February 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AKEEM WILDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 22, 2009
Before Judges Fisher and C.L. Miniman.
Defendant Akeem Wilder appeals from the August 3, 2007, denial of his petition for post-conviction relief (PCR) based on ineffective assistance of counsel. Judge Marilyn C. Clark concluded that no evidentiary hearing was required. We affirm.
Defendant was charged in a seven-count indictment with various third-degree drug offenses allegedly committed on October 11, 2003. On April 28, 2004, defendant pled guilty to distribution of cocaine within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7, 2C:35-5(a), and 2C:2-6. He was sentenced to 364 days in the Passaic County Jail followed by three years of probation with conditions. Various fines and assessments were also imposed. He did not appeal from the resulting Judgment of Conviction and Imposition of Sentence.
Defendant was indicted on May 18, 2006, and charged with resisting arrest, N.J.S.A. 2C:29-2(a)(3), and aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a). It is not clear whether this occurred in the jail or whether defendant had been released on probation. Defendant was again indicted on June 15, 2006, and charged with unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); resisting arrest, N.J.S.A. 2C:29-2(a)(2); and certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). Needless to say, defendant was charged with violating the terms of his probation on November 9, 2006, for being charged with additional crimes and for failing to comply with the terms of probation.
Defendant filed his first PCR petition on February 23, 2007, alleging ineffective assistance of counsel. He asserted that he had been coerced by his counsel into accepting the plea agreement and that he was under the impression that he would not receive a felony record because he was only pleading guilty as an accomplice to possession of cocaine. He claimed that he had had no experience with legal matters and trusted his attorney, who told him he would be convicted if he went to trial and faced a five-year prison term, three years without parole. He stated that his attorney told him that he was only pleading to a "non-felony possession charge" and that the felonies would all be dismissed. As a consequence, he claimed that he understood at the time of the plea that his record would be clean when he completed probation.
He also claimed that his attorney had not provided him with any discovery and did not review the State's discovery with him. Further, he asserted that his attorney failed to investigate Nicole Kelly, who defendant alleged was willing to sign an affidavit averring that defendant was innocent and explaining the basis for her knowledge. Defendant claimed that his attorney stated he "would refuse such an affidavit, and that it would only be admissible at trial, and that a jury would not believe it because [defendant] was black and that I would probably receive additional charges of witness tampering."
Judge Clark heard argument on the PCR application on August 2, 2007, and, in placing her decision on the record, reviewed the LR-27 plea form, supplemental plea form for drug offenses, and relevant portions of the April 28, 2004, plea hearing. The plea form indicated that defendant was pleading guilty to third-degree distribution of cocaine within 1000 feet of a school and he represented that he knew what the charges meant. He represented that no promises had been made to him other than ones reflected in the plea form and that no threats had been made to cause him to plead guilty. He indicated that he was satisfied with the advice he had received from his lawyer. He also indicated that he understood that the crime to which he was pleading guilty carried a presumption of imprisonment. Finally, he indicated he understood that he would be required to pay a $1000 Drug Enforcement and Demand Reduction penalty.
The judge then reviewed the voir dire of the defendant at the plea. Defense counsel reviewed the plea form with defendant, who confirmed that he had answered the questions and initialed the form. Defendant testified that no one forced him to enter the plea and that he did so freely and voluntarily. Counsel then examined defendant with respect to the basis for the plea and he testified that on October 11, 2003, at about 2:00 p.m. he distributed crack cocaine to a Michael Hoffman.
Judge Clark also observed that, at the plea hearing, defendant acknowledged he sold cocaine to an individual who drove up in a car that day and that he was within 1000 feet of Roberto Clemente Elementary School when he did so. He also told the judge that he knew it was illegal to sell cocaine. He testified that he was pleading guilty voluntarily, that he had enough time to go over everything with his attorney and that he was satisfied with his services. The judge explained that defendant would be sentenced to probation for up to five years and if he violated his probation he would be sent to prison for up to five years, which he acknowledged. The judge then asked defense counsel if he was satisfied that defendant was pleading guilty freely and voluntarily and the attorney replied that he was. At sentencing, defendant's counsel represented that this was defendant's first indictable offense and defendant then apologized to the court "for the charge selling drugs."
After this review, Judge Clark placed her decision on the record:
With respect to the defendant's assertion that he had no idea that he would have a criminal record, he put on the plea form, he acknowledge[d] going over the plea form with his attorney. [W]e refer to this as being his first adult conviction repeatedly during the transcript.
He indicates that he thought he was pleading guilty to an accomplice to possess.
[T]here's multiple references to selling cocaine, which he acknowledged, and that he was pleading guilty to distribution of cocaine and being sentenced to distribution of cocaine.
As far as his knowledge of the law or legal process, he had many appearances in the juvenile court with several adjudications of guilt, including finally one year in Yarborough. So while he certainly not a lawyer, and he's still very young, in no way do I think he has no knowledge of the process.
On the plea transcript he indicates that he's satisfied with the attorney's services [and] that he had sufficient time to review it with him. His attorney got the PIC . . . back for him, which was correct, obviously, if he had been willing to take it originally. He admitted selling cocaine.
[H]e indicated he was satisfied with [counsel's] services.
I find no credibility whatsoever in this bald assertion that [counsel] would not show him discovery and would not investigate a witness. He indicated he was satisfied with his services. He got a very fair plea offer given his history. I just find no evidence whatsoever in the record of ineffective assistance of counsel. I believe the plea is fair. I believe he understood exactly what he was pleading to. And I'm going to deny the [PCR] motion.
This appeal followed and defendant raises a single issue on appeal:
THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.
We disagree. Not every PCR petitioner is entitled to an evidentiary hearing.
The trial court may grant an evidentiary hearing on a PCR petition if the defendant has established a prima facie case of ineffective assistance of counsel. State v. Marshall, 148 N.J. 89, 157 (citing [State v.] Preciose, 129 N.J. [451,] 462 [(1992)]), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). In order to establish a prima facie case, defendant must demonstrate a reasonable likelihood that he will ultimately succeed on the merits. Marshall, supra, 148 N.J. at 157. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Id. at 158 (citations omitted).
In other words, defendant "must do more than make bald assertions that he was denied effective assistance of counsel[;] [h]e must allege facts sufficient to demonstrate counsel's alleged substandard performance."
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then can a judge determine whether a prima facie case has been made.
[State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005).]
Here, defendant merely contradicted his sworn testimony at the plea hearing and his unsworn statements at sentencing. He offered no corroborative evidence. Furthermore, he did not submit an affidavit or certification from Kelly setting forth the testimony she would have given to exonerate defendant, as he was required to do. Cummings, supra, 321 N.J. Super. at 170. As Judge Clark correctly found, defendant did not make out a prima facie claim of ineffective assistance of counsel and the judge was not required on these facts to conduct an evidentiary hearing.
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