On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-06-1203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Parrillo and Messano.
Defendant Warren Hall appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In exchange for the dismissal of six counts of an indictment charging first-degree kidnapping and various aggravated assault and weapons offenses and a recommended sentence of time served, defendant pled guilty to the amended third-degree crime of conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(1). Prior to entry of the guilty plea, a Wade*fn1 hearing had been completed whereupon the judge ruled that several witnesses were permitted to make in-court identification of defendant. Before this decision was rendered, the judge denied defense counsel's request for an adjournment to revise his trial strategy because co-defendant, Curtis Pearson, suddenly pleaded guilty. Following the court's Wade decision, counsel requested a brief recess to discuss whether defendant wanted to take the negotiated plea they had previously discussed, since plea negotiations terminated at the conclusion of the Wade hearing.
After a brief recess, defendant confirmed, under oath, that he understood the nature and consequences of his plea, and that he was pleading guilty voluntarily because he was, in fact, guilty. He also indicated, however, dissatisfaction with his trial attorney, who supposedly believed defendant would not succeed at trial and who did not go over the discovery with defendant "in any great detail." Rejecting defendant's plea twice, the trial judge responded, after having observed counsel during the Wade hearing, that, in his opinion, counsel adequately handled the matter, stating, "I say that [defense counsel] has walked [defendant] on water, to tell you the truth, to get a deal like that." Eventually, after further discussions with counsel, defendant represented that he wished to plead guilty and had no further questions of the court, the prosecutor or counsel. Defendant then admitted, under oath, to striking the victim, causing him temporary loss of vision, and conspiring with another in committing this crime.
At sentencing, during his allocution, defendant said he wanted to withdraw his plea although no motion to that effect had ever been made. In fact, defense counsel expressed surprise
-- "This is news to me" -- since he had just conversed with defendant for about twenty minutes, and defendant never mentioned any desire to withdraw his guilty plea. Counsel further explained that although the presentence report indicated that defendant wanted to consult with a different attorney, that attorney "specifically" informed trial counsel that he was not going to represent defendant. Lacking a formal application, the judge denied defendant's oral request for withdrawal, and, after permitting defendant to address the court a second and third time, sentenced defendant, in accordance with the plea agreement, to a jail term of 199 days time served, mandatory monetary penalties, and forfeiture of his public employment with the Asbury Park Fire Department.
Defendant subsequently moved to withdraw his guilty plea on the grounds that there was an insufficient factual basis for his plea and ineffective assistance of counsel. The judge denied the motion, reasoning:
In this particular case, [defendant] . . . had four different attorneys. [Counsel] is his fifth attorney. There is no question but that he was accorded proper representation. And I put on the record at that time that in light of the charges in the indictment against this defendant and the resulting plea offer that [trial counsel] secured from the Prosecutor's Office, I put on the record that [trial counsel] literally walked this defendant across water with regard to these charges and got him a time served recommendation which I gave to the defendant.
There is no question but that a review of the transcript indicates that there was a sufficient factual basis, and I so found at that time, for the entry of the guilty plea. Defendant appealed, and the matter was heard on our Excessive Sentencing Oral Argument (ESOA) calendar. We affirmed the judgment of conviction without prejudice to defendant's right to file a PCR petition based on the alleged ineffective assistance of counsel in respect to entry of defendant's guilty plea. Consequently, defendant filed a PCR petition, alleging ineffective assistance of counsel in that: (1) defendant was "essentially forced" to plead guilty by trial counsel's request for an adjournment to "formulate trial strategy"; (2) counsel conducted "very minimal investigation"; (3) counsel was unaware until sentencing that defendant wished to withdraw his guilty plea; and (4) the factual basis was insufficient to support the charge of conspiracy to commit aggravated assault.
After the hearing, the PCR judge denied defendant's petition, rejecting each of these contentions. As to the voluntary nature of the plea, the judge found that the trial judge twice rejected defendant's plea, and, both times, defendant "immediately told the court that he really did want to plead guilty to this particular matter[,]" and that he was, in fact, guilty of the crime for which he was entering the plea. The judge also found the factual basis to be adequate, noting that temporary disability, such as the loss of vision, constitutes significant bodily injury under N.J.S.A. 2C:12-1(b)(1).
With specific regard to the ineffective assistance of counsel claim for failing to move to withdraw defendant's guilty plea prior to sentencing, the judge found that defendant failed to demonstrate that (1) trial counsel was deficient for failing to make a motion when he was unaware that defendant wanted to withdraw his plea; and (2) were the motion filed, it would have been successful. As to the latter, the PCR court also noted the issue "may be moot because there was a later proceeding where he did move to set aside the plea." Finally, the PCR court found that there was nothing in the record to support defendant's contention that trial counsel was deficient for failure to investigate and prepare the case. Noting that trial counsel conducted extensive cross-examination ...