February 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMION HEDGESPETH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-05-0994.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern and Payne.
Defendant, Damion Hedgespeth, appeals from the denial of his petition for post-conviction relief (PCR) following an extensive evidentiary hearing. On appeal, he raises the following issues for our consideration:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE DEFENDANT ESTABLISHED A "REASONABLE PROBABILITY" THAT A DIFFERENT FINAL RESULT WOULD HAVE BEEN REACHED HAD DEFENSE COUNSEL FILED A PRETRIAL MOTION FOR A WADE HEARING.
THE DEFENDANT ESTABLISHED A REASONABLE PROBABILITY THAT HE DID NOT KNOW ABOUT OR UNDERSTAND THE MANDATORY 5 YEAR NERA PERIOD OF PAROLE SUPERVISION.
THE IMPOSITION OF THE 85% NERA PERIOD OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTIONS FOR FIRST DEGREE ROBBERY ON COUNTS ONE, TWO AND THREE, WAS ILLEGAL BECAUSE THE CHARACTER OF THE INOPERABLE HANDGUN AS A DEADLY WEAPON BLUNT INSTRUMENT WAS NOT CONCEDED TO BY THE DEFENDANT AND WAS NOT ESTABLISHED IN THE FACTUAL BASIS FOR THE PLEAS THAT WERE ACCEPTED BY THE TRIAL COURT.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF.
Evidence suggests that, on November 23, 1999, defendant, along with co-defendant, Andrew Spring, committed three armed robberies within approximately one hour in the vicinity of Journal Square in Jersey City. The first two victims were pistol whipped and sustained bodily injuries. The police, summoned by a bystander, arrived during the course of the third robbery. Spring was immediately apprehended; defendant was arrested following a chase, during which he pointed a gun at the pursuing officer. Although the gun was not in defendant's possession at the time of his arrest, a handgun was found in a dumpster along the route of defendant's flight. Defendant was taken into custody and identified in connection with at least two of the robberies. With respect to the first, he was identified by a witness, Osana Farjian, in a show-up conducted while defendant was in custody, shortly after the offense occurred. It is unclear whether or how he was identified in connection with the second robbery. However, the second victim's wallet was found in defendant's possession upon arrest. The third victim identified defendant as a perpetrator of the third robbery, shortly after the event. Victims and witnesses consistently reported that defendant was taller than Spring and that he wore light clothing, whereas Spring's clothing was dark in color. With the exception of Farjian, all persons who gave statements and the police identified defendant as the person wielding the gun.
Following indictment on numerous charges, on the day of trial, defendant pled guilty to three counts of armed robbery, N.J.S.A. 2C:15-1, upon an offer of three concurrent terms of seventeen years in custody, subject to the Graves Act, N.J.S.A. 2C:43-6c, and the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In the factual statement given by defendant in support of his plea to count one of the indictment, defendant admitted that he and Spring had displayed an inoperable handgun to victim Josefa Bagares in order to commit a robbery, and that during the course of the robbery she was injured when "[h]er face was hit into the ground." Approximately six dollars were taken from Bagares. In further inquiry as to whether the injury satisfied NERA's requirement of "serious bodily injury," defense counsel stipulated that both of the victim's occipital orbits were fractured, and that the fractures satisfied the statute's definitional provisions.
In connection with count two, defendant admitted that he and Spring, while armed with the same weapon, confronted victim Harripers Ranjit, striking him in the face with the gun and knocking out an unspecified number of teeth. Again, defendant admitted that the assault occurred for the purpose of committing a robbery, and that money was taken from the victim. Defendant acknowledged that the victim's wallet was found in defendant's possession upon his arrest. Defense counsel stipulated that the injuries to the victim constituted serious bodily injury that would subject defendant to NERA.
With respect to count three, defendant admitted that, while still armed, he and Spring encountered victim Chinton Parikh and demanded money from him while threatening the use of the gun. Defendant denied that either man had utilized the gun to strike Parikh, but admitted that the victim's wallet had been taken "by the use of force with the weapon."
Although the subject was not addressed in open court, in the plea form, defendant indicated that he understood that, pursuant to NERA, he would be subject to a mandatory five-year period of parole ineligibility and, in that connection, he acknowledged that: if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed.
A review of defendant's plea form also discloses that he acknowledged that he understood that his conduct subjected him to the parole ineligibility provisions of the Graves Act, but that a greater period of parole ineligibility was provided by NERA.
