April 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DESIREE COOMBS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-11-1396 and 02-01-0066.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Axelrad and Parrillo.
In these two appeals, consolidated for purposes of this opinion, defendant Desiree Coombs challenges: (1) the denial of her petition for post-conviction relief (PCR); and (2) the denial of her Rule 3:21-10(b)(1) motion for change of custody to a drug abuse treatment and rehabilitation program. We affirm as to both orders.
By way of background, in November 2001, defendant was indicted on charges of third-degree theft by deception, N.J.S.A. 2C:20-4, and fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3); and, later, separately indicted for first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5). She entered pleas of guilty in both matters, pleading guilty to the third-degree theft offense charged in the first indictment and to the second-degree robbery and third-degree aggravated assault offenses charged in the later one, in exchange for dismissal of all other counts.
As to the former, defendant admitted to forging and cashing seven checks belonging to her grandfather, totaling "a couple thousand dollars." As to the latter, defendant admitted stealing the victim's wallet while her accomplice intimidated the victim, and both prevented him from leaving. Consistent with the plea agreement, on the first indictment, defendant was sentenced on February 28, 2003, to a five-year prison term, and, on the second indictment, to a concurrent, aggregate ten-year term subject to NERA's*fn1 85% parole disqualifier.
Prior to sentencing, defendant pro se moved to withdraw her guilty plea, arguing that she was denied her right to effective assistance of counsel since neither her former counsel nor substitute counsel had adequately reviewed her file or explained the law to her, and that substitute counsel had not taken adequate time to prepare for trial, but, instead, continually emphasized that defendant would not win at trial. As a result of these allegations, the trial court conducted an evidentiary hearing, at which both defendant and counsel testified.
According to counsel, a pool attorney with the Public Defender's Office, he has been practicing primarily in the field of criminal defense since 1988, trying about twelve or more cases per year in recent years. After defendant's initial attorney had been relieved, counsel was assigned defendant's file on November 26, 2002 and met with her the very next day for one and one-half hours discussing the robbery charge, the accompanying police report, and the victim's statement. Based on his review, counsel concluded that the State's case was strong since:
[the] victim was a working individual . . . had given a good description, wasn't intoxicated. He didn't have no [sic] reason or any bias for creating the issue, had given a description that was very close. The description was put to the police department. I believe it was the co-defendant's relative that provided additional information to the police department as to where to locate [defendant.]
At that time I was advising her as early - -at that time that it was my opinion that she should pursue a plea in this matter. I was advising her even earlier that I did not wish to try this case, not that I wouldn't try it, that in my professional opinion it was not a case that was or would have led to a good result.
Counsel further testified that he acted according to defendant's wishes to proceed with trial, and, after determining he had adequate time, arrived on the day of trial prepared to try the matter. Then, counsel made the strategic decision to, once again, explain the sentencing consequences for "not only all of the offenses, but even just a few of the offenses." Since defendant "was vehement about" not accepting a plea to first degree robbery, as she claimed there was no weapon involved, counsel successfully negotiated a second degree robbery plea, and "vigorously" shared his opinion with defendant that she should take the plea:
. . . I told her I think I'm pretty good, but I don't think I'm good enough to pull this one off. I would advise you to take this plea because I can't tell you what a jury will do. And I know what I said because I say it to all defendants: I can't tell you what a jury will do but I can tell you in my professional opinion it would be foolish to put this to a jury. It would be better to take a plea.
Defendant then agreed to enter the plea and filled out and signed the plea forms.
At the close of evidence, the court found counsel's representation adequate:
[Counsel] is a very qualified criminal defense attorney . . . . I accept and find true that when he received a file he reviewed it, he made the opportunity to and indeed went to Clinton and spoke to this lady for around an hour and a half about the file. He explained to her the facts and the law and gave her his opinion, which he should do as a lawyer. He should tell her if he thinks the case is a winable one or not. His opinion was, although there's no guarantee what will happen, he thought it best that given her exposure, which is significant in this case, that she take the plea.
Now, she didn't want to accept that and he prepared to go to trial. Over the weekend he prepared himself and was ready for trial on December 3rd.
Indeed, he did urge her, as a good lawyer should, what he thought was in her best interest. Her best interest in his view was the case was pretty strong against her, to attempt to negotiate a plea to limit her exposure as best she can. She I find accepted that and went for that.
