On appeal from Superior Court of New Jersey, Law Division, Salem County, Accusation No. 07-03-0016-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Ashrafi.
Defendant Rashiar Lewis appeals from his guilty plea as an adult to aggravated manslaughter and his fourteen-year sentence with eighty-five percent to be served before eligibility for parole. We affirm.
On the night of January 22, 2007, at the age of fifteen, defendant led two of his cousins, one of whom was also a juvenile, in a strong-arm robbery and aggravated assault in Penns Grove, New Jersey. Defendant suggested that the three rob a man they saw walking and carrying shopping bags. They stalked the man, waiting for him to reach a dark area of the street. Defendant approached from behind and punched the man in the head. The victim fell, striking his head on the pavement. The cousins then kicked the man as defendant took his wallet. The three ran away and split about $105 taken in the robbery. A week later, the victim died of head injuries.
The police quickly developed leads and arrested the three teenagers within days of the crime. All three confessed. A juvenile delinquency complaint was filed against defendant on January 30, 2007, charging offenses that if committed by an adult would be conspiracy to commit robbery in violation of N.J.S.A. 2C:5-2a(1), purposeful murder in violation of N.J.S.A. 2C:11-3a(1), and felony murder in violation of N.J.S.A. 2C:11-3a(3). Counsel was assigned to represent defendant.
The same charges were brought against the two cousins. The State promptly offered to each of the three a plea agreement by which each would plead guilty to aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a(1), with a sentencing recommendation of fourteen years under the No Early Release Act, N.J.S.A. 2C:43-7.2, meaning that eighty-five percent of the term would be served before parole eligibility and each would serve five years of parole supervision after release from prison. The two juvenile defendants would have to consent to transfer of their cases to the Law Division. All three accepted the plea offers, entered guilty pleas, and were sentenced in accordance with their agreements.
On this appeal, the record does not include a transcript of the juvenile waiver hearing in the Family Part. There is no dispute, however, that defendant appeared in juvenile court with assigned counsel on March 5, 2007, and agreed to transfer of his case to the Law Division, where he would be charged as an adult. On the same day, defendant appeared with counsel in the Law Division and entered a plea of guilty to aggravated manslaughter under the plea agreement. He alleges on this appeal that he received ineffective assistance of counsel because his attorney did not have an autopsy report at the time of the guilty plea and should not have advised him to accept the plea offer.
Before the plea hearing, defense counsel discussed with defendant's grandmother, mother, and sister, all of whom were present in court, the plea offer and consequences of the guilty plea. He also reviewed with defendant all the questions and answers contained on the standard criminal plea form to ensure that defendant understood his rights and the consequences of his guilty plea.
At the plea hearing, the judge carefully inquired of defense counsel, the defendant himself, and the defendant's grandmother as his legal guardian whether they understood the terms of the plea agreement and the defendant's rights. They all answered affirmatively. In response to questions from the judge and defense counsel, the grandmother and mother both said they had concluded that it was in defendant's best interest to accept the plea offer. The judge conducted a hearing fully in accordance with the requirements of Rule 3:9-2, determining that defendant understood the charges, the terms of the plea agreement, and the consequences of his guilty plea, that he was entering the guilty plea voluntarily and not as a result of any threats or of any promises or inducements not revealed on the record, and that there was a factual basis for the plea.
Between the date of the guilty plea and the sentencing date, defendant discharged his assigned counsel and retained private representation. Shortly before the sentencing date, his new attorney moved to withdraw defendant's guilty plea. In support of the motion, defendant filed a certification alleging that assigned counsel had pressured defendant to waive juvenile proceedings and to plead guilty by threatening that he faced the death penalty if he did not accept the State's plea offer.
Before ruling on the motion, the court took brief testimony from the defendant and assigned counsel. Defendant testified that his assigned counsel told him that he would get more time in prison if he did not accept the plea offer, but he did not accuse the attorney of threatening him with the death penalty. He testified that his grandmother and mother told him that he faced the death penalty. Assigned counsel then testified that he had talked to defendant and his family members "quite a bit" about the plea offer but that he had never discussed the death penalty with them. Defendant's new attorney did not call the grandmother to testify, although she was present in the courtroom. Defendant's mother was not present at that hearing.
The judge denied defendant's motion to withdraw his guilty plea, finding that assigned counsel's advice about a potentially lengthier prison sentence had been appropriate. Defendant does not challenge the judge's ruling based on alleged prejudicial advice about the potential sentence that could be imposed if he went to trial. See State v. Slater, ___ N.J. ___, ___ (2009)(slip op. at 19-22) (standards applicable to motion to withdraw guilty plea before sentencing). Instead, defendant challenges his attorney's performance in recommending that he accept the plea offer without first receiving and examining an autopsy report. In his testimony, prior assigned counsel could not remember whether he had received the autopsy report by the time of the plea. The prosecutor represented that, at the time of the ...