April 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MALIK YARRELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-08-2147, 00-08-2148 and 00-08-2149.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Stern, Rodríguez and Payne.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) embodied in an order of February 22, 2007. We affirm the order.
On December 18, 2000 defendant entered a negotiated plea to charges in multiple indictments, including two counts of murder, in exchange for dismissal of other charges and a recommended sentence of thirty years imprisonment, with thirty years to be served before parole eligibility. The plea was conditioned upon defendant's cooperation in testifying against co-defendants.*fn1
The negotiated plea permitted the imposition of consecutive life sentences if there was no cooperation. At the time of the plea, it was detailed that defendant "agreed to testify truthfully against all co-defendants," defendants Jamillah Bearfield and Jovar Persha on indictment 00-08-2149, and Persha, Norman James and Clifford McAdams on indictment 00-08-2147. The prosecutor explained:
Defendant is to give a truthful and factual basis under oath. This recommendation of 30 years with 30-year parole ineligibility period is based upon defendant's agreement to testify truthfully against all co-defendants, as stated earlier. If the defendant for some reason does not testify in accordance with this plea agreement this offer, this plea agreement will become null and ― null and void and the defendant will be sentenced to two consecutive life terms.
Both the plea form and defense counsel's statements at the plea hearing stated the recommendation similarly. Defendant acknowledged his understanding of the negotiated disposition:
BY THE COURT:
Q If they go to trial and you do not testify in those matters, or you testify to something different than what you say today when you talk about the co-defendants, then the 30 years, all of what must be served before you are subject to parole, then becomes two life terms running consecutive to each other, and that for each you will face 30 years before you are eligible for parole, which means you must serve at least 60 years in a State's prison. Is that your understanding of the plea agreement, sir?
A Yes, sir.
Defendant admitted his involvement, and described the roles of his co-defendants, in the shootings of Clarence Clark and Dwayne Charity. He also stated that he understood the practical consequences of his plea.
Immediately following the entry of defendant's guilty pleas, the State and defendant sought defendant's transfer to the Somerset County Jail to avoid the "danger of death or serious body injury if he remains housed in Essex County Jail." An order was entered providing for the transfer two days later.
On February 26, 2002, Assistant Prosecutor Michael White wrote to the plea judge:
For the record, the State did have a scheduled trial date for the co-defendants, Jamillah Bearfield and Jovar Persha on Indictment 00-08-02149 for March 4, 2001. The State made a motion before Judge F. Michael Giles to sever the defendants based upon their written statements. In an effort to prepare for trial, I did interview Malik Yarrell at the Somerset County Jail on Thursday, February 14, 2001 with the knowledge and consent of his attorney, Peter A. Liguori, Esq. Based on that interview regarding his proposed testimony, I found it to be contrary to the factual basis provided by him when he pled. I did advise his attorney and the co-defendants' attorneys of the difference in facts. Those statements compromised the position of the State in the prosecution of the co-defendants. Therefore, Mr. Yarrell's conflicting statements affect his credibility as a witness and the State's ability to utilize him.
Mr. Yarrell was queried on the second Indictment (Indictment No. 00-08-02147), the shooting of Clarence Clark. He did advise my investigator and myself that he was not present at the killing.
The State's position at the time of sentencing will be that the defendant should be sentenced to consecutive life terms as he has in effect made himself a non-witness, having given two versions of the facts surrounding the homicides.
Defendant's attorney responded by writing that defendant was "still ready, willing and able to testify against co-defendants in accordance with the plea agreement," that the prosecutor's office had not endeavored to "contact" defendant for fifteen months, that defendant did not know the cases had been assigned to White, a new prosecutor to whom he had "no introduction," that counsel did not have "an opportunity to speak with him" before being visited by White, and that defendant had no "trust" in the new prosecutor "and was fearful of fully incriminating himself again without first consulting his attorney." Counsel also noted the reason for the transfer to Somerset County and the continuing fear of defendant James "and his confederates who have been continuously sending threatening messages to him and his family members."
