January 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN HALL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 during the Wade hearing, the judge found that counsel was, in fact, prepared. Thus, absent prima facie proof of deficient performance, the judge declined defendant's request for an evidentiary hearing.
On appeal, defendant argues that the PCR court erroneously denied his claims of ineffective assistance of counsel, and, further, that the denial of his earlier motion to withdraw the guilty plea was error. We disagree.
As to the latter, insofar as defendant challenges the July 27, 2001 denial of his motion to withdraw the guilty plea, the issue is presented for the first time on this appeal -- it was not raised in the PCR court -- and is, therefore, not reviewable here. State v. Arthur, 184 N.J. 307, 327 (2005). The matter is also procedurally barred since it could have been, but was not, raised on direct appeal. See R. 3:22-4.
As to the remaining issues, it is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced the outcome of the plea process. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 209-10 (1985); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test and do not warrant convening an evidentiary hearing.
First, concerning defendant's claim that he pled guilty because he thought trial counsel was not prepared, the record is devoid of any competent evidence to support such an impression or that defendant was coerced into pleading guilty. On the contrary, counsel rendered adequate assistance at the Wade hearing, as witnessed by the trial judge himself, and made his recommendation that defendant plead "in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990). On this score, counsel requested more time, not because he was unprepared, but to adjust his strategy in light of co-defendant's unexpected guilty plea.*fn2 Clearly, defendant's decision to plead guilty was due to the substantial benefit offered by the State rather than any misguided impression of counsel's preparedness. Moreover, defendant completed plea forms, which clearly informed him of the material aspects and consequences of his plea, State v. Crawley, 149 N.J. 310, 318 (1997), and made representations, under oath, as to the voluntary and knowing nature of his plea.
Besides being totally voluntary, defendant's plea was supported by an adequate factual basis. Simply put, defendant admitted striking the victim, causing the victim temporary loss of vision, and conspiring with another in the commission of the crime. Thus, defendant's factual basis contained every element of the crime of conspiracy to commit aggravated assault, pursuant to N.J.S.A. 2C:5-2 and 2C:12-1(b)(1). State v. Pena, 301 N.J. Super. 158, 162 (App. Div.), certif. denied, 151 N.J. 465 (1997).
Nor has defendant demonstrated that counsel was ineffective for failing to move to withdraw the guilty plea prior to sentencing. As noted, the presentence report simply indicates that defendant was considering withdrawing his plea and wanted to consult with his attorney. After some investigation, trial counsel discovered that he was not going to be substituted because defendant had not retained other counsel. Moreover, trial counsel and defendant had spent twenty minutes together prior to sentencing and defendant had never expressed his desire to withdraw his plea.
Moreover, defendant has failed to show prejudice -- namely that such a motion prior to sentence would have been granted. See State v. Cengiz, 241 N.J. Super. 482, 501 (App. Div.), certif. denied, 122 N.J. 402 (1990). This is especially so since the record is devoid of any evidence that defendant's plea was not knowingly and voluntarily entered.
The record is also barren of any competent proof that trial counsel failed to investigate and prepare for trial. The PCR court determined counsel was, in fact, prepared to try defendant's case, and we find no warrant for interference with that finding. Defendant, on the other hand, offers no more than bare assertions and conclusions, unsupported by the record, which simply do not suffice to establish the requisite showing. Thus, the court's rejection of defendant's request for an evidentiary hearing, and ultimate denial of the PCR petition, was proper. State v. Cummings, 321 N.J. Super. 154, 165-66 (App. Div.), certif. denied, 162 N.J. 199 (1999).