Defendant moved before the trial court to retract his guilty pleas, claiming ineffective assistance of trial counsel, who allegedly provided poor advice in recommending that he plead guilty in response to the State's offer and allegedly manipulated him into accepting the plea deal while he was on antidepressants in jail as the result of a suicide attempt. Defendant also claimed that, as the result of his emotional state at the time that he agreed to plead guilty, he was not fully aware of the consequences of his plea. Defendant's motion was denied. At sentencing, the trial judge imposed the bargained-for seventeen-year sentence, subject to NERA, finding aggravating factors two (harm to the victims), nine (need for deterrence in light of defendant's prior criminal record), and eleven (the need to impose a custodial sentence to offset the perception that a lesser non-custodial sentence would constitute the cost of doing business). N.J.S.A. 2C:44-1a(2), (9) and (11). No mitigating factors were found to exist. N.J.S.A. 2C:44-1b.
Following an unsuccessful appeal of his sentence to us, which we heard on an Excessive Sentence Oral Argument calendar, in which defendant argued that he was not properly informed of the consequences of his plea and that his sentence was excessive see State v. Hedgespeth, Docket No. A-4246-02T4 (June 9, 2004), defendant filed a pro se PCR petition, which was later supplemented by counsel.
A hearing was held in the matter on January 8, January 12 and February 15, 2007. Following the hearing, the motion judge issued a written opinion denying relief. In his petition for PCR, defendant argued that (1) trial counsel was ineffective in failing to move for a Wade*fn1 hearing, in not seeking severance from co-defendant Spring, in insufficiently preparing for trial, in not advising defendant of the penal consequences of NERA, and in conceding that NERA was applicable to defendant's sentence, when the record did not support that concession, and (2) appellate counsel was ineffective in failing to challenge the application of NERA to defendant's sentence and in not challenging the applicability of aggravating factor two in connection with his sentence.*fn2
At the hearing, defendant testified that he had been misidentified as a perpetrator of the offenses, and that as a result, he directed trial counsel to move for a Wade hearing to challenge the out-of-court identifications, but that he had not done so. Defendant's testimony focused on his identification by witness Osana Farjian in connection with the first robbery. In that regard, defendant did not offer any evidence that the identification procedures were suggestive. Instead, he contended that the identification lacked foundation because he claimed that Farjian had disclosed in her statement that she had not seen his face.*fn3
Defendant further argued that counsel should have sought severance or joined in co-defendant's unsuccessful severance motion, because the diminished capacity or insanity defense being developed by co-defendant would have prejudiced him both because (1) the jury would have found incredible the claim that one defendant was insane and the other innocent and (2) Spring had implicated defendant in a statement to his examining psychiatrist.
Defendant testified that, as a consequence of counsel's ineffective representation, defendant recognized that he had "zero" chance of acquittal at trial, and that he suffered an "emotional breakdown" when counsel urged him to accept the State's plea offer. As a result, he did not understand that he would be subject to five years of parole supervision as the result of NERA, and if he had been aware of that fact, he would not have pled guilty.
Trial counsel also testified at the hearing, expressing his view that the facts of the matter suggested no viable defenses, and that he had previously urged defendant to accept a higher plea offer of twenty years, which defendant rejected. Trial counsel testified further that he did not file defendant's motion for a Wade hearing because a show-up identification was not considered at the time to be impermissibly suggestive, per se, and he did not find any evidence that the identification procedures utilized to obtain the identification by Farjian were in fact suggestive. He did not seek severance because he found no legal basis for doing so, since Spring did not, in fact, advance an insanity defense and since, because the psychiatrist who examined Spring was not on the State's witness list, he could have successfully prevented any inculpating statement made by Spring from being heard by the jury. Counsel also testified that he provided defendant with a full explanation of the NERA consequences of his plea at the time that the plea was accepted.
At the conclusion of the hearing, the motion judge issued a written opinion denying PCR, judging the arguments presented and the facts underlying them by the two-pronged standard adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), which requires a defendant to demonstrate that counsel's performance fell below professional standards of competence and to demonstrate additionally that there was a reasonable probability that the deficient performance prejudiced the defense. Addressing defendant's argument that counsel should have requested a Wade hearing to challenge the identification provided by witness Farjian, the motion judge agreed that the request should have been made since Farjian's statement regarding her opportunity to view defendant was ambiguous and the identification was made under show-up conditions that might have been suggestive. However, the judge found that, when seeking PCR, defendant bore the burden of establishing suggestibility, either through his own testimony as to what he observed or through the testimony or certification of Farjian. Since nothing at the hearing indicated suggestiveness, the second of Strickland's prongs was unmet.