Persha subsequently entered a guilty plea, and indictment 00-08-2149 was disposed of without the need for a trial. However, defendant refused to testify against James and McAdams on indictment 00-08-2147. He was held in contempt and given a sentence to run consecutive to the murder sentences to be imposed.*fn2
The State advised the sentencing judge of defendant's lack of cooperation, and he received two consecutive life sentences with thirty years before parole eligibility on each for the murders and concurrent ten-year sentences on weapons charges.*fn3
On defendant's direct appeal, we thereafter remanded the matter for a "plenary hearing . . . on the issue of the breach of the plea agreement."
Judge Betty Lester thereafter concluded that defendant knew of the threats before pleading guilty, that there was no promise to provide special protection to defendant as a condition of the pleas, and that he had breached the agreement. On defendant's subsequent appeal we found "substantial credible evidence to support the judge's finding that defendant refused to testify for reasons other than expectation that he would be protected by the State." We upheld the finding "that defendant breached his plea agreement," and affirmed the conviction, but reversed for the entry of corrected judgments merging the possession of a weapon for unlawful purpose into the murder convictions and remanded for sentencing of defendant on the handgun permit violation. As we stated on the appeal from Judge Lester's determination:
As the judge noted in her decision following the remand hearing, defendant could well expect that his co-defendants would not be pleased to learn that he would be testifying against them at their trials. Defendant should not have been surprised that he would be threatened with harm if he carried out his agreement to testify truthfully against his accomplices. Defendant said he was threatened but none of the threats [were] corroborated. Even were we to accept defendant's assertions that he was threatened, we are not convinced that defendant's refusal to testify was due to a reasonable belief that the State would protect him. We are satisfied that there is substantial credible evidence to support the judge's finding that defendant refused to testify for reasons other than an expectation that he would be protected by the State.
We therefore are satisfied that the judge did not err in concluding that defendant breached his plea agreement by refusing to testify at the trial of his co-defendants. As the State points out, this is a situation where defendant is endeavoring to have "his cake and eat it too." In the plea agreement, defendant obtained the State's agreement to recommend an aggregate sentence of 30 years, with a 30-year period of parole ineligibility, despite his admitted involvement in two murders. In exchange for that recommendation, defendant was required to truthfully testify against his co-defendants. Defendant refused to testify and yet he wants to retain the benefits of the plea based on his unproven assertion that the State breached a promise to provide him with protection. We are convinced that in the circumstances defendant is not entitled to the benefit of the plea and he was properly sentenced to consecutive life sentences, each with 30-year periods of parole disqualification, as a consequence of his breach of the plea agreement. [(emphasis added).]
This PCR petition followed. In it, defendant contends that he was deprived of the effective assistance of trial counsel by being forced to testify against his co-defendants without counsel present, that his rights were violated because counsel wasn't present during his post-conviction interviews by the prosecutor in anticipation of his testimony, that he was deprived of the effective assistance of prior appellate counsel and PCR counsel, and that "the cumulative effect of the deprivation" of his "sixth amendment right to counsel . . . warrants reversal of the convictions and a new trial ordered, or in the alternative Mr. Yarrell receive the benefit of the plea agreement." He alternatively seeks a remand for a "full exploration and consideration of the issues relating to the deprivation of [his] right to counsel."
Defendant was entitled to a hearing on whether there was a willful breach of the plea agreement by his refusal to testify, but we remanded on that issue, and an evidentiary hearing was conducted before Judge Lester. Thereafter, we affirmed the convictions and the aggregate sentence, as well as the summary contempt because he refused to testify. He has now also had a hearing on the PCR petition before Judge Harold Fullilove, and the issue before us relates to the effective assistance of counsel. As to that, one thing is clear: the plea and conviction cannot be vacated by any post-judgment ineffectiveness. If counsel did not properly attend interviews in advance of defendant's post-plea trial testimony or during that testimony, and if defendant for some reason was deprived of counsel resulting in a breach of the agreement, the remedy would be enforcement of the sentence recommendation in the agreement. Hence, we summarily reject defendant's claim of entitlement to withdraw his plea.