Accordingly, the court denied defendant's motion to retract her guilty plea.
On direct appeal, defendant's sole claim of excessiveness of sentence was heard on our ESOA calendar*fn2 and rejected, save for a limited remand to determine jail credits. State v. Coombs, A-3766-03 (App. Div. June 3, 2005). Thereafter, the Supreme Court denied defendant's petition for certification. State v. Coombs, 185 N.J. 266 (2005).
Subsequently, on January 9, 2006, defendant filed a PCR petition, claiming ineffectiveness of both trial and appellate counsel, and that her plea was not entered knowingly or voluntarily. The petition was denied on both procedural and substantive grounds. As to the former, citing Rule 3:22-5, the PCR judge reasoned:
We litigated, in February, the issue of whether or not [defense counsel] was able to try the case and I found, quite clearly then, based upon his testimony, I found him credible, that he was, indeed, prepared, had reviewed the file, was prepared to go forward, but he had the duty to tell the woman if he thought it was a good case or bad case and, in his view, it was not a good case. She made a decision and took the plea.
The plea, seemingly, was a little better on the date she took it then it had been before. I have totally litigated, in February of 2003, the motion to retract. We will not re-litigate that now. She could have taken a direct appeal. Whatever the reason is, she didn't. I think she is, probably, barred based upon that, but even if she wasn't, based upon the record before me now, and we are not going to expand the record, Counsel, because everything is in here, as far as I could see on the issues before me, there is no issue of Strickland criteria here. The lawyer is a very qualified trial lawyer. He was prepared. I found him credible when he told me that. He had reviewed the case, he was ready to go forward. There was nothing in terms of outstanding investigation that would have been germane to this case. I mean, you can't say he should have had an investigation. Over what? If you are talking about there is an alibi, then you should have attached -- there is no alibi here. Just as an example. You had to attack the witness to say, "I would have testified as to A, B, C in this case." Nothing before me of that type.
The judge also found no substantive merit to the application:
I'm denying it anew based upon the record before me, which I had created in a hearing of February 28, 2003. There is no proof or conclusion I could truly reach that the defense, [counsel] in particular, was deficient and, in any way he performed on this lady. That she changed her mind is correct, but I denied her the right based upon change of mind, and the law, I think, is quite clear and I had the right to do that.
The judge also found defendant's plea was entered knowingly, freely and with an adequate factual basis.
On appeal, defendant raises the following issues:
I. DEFENDANT WAS DEPRIVED OF HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
II. AS DEFENDANT'S MOTION TO RETRACT HER GUILTY PLEAS WAS SUBMITTED PRIOR TO SENTENCING AND DEFENDANT WAS EFFECTIVELY COERCED INTO PLEADING GUILTY BY HER ATTORNEY'S INEFFECTIVE PREPARATION, SHE SHOULD HAVE BEEN PERMITTED TO RETRACT HER GUILTY PLEAS IN THE INTEREST OF FAIRNESS AND PURSUANT TO HER RIGHT TO TRIAL BY JURY.
III. DEFENDANT'S PLEA LACKED AN ADEQUATE FACTUAL BASIS. (Not Raised Below)
IV. DEFENDANT WAS DENIED [HER] CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL.
V. DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON [HER] POST-CONVICTION RELIEF CLAIMS.
Also, on November 1, 2007, defendant filed a motion for change of custody to a drug abuse treatment and rehabilitation program, pursuant to Rule 3:21-10(b)(1). The sentencing judge denied defendant's motion on the basis that the period of her parole ineligibility had not yet been served. Defendant appeals from this order, as well.
We have considered each of the claims in both appeals in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
A defendant may not relitigate on PCR a claim already decided on the merits. R. 3:22-5. Here, the trial court convened a plenary hearing on defendant's claim of ineffectiveness of counsel in support of her motion to retract her guilty plea; fully considered the evidence adduced therein; and rejected defendant's application in a reasoned opinion, finding counsel's representation of defendant to be adequate. On this collateral review, defendant's renewed claims of ineffective assistance of counsel are identical or substantially equivalent to those previously and completely adjudicated on the merits and are therefore precluded from further consideration here. See State v. Preciose, 129 N.J. 451, 460 (1992); see also Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438, 444 (1971).
