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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...