Defendant alleges that counsel "failed to prepare him and be present during his trial testimony that was a condition precedent to his receiving the bargained for plea," and failed to prepare and be present at the interview with Assistant Prosecutor White, misinformed defendant "that the State would protect him from the persons he was testifying against," and openly discussed defendant's testimony in the holding cell where another inmate could hear everything.
The State points out that there are procedural bars to the post-conviction relief sought because the issues now raised were previously raised on the appeal from Judge Lester's determination on the remand that defendant (not the State) breached the agreement to cooperate and testify truthfully. The State points out that Judge Lester found that defendant's post-conviction statements were inconsistent with what he said at the plea, that he was unhelpful to the prosecution, that Assistant Prosecutor White did not breach any obligation to the defense, that the State made no promise of protection other than to transfer him to the Somerset County Jail, and that there was no "condition precedent" to the plea. As we already noted, Judge Lester concluded that defendant refused to testify "for his own reasons" and that he, not the State, had breached the agreement. Our affirmance of that remand determination indicates that we have previously reviewed everything now raised except the present claims of ineffective assistance of counsel at the remand proceeding, and our affirmance of Judge Lester's remand determination is essentially dispositive of this appeal. State v. Echols, __ N.J. __, __ (2009); R. 3:22-4; R. 3:22-5.
We nevertheless add the following. It is clear defendant's trial attorney, Peter Liguori, instructed defendant not to talk to anyone in the Somerset County Jail or any other place unless Liguori was present or counsel had been contacted. When White, who was newly assigned to the case, and his investigator visited defendant in the Somerset County Jail, defendant decided to speak with them. Furthermore, Liguori met with defendant at the holding cell at the Essex County Courthouse immediately before he was to testify,*fn4 and left after being advised, and feeling "confident," that defendant was ready to testify. Assuming, as we do, that defendant had the right to counsel throughout the post-plea interviews and testimony, particularly because he had not been sentenced and the sentence was dependent on his cooperation, see, e.g., United States v. Cronic, 466 U.S. 648, 659, n.25, 104 S.Ct. 2039, 2047, n.25, 80 L.Ed. 2d 657, 668, n.25 (1984); Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed. 2d 411, 417 (1972); People v. Montes, 663 N.Y.S. 2d 766 (N.Y. Sup. Ct. 1997), it is hard to see what more counsel could have done or how his representation led to a result that would not otherwise have occurred. See also State v. Harris, 181 N.J. 391, 440 (2004); State v. P.Z., 152 N.J. 86, 109-110 (1997).
In any event, at the PCR hearing before Judge Fullilove, defendant acknowledged that, but for one "additional factor," Judge Lester's determination was "res judicata." That factor was that remand counsel had not called defendant's former girlfriend to testify before Judge Lester about threats received to herself, defendant's child and defendant in the event defendant testified. Judge Fullilove permitted the girlfriend to testify at the PCR hearing, and concluded that, even if threats could be deemed a relevant excuse for the non-cooperation, the girlfriend was not "credible," and the failure to call her on the remand warranted no relief.
In sum, we find no basis for concluding that defendant was prejudiced by the conduct and performance of his trial or remand counsel. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). In fact, after the Somerset County Jail conference, counsel resurrected defendant's cooperation,*fn5 and defendant's attacks on counsel for communicating with defendant within the earshot of others in the Essex County holding cell rings hollow because his testimony was to be given shortly thereafter in open court, and in front of the co-defendants. Defendant's statements that he was placed in fear, without more, cannot be a basis for his failure to honor his commitment incident to the plea recommendation. Moreover, even assuming deficiency of trial counsel, we agree with both Judge Lester and Judge Fullilove that defendant was not prejudiced and, in any event, that the conduct of counsel did not result in defendant's failure to cooperate and a result which would not have otherwise occurred. For the same reason, we agree with Judge Fullilove that remand counsel was not ineffective.
The order denying PCR is affirmed.