Lastly, defendant argues that he was denied effective assistance of PCR counsel, because counsel ignored the other sentencing issues he had raised in his pro se PCR brief, that is, the trial court: 1) sentenced him without ensuring that he understood the nature of the charges and the consequences of the pleas; and 2) failed to explain how it balanced the aggravating and mitigating sentencing factors. We have reviewed these arguments in light of the record and determine that they are meritless. R. 2:11-3(e)(2).
Defendant's argument, pertaining to the trial court's acceptance of his pleas, was addressed at the PCR hearing and rejected. Our review of the transcript of the plea hearing of June 20, 2003, and the plea agreement signed by defendant that day, discloses that: defendant fully understood the nature of the plea; he was not coerced into pleading guilty; and he admitted committing the acts to which he pled guilty. As to that part of defendant's argument pertaining to the trial judge not properly balancing the aggravating and mitigating sentencing factors, we conclude that that argument is barred by Rule 3:22-4.