The judge additionally rejected defendant's arguments regarding counsel's failure to move for severance, finding those arguments to be "both speculative and fanciful." The judge observed:
Petitioner's theory is that an expert would have testified for co-defendant Spring and would have repeated an out of court statement made by Spring inculpating petitioner. Firstly, that did not happen. Second, even if it were to unravel in such a fashion, [defense counsel] credibly testified that he would have objected. Obviously, the objection would have been sustained since petitioner's right to confront his accuser would be denied unless Spring actually got on the witness stand.
Thus, the judge found no grounds for a severance motion to have been granted.
Addressing the NERA aspect of defendant's motion, the judge agreed that "[a] review of the transcript of the pleas entered on April 2, 2002, does not reveal a textbook example of how this should be done by trial counsel," noting that it was incorrect for defense counsel to concede that "any fracture" would satisfy NERA's requirement, at the time,*fn4 of evidence of serious bodily injury, and that the weapon, being inoperable, was not "deadly" if merely displayed. However, the judge found that the handgun as utilized as a blunt instrument did meet the definitional requirement of a deadly weapon. He held: "A pistol whipping with a thirty-eight caliber revolver to someone's head could result in serious bodily injury and, in fact, has even at times resulted in death. Since the statute does not require serious bodily injury if the use or threatened immediate use of a deadly weapon occurs [in this fashion,] then NERA applicability has been established" for the purposes of the first and second robberies. With respect to the third victim, the judge found that if a hearing had been held, the prosecution would have been able to establish that the victim would have been subject to a pistol whipping, as well, thereby satisfying NERA's requirements. In rejecting defendant's arguments that, at the time of the plea, he was unaware that NERA required a five-year period of parole ineligibility and was unaware of the consequences of a violation of parole, the judge relied upon defendant's responses as set forth on the NERA plea form and defense counsel's "credible" testimony at the PCR hearing that he went over these issues with defendant just prior to the plea.
The judge also rejected defendant's argument that trial counsel was unprepared, finding no evidence to have been presented of required investigation that was omitted, witnesses who were not called, or documents that were not introduced into evidence. He likewise found no merit in defendant's argument that he had been pressured into taking a plea, relying in that respect on the factual findings of the trial judge, made during the plea and during defendant's motion to withdraw that plea. He found: "It was the attractiveness of the plea bargain which motivated his guilty plea, not any coercion or lack of a free will." As a final matter, the motion judge found that, with the exception of the trial court's reliance on aggravating factor 11, the court had invoked the proper factors at sentencing, and that we had previously concluded in connection with defendant's direct appeal that the erroneous reliance on factor 11 did not require a remand for resentencing.
Because the motion judge did not find merit to the issues raised by defendant in his PCR petition as they related to trial counsel, he likewise found no ineffectiveness on the part of appellate counsel in failing to raise them.
On appeal, defendant again raises the issues that were addressed by the motion judge in connection with the PCR hearing. After our full consideration of defendant's legal arguments, as applied to the facts set forth in the record, with one exception, we affirm, substantially for the reasons expressed by the motion judge in his well-crafted and thoughtful opinion. We find no reasonable probability that, but for the ineffectiveness of counsel, defendant would not have entered his guilty plea. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985).
Our one disagreement with the motion judge arises from his determination that a NERA sentence was properly imposed in connection with the third robbery. In that connection, our review of the record satisfies us that a factual basis for the imposition of a NERA sentence was not established by defendant's admission that he had threatened the victim with an inoperable gun, while denying that the victim had been struck with the weapon. See State v. Perez, 348 N.J. Super. 322, 325 (App. Div.), certif. denied, 174 N.J. 192 (2002); State v. Austin, 335 N.J. Super. 486, 488-94 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001); see also State v. Hernandez, 338 N.J. Super. 317, 322-23 (App. Div. 2001) (holding that "[t]he guilty plea suffices for NERA purposes when the elements of the offense provide the NERA factor or factors . . . or when the defendant's factual basis satisfies NERA."). As the issue is one of sentence legality, not excessiveness, see Rule 3:22-2(c), we remand this matter for resentencing on the third count of the indictment. Because the Graves Act does not require the use of an operable firearm, and because it is clear that defendant was advised of the applicability of that Act to his conduct, imposition a parole ineligibility period pursuant to that act is required. Perez, supra, 348 N.J. Super. at 326.
Defendant's convictions are affirmed; the matter is remanded for resentencing on count three of the indictment.