We are also satisfied that defendant's claims of ineffective assistance of trial counsel fail substantively. On this score, it is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, she is obliged to show not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced her right to a fair trial. 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); State v. Fritz, 105 N.J. 42, (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Defendant offers no proof that her initial counsel's alleged deficient representation prejudiced her case, other than that replacement counsel then received the case with relatively little time before trial and did not thoroughly investigate the victim's credibility. Yet the facts, as found by the trial judge, clearly demonstrate that counsel understood the law and facts of the case, was prepared for trial, presented defendant with an option based on the facts and law, and negotiated the best possible sentence for defendant. As for testing the victim's credibility at trial, suffice it to say, counsel made the strategic decision at the time, based on the available evidence, that defendant should seriously consider the plea bargain, which defendant voluntarily and knowingly agreed to accept. As such, we perceive no egregious shortcomings on counsel's part that raise a reasonable probability that he undermined confidence in the case's outcome. See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Similarly unavailing is defendant's claim of error in the denial of her motion to withdraw her guilty plea for want of a factual basis. As a threshold matter, 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.
The claim also fails substantively. In order to satisfy the elements of second-degree robbery, it must be shown that, in the course of committing a theft, defendant (1) inflicted bodily injury or used force on another; (2) threatened another with, or purposely put another, in fear of immediate bodily injury; or (3) committed or threatened immediately to commit any crime of the first or second degree. N.J.S.A. 2C:15-1. The "threat" element is satisfied if a defendant's actions "create reasonable apprehension on the part of the victim that, if the theft were resisted, force would be used." State v. Culver, 109 N.J.
Super. 108, 111 (App. Div.), certif. denied, 56 N.J. 473 (1970), superseded by statute as stated in, State v. Carlos, 187 N.J. Super. 406 (App. Div. 1982).
At the plea hearing, defendant admitted that, after she and her accomplice took the victim to a more secluded area of the train station, she first attempted to remove his wallet from his back pocket. After the victim protested by placing the wallet in his front pocket, defendant's accomplice stood within six inches of him and instructed the victim in an intimidating voice not to touch defendant as she removed his wallet. Defendant then removed his wallet and took out its contents. According to defendant, her accomplice prevented the victim from leaving. We are satisfied that the requisite factual basis has been established.
Defendant's related claim that her guilty plea was neither free nor knowing is also procedurally barred under Rule 3:22-4, because it could have been, but was not, raised on direct appeal. In any event, the record amply belies defendant's claim. At time of plea, the judge asked defendant if she had enough time to talk to her trial counsel about the case, if trial counsel explained the facts of the case and what she faced if convicted at trial, and if she was satisfied with trial counsel's representation. Defendant replied "yes" to each question. On collateral review, defendant offers nothing, other than bare conclusions and naked allegations, to contradict the court's express finding that defendant entered her guilty plea freely and voluntarily.
Defendant's claim of ineffectiveness of appellate counsel is equally without merit. Such claims are evaluated under the Strickland/Fritz standard. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). In this regard, though appellate counsel must be an active advocate in providing assistance on direct appeal, he or she is not required to advance every argument, regardless of merit, urged by the appellant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835, 83 L.Ed. 2d 821, 828 (1985); State v. Worlock, 117 N.J. 596, 625 (1990). Indeed, "[m]atters of appellate strategy, like matters of trial strategy, are generally relegated to the discretion of counsel." Caruso v. Zelinsky, 515 F. Supp. 676, 685 (DNJ 1981), aff'd in part, vacated in part, United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982). By the same token, the fact that the legal claims raised by counsel prove ultimately to be unsuccessful does not constitute ineffective assistance of counsel. Worlock, supra, 117 N.J. at 625.
Here, we have already determined that defendant's claims of ineffective assistance of trial counsel, as well as her other challenges to her guilty plea, all lack merit. Consequently, appellate counsel cannot be deemed ineffective for failing to raise such non-meritorious claims. Nor, for the same reason, can the failure to raise these non-meritorious claims be deemed to have prejudiced defendant.
Lastly, defendant argues that the trial court erred in denying her motion for change of custody. We disagree. "[A] sentence cannot be changed or reduced under R. 3:21-10(b) below the parole ineligibility term required by statute." State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). Here, defendant is required under NERA to serve, at a minimum, eight and one-half years of her ten-year term meted out on February 28, 2003. At the time of her R. 3:21-10(b) motion, however, she had served less than five years and, therefore, was clearly not eligible for the relief she requested.